Legal Alert: E-Commerce Regulation

24 September, 2021

September 24, 2021 / By Matías Zegers, Jorge Timmermann, Paulina Farías y José Tomás Musalem. On 23 September 2021, the Electronic Commerce Regulation (the “Regulation”) was published in the Official Gazette. The purpose of the Regulation is to strengthen the transparency and quality of the information provided to Consumers on Electronic Commerce Platforms regarding the characteristics, essential features, price of the products and services offered and all other relevant information to encourage informed decision-making when purchasing products or contracting services. The Regulation defines E-Commerce Platform as any internet site or platform accessible through electronic means, which allows Sellers to offer products or services, and Consumers to purchase or contract them, as appropriate (“Platform” or “Platforms”). Thus, a Seller may offer products or services on a Platform of its own or of a third party, who would be considered as an Operator, both being subject to the provisions of the Regulation. Likewise, Sellers are considered to be those public or private suppliers that frequently offer goods or services to Consumers, for which a price or fee is charged through Platforms, and Operators are those suppliers that make a Platform available to Sellers, whether their own or a third party’s, so that they can offer their products or services to Consumers. Among the issues addressed by the Regulation, it is established that for the Consumer’s consent to be understood as formed, the Consumer must have previously had clear, understandable and unequivocal access to the general terms and conditions of the contract and the possibility to store or print them. In addition, it clarifies that silence and the mere visit to a platform do not constitute acceptance and therefore do not impose any obligation on the Consumer. On the other hand, the Regulation also deals with the provision of online information, determining the form in which this information should be provided, as well as the language and timing in which it should be presented to Consumers, so that they have the necessary background information to make an informed consumer decision. In that order, it is established that not only information relating to the product or service offered on the Platform (such as characteristics, origin, guarantees, etc.) should be provided, but also certain information that allows the identification of the Seller and/or the Operator as well as the means by which it is possible to contact them, as appropriate. If applicable, the Operator shall inform about its relationship with the Seller and the obligations it will assume towards Consumers. Regarding product information, the Regulation emphasizes the Seller’s duty to publish or provide the Operator with the terms and conditions of the contract, i.e. payment conditions and associated means of payment; exchange and return policies; information on total cost, including the breakdown in case it includes transport, dispatch or delivery, as well as conditions for the latter; information on stock and availability; right of withdrawal under the terms of Article 3 bis of Law No. 19,496 on Consumer Rights Protection; information on the contact support; etc. Likewise, the Regulation provides that, prior to payment for the product or service, the Consumer must be provided with […]

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Chile: New rules for the Merger Control Procedure of the Ministry of Economy enter into force on November 2

6 September, 2021

06 September, 2021 / By Felipe Bahamondez, Sofía O´Ryan and Macarena Alliende With the aim of updating and strengthening the merger control regime, the National Economic Prosecutor’s Office (“FNE”) today published the new rules for the merger control procedure of the Ministry of Economy, approved by Supreme Decree No. 41 of May 7, 2021 (“New Regulation”), which enter into force on November 2 of this year. The New Regulation reflects the opinions and assessments of potential notifiers in the 2019 public consultation done for the previous regulation. The main changes are: Defines the subjects obliged to provide information during merger control proceedings. Reduces the requested information in the ordinary and simplified procedure, for example, the information related to entities of the business group is narrowed only to those with activities in Chile. In the ordinary procedure, it extends the request for information on plausible relevant markets with smaller horizontal, vertical, or conglomerate overlaps, applying simplified procedural rules for those plausible, non-affected markets. Sales and databases of notifying parties are requested for the purpose of calculating thresholds. It expressly references the failing firm defense, and the need to provide proof in such cases. Establishes new grounds for the application of the simplified procedure, including, for example, when an economic agent goes from having joint to sole control, and in cases where a joint venture is created which intends to develop activities other than the activities of its parents. Creates a special notification procedure in cases where there is no horizontal or vertical overlap between the economic agents. On this last point, the FNE has called this new procedure a “fast track”, as it requires less information than a common simplified procedure and is focused in the preliminarily assessment of the risks of the operation. Specifically, corporate meshes and information on relevant markets are not requested. However, the parties will still have to provide the information, databases, calculations, and elements of conviction leading to prove the assumptions that allow the procedure. We hope this information is of interest to you. Contacts For more information, please contact: Felipe Bahamondez Partner Sofía O´Ryan Counsel This report provides general information on certain legal or commercial issues in Chile, and is not intended to analyze in detail the matters contained herein, nor is it intended to provide particular legal advice on such matters. The reader is advised to seek legal advice before making any decision regarding the matters contained in this report. This report may not be reproduced by any means or in any part without the prior consent of DLA Piper BAZ | NLD SpA. (c) DLA Piper BAZ | NLD SpA 2021.

