Law N° 20,945 (the "Law"), published on August 30,
2016, amended law decree number 211 (the "DL 211") which
regulates anti-competitive practices in Chile. Two of the most
significant changes that are introduced by the new antitrust law
include defining the interlocking of directors and relevant
executives as anticompetitive conduct, and the obligation to report
the direct or indirect acquisition of more than 10% of a
The Law adds a new letter d) to the catalog of conducts in
article 3 of DL 211, including as a new anticompetitive
conduct the simultaneous participation of a person
in relevant executive positions or as director in
two or more companies that compete against each other, provided
that the business group of each one of the companies has an annual
income that exceeds approx. USD3.9 million during the last calendar
A company is given 90 days from the end of the year in which the
income threshold is surpassed to regularize the interlocking
situation. If the term expires and the simultaneous participation
in the positions remains, then the infraction will be deemed
This provision has a 180 day period of vacancy from the day of
publication (August 30, 2016), after which it will enter into
This provision is expected to generate debate as to the meaning
of "competitor" and "relevant executive
In the new article 4° bis of the DL 211, the Law adds the
obligation to notify the national economic prosecutor
(FNE) about the direct or indirect acquisition of more
than 10% of the capital of a competing company by a company
or by an entity of the business group, provided that both
the acquiring and the acquired companies have, separately, annual
incomes for sales that exceed approx. USD3.9 million during the
last calendar year.
For the purposes of calculating the percentage of participation,
both the shares that are owned directly by the company as well as
those managed by third parties will be considered.
If the conditions indicated above are met, the acquisition
must be reported to the FNE within 60
days of the closing of the transaction.
Shareholders with existing investments in competitors must
report their holdings to the FNE within 180 days of the publication
of the Law (August 30, 2016).
This is an unprecedented provision that is expected to generate
a robust debate as to when the FNE should intervene and challenge
this type of cross-ownership between competitors.
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The Tribunal of the Administrative Council for Economic Defense determined, last Wednesday, December 4, 2013, the opening of an administrative proceeding to investigate the abuse of dominant position by the Gemini Consortium, a joint venture constituted by Petrobras, White Martins and GNL Gemini for the commercialization of liquefied natural gas.
The new Brazilian Competition Law introduced relevant changes, which shall affect the business environment for companies doing business in Brazil.
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