Nuestra socia Stella Muñoz junto a los socios Diego Hernández y Tomás Pérez, y el asociado Nicolás Ossandón, escribieron para la Guía Antitrust Litigation 2022 de la publicación inglesa Chambers and Partners, en la sección Law and Pratice (Chile). A continuación, puede leerse el texto en su versión en inglés y la fuente original está disponible aquí.

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Law and Practice

1. Overview

1.1 Recent Developments in Antitrust Litigation

Current State of Development and Recent Developments in Antitrust Litigation

Compensation for damages arising from anti-competitive conduct qualified as such by the Chilean Antitrust Court (or TDLC, as per its Spanish acronym) has been a matter of recent interest. This interest has grown since 2016 with:

• the amendment introduced to the Chilean antitrust regulation, which gave exclusive jurisdiction on follow-on actions regarding individual damage claims arising from anti-competitive conduct to the TDLC, as it follows from Article 30 of the Decree Law No 211 on the protection of competition; and
• the amendment introduced to the Consumer Rights Protection Law to establish that class actions may be brought to pursue damages arising from violations of the Decree Law No 211 (Article 51 [2] Law No 19,496 on “Protection of Consumer Rights” (“Consumer Protection Law”).

Hence, after the issuance of the decision by which a firm or person is found guilty of such behaviour, the same tribunal is competent to evaluate and eventually award damages to the plaintiffs (affected persons in general, as well as consumers, as specified in 2.5 Direct and Indirect Purchasers). This litigation does not allow for a review of the factual basis of the antitrust decision but only the assessment of the damages.

Before 2016, the affected parties were entitled to bring actions for damages before civil courts, as explained in 2.1 Legal Basis for a Claim. Although the latter option is still available and does not require a previous decision from the TDLC convicting a firm, the case would be reviewed by a non-specialised court, on a case-by-case basis, that is based on individual interest presented in the suit.

Active Cases

As a manner of example, the TDLC convicted three supermarket chains (Cencosud, SMU and Walmart) for colluding on the price of poultry. Two consumer associations, as well as the National Consumer Service (or SERNAC as per its Spanish Acronym), have initiated litigations before the TDLC, to obtain relief for consumers affected by this case. All these proceedings are pending, and thus no final judgment has been issued yet.

1.2 Other Developments

Voluntary Collective Procedures between SERNAC and the Convicted Entities

Since Law No 21.081 entered into effect in 2019, SERNAC is entitled to open a voluntary procedure for obtaining a faster and comprehensive agreement regarding the award of damages following the antitrust sanctions imposed by the TDLC. Sanctioned companies may participate on a voluntary basis by offering compensation to the affected consumers. If this procedure fails, either SERNAC, consumer groups or consumer associations may bring an action before the TDLC, as has happened in the cases mentioned in 1.1 Recent Developments in Antitrust Litigation.

2. The Basis for a Claim

2.1 Legal Basis for a Claim

Legal Basis for a Claim for Damages

Pursuant to Article 30 of the Decree Law No 211, the legal basis for a claim for damages is the existence of a previous decision of the TDLC and/or the Supreme Court, if appropriate, convicting one or more parties for the execution of one or more anti-competitive act.

Article 3 of said Decree Law provides a non-exhaustive list of acts considered anti-competitive conduct (ie, collusion, abuse of dominance, predatory or unfair competitive practices, and interlocking, among others).

Follow-on Actions

As mentioned, since 2016, after Law No 20.945 of 2016 entered into effect, the Chilean antitrust regulation was modified giving exclusive jurisdiction to the TDLC in the follow-on actions for damages. In these cases, the existence of the anti-competitive conduct cannot be subject to review. Claimants must prove the damages, their amount, and the causation between the antitrust violation and the damages.

In the case of class actions regarding collective or diffuse interests (as defined in 2.5 Direct and Indirect Purchasers), the parties (consumers) affected by anti-competitive conducts, as determined by the TDLC, can also request compensation before the TDLC through the consumer protection procedure established in the Consumer Protection Law. The claimants are not required to have taken part as an interested party during the prior proceedings before the TDLC.

Standalone actions

Alternatively, actions for damages can be brought on a civil foundation as a standalone action before civil courts, without the need for a prior decision from the TDLC. In these cases, the claimant must prove both the existence of the conduct and the damages, as well as their nature and extent, causation, and the fraud or negligence of the infringing party.