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Public Initiatives for a Carbon Credit Market in Chile

24 August, 2021

24 de august, 2021 / By Felipe Bahamondez and Roberta Andreani. Some years ago, the tax legislation established the so-called Green Tax, that is, an annual tax on emissions of particulate matter (PM), nitrogen oxides (NOx), sulfur dioxide (SO2) and carbon dioxide (CO2), produced by establishments whose fixed sources exceed the levels established by law. Almost 7 years after the creation of this tax, the Ministry of the Environment has launched a public consultation on the Regulation that establishes the obligations and procedures related to the evaluation, verification and certification of projects for the reduction of pollutant emissions to compensate for emissions taxed with the Green Tax according to the law. The deadline for comments on the proposed Regulation may be submitted until September 3, 2021. The proposed regulation defines the compensation of emissions as the act by which emissions reductions that are recorded in a certificate issued by the Ministry of Environment or by an external certification program approved by the Ministry, may be deduced from the taxable emissions. For purposes of determining the amount of taxes to be paid, taxpayers may compensate all or part of their taxable emissions through the implementation of emission reduction projects. Also, the holders of emission reduction certificates may authorize their use to compensate taxable emissions through the Registry of Pollutants Releases and Transfers (“RETC”), after the taxpayer requests the use of the certificates required for such purposes. Additionally, the proposal contemplates an emissions compensation platform, in charge of the Superintendence of Environment and that will be accessed through the RETC. Emission reductions must comply with certain requirements in order to compensate taxable emissions, for example, they must be measurable, verifiable, permanent and additional to obligations imposed by prevention or decontamination plans, emission standards, environmental qualification resolutions or other legal obligations. According to the transitory articles of the proposed Regulation, the methodologies, resolutions and registries referred to, must be issued and operational before January 1, 2023. Contacts For more information, please contact: Felipe Bahamondez Partner This report provides general information on certain legal or commercial issues in Chile, and is not intended to analyze in detail the matters contained herein, nor is it intended to provide particular legal advice on such matters. The reader is advised to seek legal advice before making any decision regarding the matters contained in this report. This report may not be reproduced by any means or in any part without the prior consent of DLA Piper BAZ | NLD SpA. (c) DLA Piper BAZ | NLD SpA 2021.  

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Legal Alert: New Law limiting the generation of disposable products and plastic bottles

16 August, 2021

16 August, 2021 / By Felipe Bahamondez and Roberta Andreani. On August 13, 2021 was enacted Law No. N° 21.368, which seeks to protect the environment and reduce the generation of waste by (i) restricting the delivery of single-use products in food establishments, (ii) encouraging reuse and (iii) certifying single-use plastics, and (iv) through regulating disposable plastic bottles. Single-use products: Single-use products are defined as cups, mugs, bowls, cutlery, chopsticks, pots, mixers, staws, plates, cups, boxes or containers of prepared food, trays, sachets and non-bottle lids, as long as they are not reusable. The law prohibits the delivery of such products for in-store consumption, regardless of the material they are made of. In the case of consumption outside the establishment, the delivery of disposable products is allowed as long as they are made of recoverable materials other than plastic, or certified plastic, the latter being understood as that composed totally or partially of materials produced from renewable and compostable resources. Disposable plastic bottles: With regard to disposable plastic bottles, the law establishes that they must be composed of a percentage of plastic that has been collected and recycled within the country. The law also establishes the obligation to offer beverages in returnable bottles and to receive the same type of bottles from consumers.  Come into force, Enforcement and Regulations: The law came into force with its publication on the Official Gazette in [indicar fecha], without prejudice to special rules regarding some of the provisions contained therein. The enforcement of compliance with the law is entrusted to the Municipalities, expressly stating that any person may denounce non-compliance with the obligations regulated in it. Finally, the Ministry of the Environment must issue the regulations referred to in the law within 18 months of its publication. These regulations will specify, among other matters, those related to the certification of plastics. Contacts For more information, please contact: Felipe Bahamondez Partner * This report provides general information on certain legal or commercial issues in Chile, and is not intended to analyze in detail the matters contained herein, nor is it intended to provide particular legal advice on such matters. The reader is advised to seek legal advice before making any decision regarding the matters contained in this report. This report may not be reproduced by any means or in any part without the prior consent of DLA Piper BAZ | NLD SpA. (c) DLA Piper BAZ | NLD SpA 2021.

