In Chile there is no comprehensive legislation which deals specifically with asset recovery. However, victims of fraud may use the general tools that are available under Chilean law to victims of crime that seek restoration. Criminal cases cannot be subject to arbitration, although the civil liability derived from the crime may be submitted to the competence of an arbitration tribunal. Naturally, arbitration means faster proceedings than in the ordinary courts, but higher costs.
Historically, the Santiago Court of Appeals has held that parties' only recourse against an international arbitral award is the set-aside procedure. However, the Supreme Court recently established that parties' intentions as expressed in an arbitration clause cannot be dismissed when analysing the available forms of recourse against an arbitration award. This decision emphasises the contractual nature of arbitration and the importance of the parties' intentions when determining the effects of an arbitration agreement.
Active cases of COVID-19 are slowly beginning to decrease in Chile. In some areas, the authorities are gradually easing lockdown and movement restrictions. In this slow transition out of pandemic mode, companies are beginning to resume operations. As such, the Ministry of Employment has created a Step-by-Step Employment Plan which highlights the safety and prevention measures that employers and employees must take in the workplace.
The 24th Civil Court of Santiago recently found that 16 inter-company unions had been created with the sole purpose of granting union privileges to their leaders and ordered the unions to be removed from the Labour Authority's register. The ruling is of great relevance as it is the first time that a civil court has dissolved a union for illicit activity contrary to the spirit of the law that regulates labour organisations.
The Supreme Court recently decided a variation on limitation periods for employment actions – the so-called 'content doctrine' – which stresses the nature of relief sought by plaintiffs. However, the doctrine is problematic, as it implicitly extends limitation periods by calculating them from the date of termination of employment and not from the date on which any wrongdoing was committed.
The Ninth Civil Court of Santiago recently held that three state agencies had been negligent in protecting the occupational safety of 31 trapped miners and ordered the Treasury to pay approximately €101,523 to each miner. In its defence, the state argued that the significant amount spent in rescuing and compensating the miners (approximately €8.63 million) had protected their moral suffering.
Following a recent opinion rendered by the Labour Board, companies may continue to extend to non-union employees benefits which they received before they were added to a collective bargaining agreement, because such benefits are not an attribute of the collective bargaining agreement for non-union employees. This new position impedes union interference in the granting of benefits to employees who are not involved in union activity.
The Supreme Court recently issued the final decision in a landmark securities case on damages in connection with bonds issued by a listed company in the retail industry. The ruling does not prevent the possibility of obtaining compensation by bondholders that have suffered losses in the securities market, but it does emphasise that in order to be compensable, damages must be certain according to general requirements of civil law.
The Sub-secretariat of Public Health recently developed the Protocol for the Detection of Suspected Cases of COVID-19 in Ports (Phase 4). The protocol aims to define actions for vessels requesting entry into the country or carrying out cabotage, establish guidelines for the timely detection of COVID-19 in ports and determine the action to be taken in the face of suspected COVID-19 cases detected at ports.
Customs recently issued three complementary resolutions to its cargo delivery procedures. However, grey areas remain regarding their interpretation and practical implementation, particularly in connection with the potential delivery of cargo without surrender of the original bill of lading. In this respect, ocean carriers should proceed carefully and liaise with their Chilean port agents to define interim protocols.
In an unprecedented action, the owners of a vessel attempted to undermine arrest measures by bringing a constitutional remedy before the Concepción Court of Appeal. The decision helps to protect the institution and procedure relating to vessel arrests and implies more certainty in terms of the outcome of such proceedings.
In the context of the current COVID-19 crisis, Customs recently issued Resolution 1179/20, which implements transitory modes for the treatment of various customs procedures and the ways of presenting documents associated therewith to facilitate foreign trade transactions. Among these transitory measures, Customs has authorised electronic exchanges and amendments to bills of lading. However, customs agents must now obtain the original bill of lading from its issuer and keep it in its importation file.
The Merchant Navy Law, which includes a cabotage reservation system, implies that only Chilean vessels are permitted to provide maritime or fluvial transport services (of cargo or passengers) within Chile or its exclusive economic zone. However, Law 21,138 recently came into force, allowing passenger cabotage on foreign cruise vessels provided that certain conditions are met.