2.2 Specialist Courts

The TDLC is the specialist court in Chile for antitrust matters This tribunal is composed of five judges – three lawyers and two economists who are experts in competition and industrial organisation – who decide on claims for antitrust violations and follow-on claims for damages. This court has the exclusive jurisdiction over antitrust matters for the entirety of the Chilean territory. The same applies to class actions for damages brought forth in accordance with Article 51 (10) of the Consumer Protection Law.

The Third Chamber of the Supreme Court, the instance of judicial review of the decisions passed by the TDLC, is comprised of five justices.

As mentioned in 2.1 Legal Basis of a Claim, when it comes to antitrust claims for damages, plaintiffs may choose:

• to file a standalone suit before the civil courts even before the TDLC issues its judgment regarding the legality of the alleged anti-competitive conduct; or
• to file a follow-on claim before the TDLC.

Whichever path is chosen by the claimant, each of these actions will follow independent trails. There are no procedural rules allowing the transfer of these cases to the jurisdiction of the specialised antitrust court, or vice versa. In fact, the actions could be brought at once and processed in parallel, and may conclude with different results.

2.3 Decisions of National Competition Authorities

Binding Nature of the NCA’s Decisions

The National Economic Prosecutor’s Office (FNE as per its Spanish acronym) investigates alleged anti-competitive behaviour, representing the interest of the public. Although it can bring actions seeking to sanction the entities responsible for such behaviour, its actions are not binding on the TDLC or the court as an investigatory body, which includes claims for damages.

Claim of Damages by the FNE

The FNE has no legal standing to bring actions for damages before the TDLC or the civil courts. As per individual litigation, legal standing for bringing these actions is limited to the affected parties. Legal standing for class actions, on the other hand, is limited to a group of no less than 50 consumers, consumer associations and SERNAC, as specified in 3.1 Availability.

The FNE also has not partaken in the processes through which the TDLC assesses damage claims issued by the affected parties of an anti-competitive practice or by organisations on their behalf. The same applies to claims brought before civil courts.

2.4 Burden and Standard of Proof

Civil regulation of onus probandi states that the claimant has the burden of proof regarding the validity, extent and nature of the damages and the causation between the damages and the anti-competitive conduct. Claimants usually rely on expert reports to corroborate the existence of damages, their nature (pecuniary damages, whether it be a direct consequence of the anti-competitive behaviour or loss of profit, or non-pecuniary) and extent.

According to the Civil Code, the defendant must produce evidence to refute the alleged claim, and thus they bear the burden of proof regarding facts that modify or extinguish claimants’ right to compensation. On this basis, for example, the alleged cartelist would have to prove that it was not its client who suffered from its conduct but rather the final consumer, who had to pay a higher price including the surcharge caused by the cartel.

In Chile, the relevant standard of proof for damages cases, established by case law, is that of “reasonable probability” or “preponderance of evidence”, which is founded on a rational decision made by a court that a determined hypothesis has a higher probability of occurring than other scenarios. In the case of class actions, the standard the courts have usually applied is that of reasoned judgment.

2.5 Direct and Indirect Purchasers

Where the conduct of suppliers generates price increases, from the economic perspective, the damage that is generated can affect direct customers, intermediaries of the goods or producing companies that use the goods as inputs, and the direct or end consumers of the good.

Article 1 (1) of the Consumer Protection Law defines a consumer or user as any individual or legal entity who, by virtue of any onerous legal act or contract, acquires, uses or enjoys a good or service as a final recipient.

On the other hand, with respect to suppliers, the same body of legislation, on Article 1 (2), defines them as individuals or legal entities, who habitually produces, manufactures, imports, constructs, distributes or commercialises goods or provides services to final consumers for which a price or fee is charged. The regulation expressly excludes them from the definition of consumers, leaving them in a position similar that of the indirect consumer or intermediary.

The case law in this area has shown an evolution in terms of extending the concept of a consumer, recognising not only onerous contractors, but also those who enjoy or use the good or service without necessarily having entered into a contract with the supplier. In this sense, it is possible for an indirect consumer to bring an action for damages, especially in the case of class actions that protect a diffuse interest. However, there is no consensus among academics.

On this last point, Article 50 of the Consumer Protection Law distinguishes between three types of interests that aim to be guarded by the legal actions contemplated in such legislative body: individual, collective and diffuse.