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Legal Alert: Anonymous Whistleblower

6 July, 2021

6 de julio, 2021 / By Matías Zegers and Josefina Consiglio On April 13th, 2021, the Law No. 21,314 regarding Transparency and Responsibility of Market Agents that modifies various regulations, among them, the Legal Decree No. 3.538, which creates the Financial Market Commission (“CMF” or the “Commission”) was published in the Official Gazette, to create the Anonymous Whistleblower. On July 5th, the CMF issued the Rule with General Character No. 456 (the “Rule”), which regulates the Anonymous Whistleblower status. Who can have the Anonymous Whistleblower status? Anonymous Whistleblower are those who voluntarily, and in accordance with CMF specifications, collaborate in investigations, providing to the Commission Investigations Unit with substantial, precise, true, verifiable, and previously unknown information by it; to detect, verify or confirm violations of the laws that are competency of the CMF, or information regarding the participation of alleged participants in these violations. Anonymous Whistleblower must expressly request that the CMF grants the status as such. According to the Rule, this request must be submitted through an electronic form prepared for these purposes available on the Commission website (, by those who want to obtain Anonymous Whistleblower status in accordance with webpage instructions. This request must contain the data and information indicated by the Rule. The identity of the Anonymous Whistleblower shall remain secret, except when the whistleblower waives anonymity. There are obligations to keep the whistleblower’s identity secret for anyone who has become aware of it. The identity of the whistleblower will be secret from the date of the aforementioned request, regardless of whether the status of Anonymous Whistleblower is granted. Additionally, the Rule defines what will be understood as substantial, precise, true, verifiable, and previously unknown to the CMF information. The information provided by the Anonymous Whistleblower must be in reference to violations which, because of their relevance, gravity, or magnitude, are those which in conformance with the contents of articles 23 and 24 of the Legal Decree No. 3.538, may end in an investigation and subsequent sanctions by the Commission. Therefore, will not be considered as anonymous reports those that referrers to unprosecutable violations, that the sanctioning power has expired, are only of minor magnitude or which is unlikely to bring about an investigation due to those rules. Who may not have Anonymous Whistleblower status? Those who have committed the sanctioned conduct or that are victims of such conduct. Additionally, there sanctions for those who request the status of Anonymous Whistleblower knowingly providing false or fraudulent information. Do Anonymous Whistleblower receive rewards? Yes, the Anonymous Whistleblower has a right to receive a percentage of the fine which is applied as a result of the investigation and procedures in which collaborates. This amount may not be less than 10% of the fine, nor greater than 30% of the applied fine or 25,000 UF (whichever is of lesser value). The Rule states the CMF Council will establish, in the decision to sanction, the percentage of the fine which the Anonymous Whistleblower will receive, as the result of the collaboration to prove sanctioned conduct, considering the relevancy factors of the information provided; opportunity, collaboration of the Anonymous Whistleblower, among […]

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Legal Alert: CMF publishes regulations in consultation to set TER for Pension Funds

