CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
5.4 Negotiating Remedies With Authorities Parties may offer remedies in Phase I and/or Phase II of the investigation. The FNE may approach the parties to suggest remedies and discuss those offered by the par - ties, but it cannot impose remedies against the parties’ will. However, if the parties do not accept the remedies that the FNE considers necessary to properly safeguard competition, the FNE may block it. As for the procedural steps that must be taken, the parties can file their first remedy proposal at any time prior to the FNE’s final decision. Once the proposal is submitted, the reviewing period will be suspended for up to ten days in Phase I and up to 15 days in Phase II. During that term, the FNE must assess the proposed remedies to determine whether the transaction, subject to such remedies, is likely to substantially reduce competition. If the FNE does not consider the remedies sufficient, it will communicate this to the parties before issu - ing the Phase II or the prohibition decision, as applicable. The parties can prevent the FNE from issuing such decision by filing a new improved proposal, in which case the same procedure will be repeated. If the remedies are sufficient, the FNE must approve the transaction subject to the proposed remedies. When assessing the remedies, the FNE shall focus on their effectiveness in resolving the iden - tified competition concerns, their practicality for implementation, execution and monitoring, and their proportionality.
On the other hand, they can also offer behav - ioural remedies, which, according to the FNE Guidelines on Remedies, can be divided into: • quasi-structural measures focused on the market structure affected by the concentra - tion (eg, access and licensing obligations); • pure behavioural measures (eg, prohibitions on exclusivity clauses, conditional discounts, tying, arbitrary discrimination, among other matters); • obligations to prevent the internal transfer of information within the merging entities and their affiliates (Chinese walls); • remedies that focus on the regulation of mar - ket power; and • obligations regarding the buyer of the divest - ed package. Remedies Unrelated to Competition • The FNE is not entitled to request or accept measures that are not directly associated with According to the Guidelines on Remedies, rem - edies must be effective in preventing the con - centration’s ability to substantially lessen com - petition. Secondly, the FNE will assess whether the pro - posed commitments, in addition to being effec - tive, are feasible to implement, execute and monitor. competition concerns. 5.3 Legal Standard Finally, in addition to eliminating the transac - tion’s ability to substantially lessen competi - tion, the remedies must be proportional to the detected competition concern.
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