• Individual interest ‒ Complaints or actions brought exclusively in defence of the rights of a single affected consumer.
• Collective interest ‒ Actions brought in defence of rights common to a determined or determinable group of consumers, linked to a supplier by a contractual relationship. In order to bring forth this action, the contractual relationship between the consumers and the infringer or infringers must be proved.
• Diffuse interest ‒ Actions brought in defence of an undetermined group of consumers whose rights are affected.

In all cases, plaintiffs must prove damage caused by the convicted party or parties. It must be noted that, in the case of collective interest, both material and moral damages may be awarded to the plaintiff if their moral or psychological integrity has been affected.

2.6 Timetable

Average Duration of the Proceedings

When it comes to damages before the TDLC, two proceedings must take place: the first is aimed at deciding whether an antitrust violation took place, while the second is limited to the assessment of the damages derived from the antitrust violation. According to TDLC statistics, as of 2022, an antitrust litigation proceeding before the TDLC lasts an average of 574 days from the filing of the complaint to the issuance of the judgment.

Where a TDLC decision is challenged before the Supreme Court, the average processing period is of 390 days from the filing of the appeal.

On the other hand, none of the damages claims proceedings have been completed before the TLDC, so it is not possible to give an estimate of their duration.

Eventually, prior to the second procedure before the TDLC being initiated, a voluntary collective procedure might take place, which can last for up to three months. Upon the supplier’s request, or by decision of SERNAC, the procedure may be prolonged for up to three months. Furthermore, in exceptional cases, an additional extension is possible, if SERNAC issues a reasoned decision, For example, this was the case regarding the difficulties that arose due to the COVID-19 pandemic in the voluntary collective procedures that took place in 2020 and during part of 2021.

As for the payment of the awarded damages, the decision of the court will establish the deadlines, which should be considered in the average timeframe where the fulfilment of the consumer’s interest is concerned.

3. Class/Collective Actions

3.1 Availability

In accordance with the provisions of Article 51 (10) of the Consumer Protection Law, as well as Article 30 of Decree Law No 211, a consumer who has been harmed by a party convicted of anti-competitive behaviour, either directly or indirectly, as explained in 2.5 Direct and Indirect Purchasers, may bring forth an individual action seeking compensation against said party.

A class action against said party seeking compensation may be brought only by the following entities:

• SERNAC;
• a consumers' association established at least six months before the action is brought and duly authorised by its board of directors to do so; or
• a group of consumers concerned with the same interest, not less than 50 persons, duly identified.

More details about the procedure followed before the TDLC are mentioned in 1.1 Recent Developments in Antitrust Litigation and 2.1 Legal Basis for a Claim.

The Chilean class action scheme is on an opt-out basis. In accordance with Article 53 of the Consumer Protection Law, once the class action has been filed and declared admissible, consumers who may consider themselves affected may appear to become a party to it, or may also reserve their rights. Once they become part of the class action, they forfeit their right to take legal action based on individual interest.

Individual interest suits will be accumulated in the collective suit, unless the parties have been summoned to hear the final judgment of the court.

3.2 Procedure

Legal standing for class actions is limited to a group of consumers of no less than 50, consumer associations, and SERNAC. Beyond these cases, litigation is necessarily conducted on an individual basis.                                                                                                                                      

Chilean procedural law does not establish a certification phase. There only is an admissibility phase: if the action is filed by the parties with legal standing and complies with the other formal requirements common to all lawsuits, the action will be admitted.

3.3 Settlement

A settlement can be arranged between the parties. In the case of a follow-on action brought pursuant Article 30 of Decree Law No 211, the TDLC can, at its discretion, open a negotiation phase. If a settlement is reached between the parties, it will be subject to examination by the TDLC and further approval, if it is not contrary to antitrust regulation.

4. Challenging a Claim at an Early Stage

4.1 Strike-Out/Summary Judgment

According to Article 30 of the Decree Law No 211, the action for damages arising from the issuance by the TDLC of an enforceable final judgment shall be brought before the same court and shall be processed in accordance with the summary procedure established by the Civil Procedure Code. It must be noted that this is not a process specifically designed for antitrust cases, but which contemplates more limited deadlines and will produce a decision in a shorter term than an ordinary procedure.

Given that the summary procedure is established as the default procedure for these cases, there are no specific circumstances that must be present for its application.

In such cases, the procedure cannot go further without the correction of said errors. If the error cannot be rectified, the case will be dismissed after a certain period of time.

4.2 Jurisdiction/Applicable Law

Chilean antitrust regulation is applied along the entirety of the national territory. For this to occur, the anti-competitive acts executed by one or more entities must produce effects in Chile. In the case of class actions for damages, it is also necessary that the acts for which damages are claimed have been executed in Chile. The parties entitled to bring the action must be domiciled in Chile.