22 June, 2021

22 June, 2021 / By Diego Noguera and Jorge Timmermann On June 17, the Commission for the Financial Market (“CMF”) published in consultation a draft regulation to set maximum fees to be paid by the Pension Funds. Article 45 bis of D.L. No. 3.500 requires the Superintendence of Pensions and the CMF to establish annually, through a joint resolution, the maximum fees that may be charged to the Pension Funds for their investments in funds and other types of instruments in which they invest. The purpose of the published regulation under consultation is to establish the maximum fees that may be paid by the Pension Funds for investments made in mutual fund shares, investment funds and other financial instruments, for the period from July 1, 2021 to June 30, 2022. The proposed regulation contemplates the following modifications: The maximum fees set for this period are, in general, lower than those established for the previous period, with the exception of alternative assets. It is specified in the definition of commission or TER, in the case of alternative assets and the equivalent TER, that the “value of the investment” (invested capital) should be understood as the valued investments (held in the investment portfolio) plus the distributed and non-recallable investments. For securities representing financial indexes, the database used is modified to exclude ETFs from constituencies other than the USA. The “United States Exchange Traded Funds” database is used. For gold representative securities, the Bloomberg database was changed to the Morningstar Direct: Global Exchange Traded Funds database. The determination of the statistic is modified, using the 75th percentile of the TERs of each fund category for the two time series used and subsequently averaged, with the exception of alternative asset funds, real estate and infrastructure funds and gold representative securities, which continue to use the 90th percentile of the TERs for the two time series considered in the calculation. Infrastructure funds were not considered for this period, since this type of fund was not included in the database used. The detail of the proposed maximum fees by type of asset or investment is as follows: Foreign and domestic mutual funds and domestic investment funds (securities). Type of asset Geographic Area Style/Type Company Maximum Fee Stock Developed, Emerging and Global Index 0,36% Developed and Global Other 1,00% Emerging Other 1,25% Bond Developed Index 0,20% High Yield 0,84% Other 0,67% Emerging 0,94% Global 0,78% Balanced 0,86% Liquidity 0,29%   Securities Representing Financial Indexes Type of asset Geographic Area Style/Type Company Maximum Fee Stock Developed and Global 0,57% Emerging 0,70% Bond Developed and Global Other 0,33% Emerging 0,50% Developed and Global High Yield 0,50%   Alternative Assets Type of  Investment Maximum Fee Private Equity (including co-investment) 2,08% Private Debt (including co-investment) 2,06% Fund of Private Equity Funds 3,70% Fund of Private Debt Funds 3,68% Domestic Real Estate and Infrastructure Investment Funds 2,03% Gold Representative Security 0,63%   The public consultation process will take place between June 17 and 24, 2021. Contacts For more information, please contact: Diego Noguera Socio dnoguera@dlapiper.clJorge Timmermann Socio * This report provides general information on certain legal or commercial issues in Chile, […]

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New Guidelines and Instructions of the FNE for Merger Control

