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.
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 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 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 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.
Law 21,132 recently came into force and introduced new definitions of criminal offences in connection with marine biological resources, including the exploitation of banned natural resources or products extracted from the seabed and overfishing. In the case of spills that cause damage to hydro-biological resources, shipowners operating in Chile are now subject to greater contingency – not only in terms of administrative penalties, but also in connection with criminal liability.
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.
The relationship between surface landowners and mining concession holders in Chile is governed by law, which grants preferential rights to the latter. Mining concession holders may exercise their rights to search for minerals and impose mining easements on landowners. However, in the case of state property, such matters are regulated by a ministerial order.
The owners of a Chilean tugboat constituted a limitation fund to respond to damages suffered by different parties in connection with the sinking of a towed vessel following a salvage and towage operation. The plaintiffs opposed the fund's constitution, arguing that 'personal acts' committed by the tug's owners exempted them from the right to limit liability. The Supreme Court recently rejected the opposition; its decision should provide future certainty regarding the interpretation and scope of shipowners' personal acts.
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 Competition Agency (FNE) recently gave a clear sign to the market by blocking a concentration transaction for the first time since the new merger control system entered into force. The FNE dismissed the efficiencies and mitigation measures raised by the parties, as the risks to competition were too great according to its guidelines.
The government recently filed a compensation claim for environmental damage against mining company Pampa Camarones. The claim was based on the fact that Pampa Camarones' operations had violated a series of measures that the regional evaluation commission had stipulated to protect a nearby archaeological site. As a result, over 15 hectares of the site were destroyed without the required measures being undertaken to protect its archaeological value.
A taxpayer recently requested a ruling from the Tax Department on the treatment of gains from cryptocurrency transactions for income and value added tax purposes, as cryptocurrencies are not specifically regulated in Chile or recognised as legal tender or foreign currency. The department's analysis reflected the broad definition of 'income' in the Income Tax Act and the fact that there is no specific exemption or favourable treatment given to these specific gains.
When structuring their businesses, companies must keep in mind that employment liability cannot be avoided by hiring personnel through their company affiliates or related entities. Fines may apply if the existence of multiple companies under a common employment management is found to be a scheme to avoid compliance with employment rights (eg, allocating profits in one company but hiring employees in another).
Until 1979, the Mining Code 1932 defined the legal regime for lithium. During that period, lithium was treated like any other mineral and could be privately owned without special restrictions. This situation has changed with the enactment of a number of laws. Most recently, the Ministry of Mining's Supreme Decree 64 established special operation contract requirements and conditions for the exploration, exploitation and processing of lithium deposits in the Atacama region.
Evidence used in employment cases must be obtained in a lawful manner and in accordance with fundamental rights, such as due process. However, a recent Supreme Court decision has fostered debate about the protection of fundamental rights within the context of an employment relationship. The court found that a conversation recorded without consent by a concealed voice recorder at a meeting could be considered valid evidence and did not violate the fundamental rights of the individuals recorded.
In 2015 the National Institute of Industrial Property (INAPI) was designated as an international searching authority (ISA) and international preliminary examining authority (IPEA) under the Patent Cooperation Treaty. From January 1 2018, the INAPI can issue international search and preliminary examination reports for Chilean applicants and applicants from Latin American and Caribbean countries that have designated the INAPI as their ISA and IPEA.