Conflicts between multiple jurisdictions or the application of different regulations (ie, foreign) will be determined pursuant the rules set out in the Bustamante Code, which establishes rules regarding private international laws, including those referring to conflicting laws between states, to which Chile is a member.

4.3 Limitation Periods

Article 20 of the Decree Law No 211 sets a four-year statute of limitations to claim damages, starting from the issuance of the decision of the TDLC condemning the anti-competitive practice. Regarding damage claims brought before the civil courts pursuant the procedure established by the Civil Procedure Code, the same statute of limitations of four years is established, but from the perpetration of the act.

5. Disclosure/Discovery

5.1 Disclosure/Discovery Procedure

Chilean procedural rules do not contemplate a discovery stage. According to Article 349 of the Civil Procedure Code, during a trial, a party may request the disclosure of certain and specific documents – although not necessarily all of them – which are in the possession of the other party or of a third party, provided they are directly related to the matter in dispute and are not of a privileged or confidential nature. Thus, the request is not equivalent to discovery, given that the parties are not required to reveal all documents regarding the trial.

The expenses made necessary by the exhibition shall be borne by the party requesting it, notwithstanding the decision of the court regarding the payment of the costs of the trial itself.

The production of documents may be requested before the start of the trial as an evidentiary measure or as diligence in the trial itself. For this purpose, a hearing to produce documents will be held. In such a hearing, those documents that contain commercially sensitive information that may affect the competitive development of the disclosing party – the party in possession of the information – or information subject to attorney-client privilege. If the court accepts the request for confidentiality, the producing part must provide the other parties redacted versions of such documents.

In the case of class actions, the defendant suppliers are obliged to deliver to the court all instruments ordered by the court. In the event of a refusal deemed to be unfounded by the court, the judge may assume the allegations of the opposing party to have been proved (Article 51, final paragraph).

5.2 Legal Professional Privilege

As stated in recent case law, the TDLC decided that certain documents can be withheld from disclosure on the basis that they are subject to attorney-client privilege. This requires that the documents have been produced by outside counsel, thus excluding in-house counsel.

The same criterion has been adopted by the FNE in its investigations. In the case of confidential information, the parties must submit redacted copies of the documents, given that they will eventually become available to the public based on the principle of transparency which governs these procedures. This applies to trials regarding the determination of damages caused by anti-competitive behaviour, since this information may affect the competitive unravelling of the firms participating in the affected markets.

5.3 Leniency Materials/Settlement Agreements

Leniency agreements in Chilean law cover only antitrust infringements. These agreements are confidential unless the TDLC orders that they be waived during the antitrust litigation. Please note that Decree Law No 211 excludes damages from leniency agreements.

However, nothing prohibits the infringing party from reaching private agreements or settlements with the affected party. These agreements remain confidential, but the TDLC can order its production (total or in part) in the course of the litigation, depending on the grounds of the request.

The fact that a settlement agreement has been reached between the parties involved in a procedure to determine damages will be made public. As for its content, in accordance with Article 53 B of the Consumer Protection Law, if the infringing party makes a settlement offer, or the parties come to a settlement, its content will be of public knowledge. The judgment must establish a minimum set of actions aimed at informing those affected by the respective agreement of the claims in their favour, facilitating their collection and, ultimately, achieving the effective delivery of the amount corresponding to each consumer.

6. Witness and Expert Evidence

6.1 Witnesses of Fact

Witness testimony is admitted during the litigation trial in any form, namely verbal or in writing. Nevertheless, oral testimonies have a higher probative value.

When verbal testimony is given before the TDLC, witnesses are subject to cross-examination. The court may also examine the witness during the hearing.

Procedural rules provide tools to compel witnesses to attend and depose.

6.2 Expert Evidence

In antitrust proceedings, it is common to use expert evidence to prove or support economic and technical aspects that may be relevant to the assessment of damages, the structure and characteristics of the relevant market, and the probability and possibility that, based on objective calculation, the prices or development of the market was conditioned by an anti-competitive practice by one or more agents.

It should be noted that this evidence is usually submitted in writing rather than verbally. In this case, witnesses are not subject to cross-examination. Also, the parties do not need prior permission from the court to submit such testimony, which is generally in the form of a report.