13 May, 2021

13 Mayo, 2021 / By Felipe Bahamondez, Sofía O´Ryan and Macarena Alliende. With the objective of updating and strengthening the merger control regime, the National Economic Prosecutor’s Office (“FNE”) announced yesterday the release of new Guidelines on the assessment of horizontal mergers (“Guidelines “), which will be submitted to public review until June 11, along with instructions on Pre-Notification Consultations by the FNE (“Instructions“). The Guidelines replaces the 2012 version, incorporating modifications related to mandatory filing for merger control, advances in jurisprudence, and specific guidelines on digital markets and platforms. Some notable aspects of the new Guidelines which differentiate it from its previous version are: Relevant Market and Substitutability: the FNE will only define the relevant market when the effects of a transaction must be analyzed in depth, which will speed up the review process. Regarding substitutability, the FNE incorporates new economic indicators such as the GUPPI (Gross Upward Pricing Pressure Index), as well as other qualitative considerations. Joint Ventures: greater certainty is provided for analysis, emphasizing on the possible coordinated risks that may arise. Digital Markets and Platforms: competitive effects of two-sided markets are included, highlighting the consequences of mergers on new elements such as the privacy of personal data. At the same time, certain special characteristics of digital markets are identified (e.g., network effects and tipping), along with mechanisms that allow dynamism within them, such as multi-homing (simultaneous use of apps). Additionally, through the new Instructions, the FNE recognizes and provides a procedure for the voluntary process prior to notification (Pre-notification), through which parties to a transaction can contact the Merger Division to raise their questions and discuss their queries, to avoid errors or omissions in the filing, promoting speed and efficiency during merger control. The Instructions distinguish between two types of pre-notifications, which will determine the procedure to be followed: (i) Pre-notification for simple questions; and (ii) Pre-Notification for complex questions and draft notifications. Regarding the last procedure, it will last between 5 and 10 business days, and the consultant is required to provide information, such as a summary of the transaction, the identification of the parties and their economic activities, along with the specification of the consultation. When the queries concern the nature of the transaction, the FNE will grant a formal communication in writing when discarding that a certain act or contract has the nature of a transaction that is subject to merger control. Contacts For more information, please contact: Felipe Bahamondez Partner Sofía O´Ryan Counsel * This report provides general information on certain legal or commercial issues in Chile, and is not intended to analyze in detail the matters contained herein, nor is it intended to provide particular legal advice on such matters. The reader is advised to seek legal advice before making any decision regarding the matters contained in this report. This report may not be reproduced by any means or in any part without the prior consent of DLA Piper BAZ | NLD SpA. (c) DLA Piper BAZ | NLD SpA 2021.

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Law No. 21.325 – New Immigration and Foreigners Law

20 April, 2021

20 April, 2021 / By Luis Parada, Gabriela Andrade and Ignacio Abogabir. On April 20, 2021, and after eight years of processing, the New Immigration and Foreigners Law (the “New Immigration Law”) was published in the Official Gazette, which replaces the current legislation, dating from 1975, and which was evidently surpassed by the reality of globalization and migratory flows, updating the Chilean institutions in this matter. About it we can point out the following: General aspects: In general terms, the New Migration Law strengthens the migratory institutionality, modifies the procedure for obtaining residence permits, and imposes obligations to the State, in terms of giving greater traceability to the migratory situation of foreigners during the different stages of the visa process. Migratory categories are modernized to the economic needs and global displacement, such as the one that recognizes the permit for seasonal employees. Residence visas must be requested from the corresponding Consulates and processed from abroad, so that foreigners will enter the country with an already determined migratory category. This restricts the current system, which freely allows the transition between the status of tourist and that of resident authorized for the development of remunerated activities, a figure that did not allow transparency from the beginning of the intentions to work of the great majority of people who entered the country as tourists. It is established that the President of the Republic will define a National Policy on Migration and Foreigners and a Council on Migration Policy is created. The National Migration Service (the “Service”) is created, which will replace the Department of Immigration (“DEM”), which will be in charge of granting, extending and revoking all residence and permanence permits, except in the case of official residents, which will be the responsibility of the Ministry of Foreign Affairs. The principle of the best interest of the child and adolescent is incorporated, indicating that the State will adopt all necessary measures to ensure the full exercise of their rights, as soon as they enter the country and regardless of the immigration status of their parents or the adults who have them in their care. It refers to the obligation of the State to create all the necessary conditions for persons with disabilities referred to in Law No. 20,422 (on Equal Opportunities and Social Inclusion of Persons with Disabilities) to be able to apply for their residence permits. An imperative prohibition of entry is established for foreigners who have been convicted, are being prosecuted, charged, accused or judicially persecuted abroad, as well as for those individuals who execute or have executed acts that Chilean laws classify as crimes against foreign security, national sovereignty or internal security. This is one of the main changes of the new regulations in relation to the previous system, whose prohibition of entry with respect to these persons was optional for the authority. The changes in the migratory categories originated by the New Migration Law will in no case affect the acquired rights of foreign citizens residing in the country. Dependents will be authorized to perform remunerated activities, subject to the conditions and restrictions to be established by the regulations. […]

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Labor Alert: Legality of the PCR testing in employees and labor risk of obtaining movement permits in quarantine for contracting companies’ employees

