This presentation by Enrique VERGARA (President of the Competition Tribunal of Chile) was made during the discussion “Judicial perspectives on competition law” held at the 16th meeting of the OECD Global Forum on Competition on 8 December 2017. More papers and presentations on the topic can be found out at oe.cd/jpcl.

1. Judicial Perspectives on Competition Law:
Experience in Chile
Enrique Vergara
President Chilean Competition Tribunal
OECD Global Forum on Competition
December, 2017

2. A BIFURCATED MODEL:
INTERACTION BETWEEN TDLC AND
FNE

3. www.tdlc.cl
Competition authorities
Bifurcated system
Competition Tribunal
TDLC
Antitrust Prosecutor
FNE

4. www.tdlc.cl
Bifurcated model in Chile
FNE, antitrust
prosecutor
(file complaints)
Private actors
(file complaints)
Competition Tribunal
TDLC
Supreme Court
Competition law
enforcement lies within
the TDLC – sanctions
Only FNE has investigative
powers, whereas private
actors can only file claims.
Review on the merits (*)

5. www.tdlc.cl
Interactions between TDLC / FNE
• First interaction: the role of the Competition Court in the
investigations of the agency.
– Authorization of strong powers: dawn raids, wire taps.
– Authorization to initiate investigations without
communicating investigated parties.
– Approval of agency’s agreements.
– Resolving complaints from investigated parties.

6. www.tdlc.cl
Interactions between TDLC / FNE
• Second interaction: The FNE as a plaintiff in competition
cases (plaintiff). Implications:
– TDLC has stressed its independence from the FNE in this
regard and has emphasized that the FNE is identical to any
private actor.
– FNE has increased training and invested in state of the art
advisors to litigate before this specialized court.
– FNE usually brings its investigation files to the TDLC’s
process (e.g. cartels dawn raids included). Confidentiality
issues have arisen

7. www.tdlc.cl
Interactions between TDLC / FNE
• Third interaction: the role of the Agency and the
Competition Court as competition authorities:
– International affairs (e.g. OECD)
– Competition Law reforms
– Advocacy

8. SPECIALIZED VIS-A-VIS GENERALIST
COURT – JUDICIAL REVIEW OF TDLC
DECISIONS

9. www.tdlc.cl
Supreme
Court
Court of Appeals
General jurisdiction
Civil and Criminal Courts
CHILEAN JUDICIARY
Specialized tribunals do not belong to
the Judiciary, but they are supervised
by the Supreme Court
Specialized courts
• Intellectual Property
• Environmental
TDLC OTHERS
TDLC as a specialized court

10. www.tdlc.cl
Standard of review (1)
• The Supreme Court conducts a judicial review of the
TDLC’s decisions. It is a generalist court.
• This scrutiny is exhaustive, entails a review on:
– Legality
– The merits, including complex economic assessments.

11. www.tdlc.cl
Deference towards the TDLC
• Quantitative deference towards the TDLC: circa 75%
decisions confirmed by the Supreme Court from 2007-2017.
• BUT qualitatively a bit of interference towards the TDLC:
– James Hardie, predatory pricing, over-inclusive approach
(2006).
– 3G public bidding: limits to mobile operators and the
spectrum they can access (2009).
– Shell/Terpel merger: clearance by the Supreme Court,
remedies imposed (2013).

12. www.tdlc.cl
Deference towards the TDLC
• Supreme Court as a generalist court that can conduct
a comprehensive review of the TDLC’s decisions.
Implications:
– Parties can decide to challenge TDLC’s decisions as a
strategic leverage.
– The Supreme Court could establish and shape standards –
both substantive and of proof- to demonstrate a
competition violation.

13. Judicial Perspectives on
Competition Law:
Experience in Chile
Enrique Vergara
President Chilean Competition Tribunal
OECD Global Forum on Competition
December, 2017