• 6 July, 2021

    Legal Alert: Anonymous Whistleblower

    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 (www.cmfchile.cl), 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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  • 22 June, 2021

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

    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.cl Jorge Timmermann Socio jtimmermann@dlapiper.cl * This report provides general information on certain legal or commercial issues in […]

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  • 13 May, 2021

    New Guidelines and Instructions of the FNE for Merger Control

    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 fbahamondez@dlapiper.cl Sofía O´Ryan Counsel soryan@dlapiper.cl * 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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  • 20 April, 2021

    Law No. 21.325 – New Immigration and Foreigners Law

    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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  • 7 April, 2021

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

    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 lparada@dlapiper.cl * This report provides general […]

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  • 19 March, 2021

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

    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 fbahamondez@dlapiper.cl   * 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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  • 8 March, 2021

    Legal Alert: Extension of the Employment Protection Law and New Social Security Caps

    8 March, 2021 / By Luis Parada, Gabriela Andrade e Ignacio Abogabir. Extension of Employment Protection Law benefits: On March 6, 2021, Supreme Decree N° 279, of 2021, of the Finance Ministry was published in the Official Gazette, which extends the validity of the Employment Protection Law  benefits (Law N° 21,227), and, in addition, grants the right to additional payments charged to the Social Unemployment Insurance Fund, in the indicated cases. The validity of the Employment Protection Law benefits is, as follows: Until June 6, 2021: The possibility to access to the Unemployment Insurance payments is extended, in the event of suspension of the employment relationship by an authority act that doesn’t allow to provide agreed services or by agreement of the parties, in accordance with Title I of Law N° 21,227. It is authorized to grant up to a fifteenth payments (15) charged to the Social Unemployment Insurance Fund, for the beneficiaries of its benefits and whose employment relationship is suspended by an act of authority that doesn’t allow to provide agreed services. iii. In accordance with the Parenting Protection Law (Law N° 21,247), the possibility for parents to suspend unilaterally their employment agreements is extended, while the operation of educational establishments that their children would attend remains suspended, by an authority act (it applies to children born from the year 2013). It is noted that the possibility of requesting the parental preventive medical leave due to the COVID-19 disease depends on the validity of the State of Exception of catastrophe due to public calamity, associated with the pandemic caused by the COVID-19 virus. Until July 31, 2021: the possibility of signing agreements to reduce working hours is extended. New Social Security Caps: The Pension Authority has recently reported, from February 2021, the amounts of the new social security caps. Thus, the new monthly social security caps to calculate the mandatory payments of the Pension Fund (AFP), Health Insurance and Labor Accident law system has been set at 81.6 UF (approx. USD 3,300.-). For its part, the monthly social security cap that must be considered to calculate Unemployment Insurance contributions is 122.6 UF (approx. USD 4,900.-). Social Security caps must be readjusted annually when the real remuneration index reported by the National Institute of Statistics (INE) registers positive variations, in accordance with current law. The indicated social security caps will be applied from the payment of the social security payments corresponding to the salaries of February 2021, which must be paid until March 10 of this year, but if the social security payment is made electronically, this period is extended until March, 13. Contacts For more information, please contact: Luis Parada Socio lparada@dlapiper.cl * 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 […]

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  • 1 March, 2021

    Legal Alert: CMF: New exceptions to the registration of public securities offerings

    March 01, 2021 / By Diego Noguera and Jorge Timmermann On February 22, the Financial Market Commission (“FMC”) published General Rule No. 452 (“GR 452”), which exempts certain public offerings of securities from the registration requirement and amends General Rule No. 336 of 2012, which establishes securities offerings that do not constitute public offerings (“GR 336”). GR 452 adds new exceptions to those already established by General Rule No. 345, seeking to reduce financing costs, providing smaller companies with new tools to obtain resources from the public, through the issuance and offering of securities. GR 452 sets forth: 1. Excepted Public Offerings. The following public offerings are exempted from the requirement of registration of the issuer or security: i. those securities that may only be acquired by Qualified Investors; ii. those offerings made in national stock markets, provided that the total accumulated amount to be raised by the issuer or offeror in the 12 months following the first offering made in the stock exchange does not exceed the equivalent of 100,000 UF (USD 4,000,000 approx.), and that the offeror or the issuer complies with the information requirements established by the corresponding stock exchange; iii. those that establish as a requirement to complete each transaction, that the investor acquires at least 2% of the capital of the issuer; iv. those whose purpose is to compensate employees; and v. those that deal with securities that confer to their purchasers the right to membership, use or enjoyment of facilities of educational, sports or recreational establishments. 2. Amendments to GR 336. i. It incorporates, within the possibilities for an offer not to be deemed a public offer, that it be directed to a maximum of 50 investors that are not Qualified Investors. ii. It adds that in those securities offerings whose unit value is equal to or greater than 3,000 UF (USD 120,000 approx.), it will not be necessary to verify the presence of Qualified Investors or the maximum number of investors indicated in the preceding point. iii. It incorporates as a possibility that the communication of the offer be made in English. iv. Modifies the section on Responsibilities and Safeguards, by establishing that the people or entities that offer securities exempted from public offerings may obtain a declaration from the person acquiring these securities to indicate what type of investor he/she is, and the fact that he/she has become aware that the securities to be acquired are not registered in the registries kept by the FMC, and that, therefore, no public offering of these securities may be made in Chile. 3. Public Information Obligations. Those who make the offerings of exempted securities must indicate in the communication used to offer the securities, that the offering deals with securities not registered in the registries kept by the FMC, and that therefore (i) no public offering of such securities may be made in Chile, and (ii) in case the issuer of the securities is not registered in such registers, that such issuer will not be subject to the FMC’s supervision nor to the continuous information obligations required of registered issuers. 4. Information Obligations to the […]