7 April, 2021

07 April, 2021 / By Luis Parada, Gabriela Andrade and Diego González. Recently, the Labor Directorate (“LD”) has referred to the legality of requiring PCR tests to the company’s employees (opinions No. 1124/10 of March 30 and 1189/011 of April 1st). In these opinions, the LD has indicated the following: As a general rule, it is considered discriminatory requiring a negative Covid-19 PCR test, as a condition for granting the work agreed in the employment agreement, to all kind of employees, new or old staff, and whether to start or to continue working for the company. On the contrary, a PCR test can be requested as a requisite for granting the work agreed, to the extent that there is a reasonable suspicion of contact of the employee that requires going to a medical center to be tested with a PCR, in accordance with the current criteria of the health authorities. Notwithstanding the above, in compliance with the mandate to protect the life and health of employees, the company may require its personnel to take a PCR test (without conditioning the granting of the agreed work), to the extent that this test is financed by the company. Obviously, if the result is positive for the virus, the employee will have to stop providing services and will be entitled to medical leave and the corresponding subsidy of his/her remunerations, for the period determined in accordance with the health criteria in force. In addition, if such an examination is required by the employer, this measure must be included in the company’s Internal Regulations on Order, Hygiene and Safety. As part of the regulation to be incorporated in this document, it will be necessary to include the mechanism that ensures that this measure will be adopted in an impersonal manner, either universally or randomly, in order to avoid the risk of discrimination through this means. Questions remain opened regarding the lawfulness of conditioning work to the existence of a negative PCR, for services that require forced coexistence of employees (e.g., those who spend the night in camps) or for those employees who must directly work with groups at high risk of suffering the coronavirus disease, who even though, they may have been vaccinated, have a remaining risk of contracting the disease. As we have seen, these rulings clarify important aspects of the company’s powers and require the company to update its internal regulations. It is also important to consider, in the application of these measures, the convenience of reaching agreements with employees and unions when the examinations are to be carried out outside working hours and/or in places other than the usual workplace. Finally, in the recent opinion issued by the LD, dated April 1st, 2021 (No. 1190/012), this Government department has clarified that if, in compliance of the Rules of Movement Permits in Quarantine, a company (principal) requests permits for employees of a contracting company that provides services to the former, that cannot be interpreted as a sign of an employment relationship between the employee and the principal. Contacts For more information, please contact: Luis Parada Socio * This report provides general […]

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Regulatory Alert: New Regulation of the REP Law: Goals for Containers and Packaging

19 March, 2021

19 March, 2021 / By Felipe Bahamondez and Roberta Andreani. On March 16, Decree No. 12 of 2020 was published in the Official Gazette, which establishes collection and recovery goals and other obligations with respect to containers and packaging, which are defined as priority products in the Law of Extended Producer Responsibility and Promotion of Recycling. This regulation joins Decree No. 8 of 2019, published in January of this year regarding another category of priority products, tires, meaning that as of this date the are four missing regulations to be issued in relation to priority products defined in REP Law: (i) oils and lubricants, (ii) electrical and electronic equipment; (iii) batteries and (iv) cells. With respect to the collection and recovery goals for packaging, the regulation distinguishes between domestic and non-domestic waste and establishes certain common rules to prove compliance with the goals set. Regarding waste management systems, the regulation foresees individual and collective systems, and states that those collective systems of less than 20 producers will be able to meet their collection and recovery goals only with the waste generated by the packaging introduced into the market by the producers that are part of such management systems. One of the initiatives to reduce waste is the possibility for producers to submit to the Ministry projects to reduce waste generation, which, if approved, will mean a reduction in the recovery targets that producers will have to comply. Finally, the Decree recognizes the role of other actors such as Base Recyclers, Municipalities or associations of municipalities with legal personality, and provides guidelines on how they should regulate the matter and carry out tenders in this regard. Contacts For more information, please contact: Felipe Bahamondez Socio   * This report provides general information on certain legal or commercial matters in Chile, and it is not intended to analyze in detail the matters contained in it, nor it is intended to provide a particular legal advice on them. It is suggested to the reader to look for legal assistance before making a decision regarding the matters contained in this report. This report can not be reproduced by any means or in any part, without the prior consent of DLA Piper BAZ | NLD SpA. (c).

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