CHILE LAW AND PRACTICE Contributed by: Fernando Lathrop Aubert, Francisco Cárcamo Valdés, Jimena Illanes Diez, Joyce Jankelevich Mayer, Macarena Jaramillo Solís, Michelle Niedbalski Ramírez, Nicolás Maldonado Leyton and María Fernanda Heusser Errázuriz, Lathrop Mujica Herrera & Diez Abogado
how the transaction might profoundly alter competi - tive dynamics. For example, could one firm gain pro - longed control over key inputs, effectively sidelining new entrants? The analysis also explores whether the deal creates incentives for anti-competitive co- ordination. Though intangible, innovation often proves decisive for long-term market evolution. In specific regions, the effects of concentration can diverge sharply from national-level impacts, adding layers of complexity to the analysis. Beyond historical data, future scenarios are modelled to assess whether the transaction might indirectly for - tify entry barriers. For transactions with competitive risks, the FNE may impose approval conditions. These range from asset divestitures to restrictions on commercial strategies. Even deals below notification thresholds may face scrutiny under Article 3 of the Competition Law, if they exhibit signs of restricting competition. The FNE retains the power to act ex officio, especially where market structure or behaviour suggests anti-compet - itive effects, regardless of transaction size. 6.3 Remedies and Commitments In jurisdictions with a merger control regime, such as Chile, authorities have a variety of tools ranging from market-shifting structural remedies to continuous behavioural obligations. These are not mere regula - tory impositions but carefully calibrated interventions aimed at preserving competition while fostering inno - vation and economic growth. Structural Remedies Bold, direct, and often disruptive, structural remedies aim to reshape the market by eliminating competitive risks at their core. They are as follows. • Mandatory divestitures – requiring the sale of strategic assets such as factories, brands or even entire business units. These measures fragment market dominance while opening the door for new entrants.
• Business splits – even more radical, these force companies to unwind mergers or divide combined entities into independent operations. While effective, these remedies face logistical hurdles, such as ensuring viable buyers who can sustain the divested assets’ competitiveness. Behavioural Remedies Behavioural remedies focus on influencing the actions of the merged entities without dismantling their opera - tions and are as follows. • Access commitments – ensuring fair access for competitors to critical infrastructure such as distri - bution networks or patented technologies. • Contractual restrictions – prohibiting exclusiv - ity agreements that block market entry or restrict consumer choices. • Price caps – imposing ceilings to prevent abuse in pricing, especially in sensitive or highly concen - trated markets. However, their effectiveness hinges on continuous oversight, which introduces administrative complexity. Hybrid Solutions Competition concerns often require a dual approach. Hybrid measures combine structural divestitures with behavioural commitments. For example, a company might be required to sell part of its assets while com - mitting to competitive pricing in specific regions for a defined period. Monitoring and Compliance The implementation of these remedies does not end with their imposition. Authorities may appoint inde - pendent monitors, require periodic reports or even audit key operations to ensure compliance. While intrusive, these measures are crucial to prevent rem - edies from becoming superficial fixes. 6.4 Antitrust/Competition Enforcement In Chile, the Competition Law and Supreme Decree No 41 of 2021 grant the FNE extensive powers to intervene in transactions that might jeopardise com - petition. These powers include blocking deals or
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