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  • 13 January, 2021

    Legal Alert: Law about Energy Efficiency

    January 13, 2021 | By Felipe Bahamondez y Pablo González. On January 7, 2021, the Joint Commission of the National Congress approved the Draft Law about Energy Efficiency, which will soon become law, and which will enter into force once it is published in the Official Gazette. Likewise, it is noted that the terms of entry into force of these regulations vary according to the subject matter regulated and depend on the regulations to be issued for such purpose. The following is a brief description of the main issues: 1. National Energy Efficiency Plan This Plan will be issued every 5 years and will include subjects such as residential energy efficiency; minimum standards and labelling of appliances; energy efficiency in building and transport; energy efficiency and smart cities; energy efficiency in the productive sectors and education and training in energy efficiency, establishing short and medium term actions and goals. The first Plan must be submitted for approval by the Council of Ministers for Sustainability within 18 months of the publication of the law. 2. Obligation for companies to report on their energy consumption and energy intensity Quadrennial criteria will be established to determine the companies that will have to report this information to the Ministry of Energy. Without prejudice to the above, all those companies that have had during the previous calendar year a total energy consumption for final use equal to or higher than 50 tera-calories shall comply with the report. The latter will be called CCGE, by its acronym in Spanish (in English this means”Consumers with Energy Management Capacity”) and a list of them will be established annually in a resolution of the Ministry of Energy. Small companies are excluded. Additionally, the CCGE must implement one or more Energy Management Systems (“SGE” by its acronym in Spanish), covering at least 80% of its total energy consumption, which it must maintain in force while it is considered a CCGE and for one year after it loses such quality. These SGE must have at least an internal energy policy; objective, goals, action plans and energy performance indicators; an energy manager; and, operational control, measurement and verification. The SGE will be controlled by audits that must be contracted every 3 years by the CCGE. The audit companies must be approved by the Electricity and Fuel Superintendence. Finally, the CCGE will have to send annually a report of its energy consumption for final use and information about the opportunities and actions of energy efficiency carried out and projected. The above, without prejudice to other complementary provisions in this matter. 3. About the energy qualification of buildings The houses, public buildings, commercial buildings and offices must have it in order to obtain the final or definitive reception by the Direction of Municipal Works. The Director of Works will record in the building permit that the project is subject to this obligation. There will also be an energy prequalification, which will fall on the corresponding architectural project and which will be of a transitory nature, in those cases in which the qualification is carried out for a purpose other than requesting final or definitive […]

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  • 5 November, 2020

    Regulatory Alert: National Economic Prosecutor’s Office publishes market study on public purchases

    November 5, 2020 | By Felipe Bahamondez, Sofía O´Ryan y Macarena Alliende. The chilean antitrust authority, the National Economic Prosecutor’s Office (Fiscalía Nacional Económica or FNE) published the Final Report of a Market Study on Public Purchases, in which it analyzes the conditions of competition in purchases made through the public purchases mechanism, ChileCompra (regulated by Law No. 19,886). In the report the FNE stressed the need of a structural reform in the market, and made a series of recommendations, which were sent on Wednesday, November 4, to the Ministry of Finance. Regarding its fundamental findings, the FNE identified a deficiency in the planning and budget in the annual purchase of public bodies, which is why it recommended granting regulatory powers to ChileCompra and expanding those of the Public Procurement Tribunal. Additionally, the FNE proposed to advance in the digitization, inspection faculties and the modification of existing sanctions in the purchasing process. Regarding the operation and competitive performance of ChileCompra, the study focused on analyzing the three main mechanisms for selecting State providers: Public procurement: the Prosecutor’s Office highlighted the low participation of bidders in the tenders due to the lack of adequate planning, and that 20% of the bidding specifications would contain limitations to competition. To improve the bidding processes, the FNE proposed to carefully analyze the needs within the public sector and the delimitation of markets, standardize administrative aspects, and increase the times and sizes of contracts, to maximize the number of participants. Framework agreements: the FNE identified an absence of competition for-the-market and of internal rules to assign suppliers. To improve this mechanism, the FNE suggests ensuring competition for-the-market together with having supplier assignment rules based on competitive variables, in addition to improving the delimitation of markets. Direct treatment: the study found that the regulatory standards were not met to justify the use of this mechanism in most of the cases, and thus recommended to increase the control and review the design and existence of the causes that enable its use. Additionally, the FNE identified potential administrative savings if there were optimal contracting rules, and possible incentives to participate in procurement processes, if administration (payment, ttracking and monitoring) was improved. As a result of the recommendations, the FNE estimates that the State could save between USD 290 million to 855 million per year, while increasing the competition, efficiency and transparency of the purchasing process. Contacts For more information, please contact: Felipe Bahamondez Socio fbahamondez@dlapiper.cl Sofía O´Ryan Counsel soryan@dlapiper.cl * 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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  • 30 July, 2020