For these experts to testify at trial, the TDLC must first approve a motion requesting a hearing for these witnesses to give verbal testimony. The TDLC’s decision on this matter is completely discretionary. If the TDLC grants the motion, witnesses will be subject to cross-examination.

The TDLC do not require experts to produce joint statements indicating the areas in which they agree or disagree in advance of trial. Also, the TLDC is open to adopt alternative methods of hearing expert evidence regarding the economic evidence submitted at trial.

Experts in the same field may be heard by the TDLC if the parties request this, either by submitting various expert reports or by requesting a hearing to have them provide evidence verbally.

7. Damages

7.1 Assessment of Damages

Although there is no legal provision or established case law dealing with this matter, damages are expected to be assessed based on a counterfactual, that is to say, a hypothetical scenario where the anti-competitive practice did not take place. This is generally calculated considering and comparing the prices, quality, or other competitive factors, before and after the anti-competitive practice. This shall take into account the structure of the market, the overall economic and financial situation of the country, and other factors which could have affected competition, other than an anti-competitive agreement.

Regarding the nature of the damages that may be awarded to the plaintiffs affected by anti-competitive practices, the current regulation provides that “all damages caused” shall be compensated. In national legislation, according to the Civil Code, these correspond to compensatory damages (both economic and non-economic). In relation to class actions, the law expressly contemplates the possibility of claiming moral collective damages.

Compensatory Damages

First, consequential damage seeks to compensate the damage effectively caused to those directly affected by the practice, or, from a consumer law perspective to the consumers or suppliers affected. These correspond to the income the plaintiffs ceased to receive as a direct cause of the infringement, or the costs they had to incur to fix such damage.

Second, national legislation also contemplates loss of profits, which seeks to compensate the loss of earnings of those affected by the conduct, including interest.

In the case of anti-competitive behaviour, the court will mainly assess:

• if consumers had to pay a higher price to purchase the good or service, or if they were not able to buy the good; or
• if the goods or services were available in a lower quantity than consumers would have desired were it not for the anti-competitive behaviour of the convicted party or parties.

This anti-competitive behaviour must be the direct cause of such damages.

Finally, national legislation contemplates non-material damage; the objective is to estimate the reputational damage and loss of prestige that the practice caused the economic agent that was affected by the conduct. In the case of consumers, it encompasses moral damages.

There are other potential damages to the market in general that could be alleged, such as that there was a decrease in the quality and/or variety of products in the market or that the firms not part of the agreement modified their behaviour, following the cartelised firms (similar to an “umbrella effect”).

Punitive Damages

As a general rule, Chilean legislation does not contemplate punitive damages. However, in a modification to the Consumer Protection Law in 2018, academics are of the opinion that punitive damages were expressly established for the first time.

Indeed, Article 53 B c) of the Consumer Protection Law states that the decision which upholds the plaintiff’s claim in processes protecting collective or diffuse interests of consumers, the court may increase the amount of the damages by 25%, taking into consideration the following aggravating circumstances:

• if the supplier has been previously sanctioned for the same infraction;
• if the anti-competitive practice caused serious economic damage to consumers;
• if the anti-competitive practice damaged the physical or psychological integrity of consumers or, in a serious manner, their dignity; or
• finally, in the event of having endangered the safety of consumers or the community, even if no damage has been caused.

7.2 “Passing-On” Defences

The pass-on defence is available in class actions for damages of collective interest, in the terms previously defined. In terms of damages, and especially in cases of cartels, capital flow is relevant in terms of causality in two instances:

• when the direct consumer claims damages due to an upstream cartel, where the cartelised suppliers can allege the reduction of such amount to the extent that they can prove that there was a passing on of the price premium to the final consumers; and
• when the direct consumer claims the quantification of the potential damage that the collusive agreement generated to the final or indirect consumers.

7.3 Interest

Compensation for damages includes the payment of interest accruing as soon as the final judgment on damages is issued. It is understood that no other court may decide on the matter, or the statute of limitations to bring an appeal will expire.

Hence, national legislation only contemplates the payment of post-judgment interest.

The interest to be accrued, in the absence of a special rule to the contrary, shall be the ordinary interest rate, which corresponds to the weighted average of the interest rates charged by the banks established in Chile.

8. Liability and Contribution

8.1 Joint and Several Liability

A distinction must be made between fines and damages.

With regard to fines, Decree Law No 211 expressly provides for the possibility of imposing joint and several payments of the fines placed by the TDLC on legal entities responsible for an anti-competitive act or conduct on the directors of those entities and those persons who have benefited from the respective act or conduct, provided that they participated in its commission.