    Legal Alert Covid-19: New Law Facilitates Access to Medicines during Pandemics

    September 23, 2020 / By Tomás Muñoz On September 22th, 2020, Act N° 21.267 was officially published. The purpose of the Act is to facilitate access to medicine by extending the validity of medical prescriptions that were given before or during a pandemic officially decreed by the Chilean Government. In particular, this is achieved by extending the prescription validity, which correspond normally to 6 months since the physician has granted it. As so, the Act has established the following: All authorized establishments must permit access to medicines upon the presentation of a valid prescription´s copy, regardless of its physical or digital support. Prescriptions granted 6 month before a pandemic decree by the Government and those prescribed during it, will be considered valid during the pandemic and 6 months after. Regarding any other mandatory norms that authorized establishment must abide, they will still be mandatory regardless of an official pandemic decree. Misuse of prescriptions will be sanctioned according to the Sanitary Code, the Criminal Code and Lay N° 20.000, that sanctions drug trafficking and consumption, if applicable. The Sanitary Code is modified in order to eliminate the mandatory use of an Advanced Electronic Signature to grant a prescription, being replaced with the norms of a decree. Though the Act does not indicate which specific decree, the legislative discussion demonstrates that it was intended to refer to the Pharmacies Regulation, Decree N° 466. En relación a este tema, revise la alerta enviada el 8 de mayo sobre el Decreto que introduce el comercio electrónico de medicamentos. In relation with this matter, please review the legal alert: Ministry of Health introduces e-commerce in medicines. Contacts For more information, please contact: Tomás Muñoz Asociado tmunoz@dlapiper.cl * 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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  • 13 July, 2020

    Legal Alert: Keys tu understanding the application of VAT/GST to digital services in Chile

    July 9, 2020 / By Rodrigo Álvarez, Germán Vargas y Gonzalo Zegers Law Nº 21.210, which Modernized our Tax Legislation, was published in the Official Gazette on February 24th, 2020. This law strengthened the process of technological and digital transformation of the Chilean Tax Authority (hereafter “Servicio de Impuestos Internos” or “SII”). This process is aimed at providing tools that enable the SII to exercise the powers and faculties established by law, especially since the aforementioned Law levied some digital services with VAT. This regulation came into full force on June 1st, 2020. As we mentioned, not all digital services are subject to VAT, some will be subject to Withholding Tax (“WHT”) and exempt from VAT and vice-versa. These are the main questions surrounding the new tax: What digital services are subject to VAT? The following remunerated services rendered in Chile by non-domiciled, non-resident providers, are subject to VAT: The intermediation of services rendered in Chile, of whatever nature, or of sales made in Chile or abroad, if the latter results in an import. The supply or delivery of digital entertainment content, such as videos, music, games or other analogue content, through downloading, streaming or other technologies, texts, magazines, newspapers and books, including for these purposes. The provision of software, storage, computing platforms or digital infrastructure. This category features: Software as a Service (“SaaS”): Rendered mainly to the end user. These services are provided through applications that run on the provider’s cloud infrastructure, which the user can access through various devices such as a web browser or cell phone. Platform as a Service (“PaaS”): Aimed mainly to app developers, who are given the tools (through a platform or cloud infrastructure) to build, compile and run their programs. Infrastructure as a Service (“IaaS”): Similar to PaaS but with fewer resources offered, allows the client to rent separate service components (mainly servers, storage, networking and data centers). Users will be responsible for handling other resources such as runtime, middleware and O/S. 4. Advertising, regardless of the medium or means through which it is delivered, materialized or executed. According to the VAT Law (“VATL”), VAT applies when services are rendered or used in Chile, regardless of whether the payment is made in Chile or abroad. Thus, it is understood that a service is rendered in Chile when the activity that generates the service is developed in Chile, regardless of the place where it is used. Whereas, for the services used in Chile, the VATL establishes a special rule, by which it presumes that a service is used in Chile, when at least two of the following situations concur: i. That the IP address of the user’s device or other geolocation mechanism indicates that they are located in Chile; ii. That the card, bank account or other means of payment used for payment of the service, are issued or registered in Chile; iii. That the billing address of the user or the place of issuance of invoices is located in Chile; or, iv. That the subscriber identity module (SIM) card of the mobile telephone used to receive the service has Chile as its country code. Therefore, if […]

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