With regard to compensation for damages, tortfeasors will be jointly liable for damages derived from unlawful practices under rules by the Civil Code.

8.2 Contribution

The Chilean Civil Code contemplates the possibility of a civil lawsuit for the collection of the excess of the corresponding quota that was paid by one of the infringing parties.

9. Other Remedies

9.1 Injunctions

Pursuant to Article 273 et seq of the Civil Procedure Code, injunctive relief is available.

The TDLC may, at the request of a party, order any precautionary measures that it deems necessary or appropriate to ensure the interests at stake. These measures may be dictated at any stage of the trial or before its initiation.

Once the request is submitted, the TDLC will decide on it after a brief term with or without hearing from the affected party after its request. The injunctive measure may be decreed by the court without notice to the affected party, in which case the measure will be obtained almost immediately.

The party against which the measure is requested may oppose it, in which case a parallel procedure (an “incidente”) will be processed. In this case, after three days of the notification of the opposition, the court will decide whether the measure is decreed.

The measures ordered are essentially provisional, that is, they shall only last as long as there is a risk of an adverse effect if the measure is not upheld. Therefore, these measures may be amended or revoked at any stage of the case. Also, they are proportional, meaning that they are limited to that which is strictly necessary to ensure the interests at stake.

For them to be granted, the applicant must show that the circumstances constitute at least:

• a serious indication of the right claimed or the anti-competitive practice; and
• the existence of the reasonable endangerment of the applicant’s rights.

In sum, the applicant must show the court that, if not for this measure, the probability of its interests being fulfilled during the trial is severely diminished.

When granting the measure, the TDLC may require the applicant to provide security in case the measure causes damages to another party.

A decision granting or rejecting an interim measure will be communicated to other affected parties. However, in exceptional circumstances, the measures may be put into effect before notice is given to the person against whom it was ordered, if there are sufficient grounds for doing so according to the TDLC. If the motion is granted, the applicant must give notice to the affected party within five days of the issuance of the court’s decision, or else the measures taken will be void. The TDLC may extend this period for a reasonable cause.

There are no additional requirements when making an application without notice.

9.2 Alternative Dispute Resolution

Chilean antitrust regulation allows only for a settlement called optionally by the TDLC in case of a damage claim brought upon its jurisdiction derived from a follow-on action.

The TDLC may call for settlement as many times as it deems necessary. Also, the parties may come to a settlement which must later be approved by the TDLC.

Finally, and as explained in 1.2 Other Developments, a voluntary collective procedure between SERNAC and the convicted entities may take place. The settlement in the voluntary collective procedure is subject to the approval of the civil court.

In the context of the collective proceeding before the TDLC, it is also possible to reach an agreement (compromise, conciliation or settlement), which must be approved by this court.

The Chilean arbitration statute is based on the principle that arbitration is possible as long as it is not prohibited by law, provided that all parties involved agree to it. Given the confidential nature of arbitration, there is no information as to past arbitration proceedings in relation to antitrust damages. However, their existence cannot be ruled out, as there are no rules prohibiting such a possibility.

10. Funding and Costs

10.1 Litigation Funding

In Chile, especially regarding antitrust matters, there has been little development of ex ante financing mechanisms for legal actions brought before the TDLC. This does not include the procedural and personal costs that could proceed as determined by the TDLC and the court in their final judgment.

10.2 Costs

Pursuant Article 138 et seq of the Code of Civil Procedure, costs are awarded to the party that has been totally defeated in a claim or any ancillary procedural issue arising in the course of the litigation, to the extent that it is deemed that there was no reasonable basis to litigate.

For the security of payment of said costs, the claimant can ask for injunctive relief that can be enforced through a guarantee or other measures that the court deem reasonable and proportionate to secure the settlement of the debt.

11. Appeals

11.1 Basis of Appeal

Chilean antitrust regulation contemplates a sui generis request (akin to an appeal) for review of the TDLC's final decisions called “recurso de reclamación” before the Court.

At first, said review was limited to a legality check of the TDLC's decisions, using a standard of “clear error” in the application of the law or “abuse of discretion” by such tribunal. The consequence of the institutional deference was that few decisions were overruled by the Supreme Court. In recent years, the court has assumed a more leading role in the Chilean antitrust system, more frequently overruling the TDLC's technical and economic analysis in favour of establishing its own.

As explained in previous sections, the aforementioned role could also be duplicated for the TDLC’s decisions regarding damage claims.

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