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Amenaza de demanda de aseguradoras en base a TLC enseña que una nueva Constitución debe recuperar la soberanía

“No solo es el TPP-11, son todos los Tratados de Libre Comercio los que impiden que cambiemos y avancemos hacia un nuevo modelo de desarrollo más justo”.

Que es inconstitucional porque vulnera el derecho de propiedad, que afectará la certeza jurídica del país y que transgrede el Tratado de Libre Comercio con Estados Unidos. Básicamente, las compañías de seguros sostienen que el retiro de rentas vitalicias, incluído en la recién promulgada ley del retiro de fondos de pensiones, es una expropiación.

Las aseguradoras, principalmente las estadounidenses como Metlife, Ohio y Principal, ya están puliendo sus estrategias legales para contener el retiro de rentas y ser indemnizadas por el Estado de Chile, pretenden cumplir estos objetivos, ya sea acudiendo al Tribunal Constitucional o a arbitrajes internacionales.

El argumento para ir al TC es que la ley transgredería “el derecho de propiedad con afectación del patrimonio sin compensación, la intangibilidad de contratos entre privados y la certeza jurídica».

También señalan que existiría una vulneración al Tratado de Libre Comercio con Estados Unidos vigente desde 2004, por lo que podrían acudir a Sistemas de arbitrajes internacionales de solución de controversias Inversor-Estado o al Centro Internacional de Arreglo de Diferencias Relativas a Inversiones, CIADI.

¿Qué dice el TLC entre Chile y Estados Unidos que permitiría esta demanda contra el Estado? Estos requerimientos estarían basados en dos artículos del tratado:

– El Artículo 10.9, sobre la expropiación e indemnización, sostiene que “ninguna parte expropiará ni nacionalizará una inversión cubierta, sea directa o indirectamente”, salvo que sea “(a) por causa de utilidad pública; (b) de una manera no discriminatoria; (c) mediante el pago pronto, adecuado y efectivo de la indemnización (… ); y (d) con apego al principio de debido proceso”, estableciendo mecanismo y procedimiento para las compensaciones.

– El Artículo 10.4 establece que “cada parte otorgará a las inversiones cubiertas trato acorde con el derecho internacional consuetudinario, incluido el trato justo y equitativo, así como protección y seguridad plenas”.

No obstante, el Tratado de Libre Comercio con Estados Unidos no es el único acuerdo vigente que contiene este tipo de contenidos, todos los TLCs de última generación tienen capítulos, prácticamente calcados, sobre protección a las inversiones.

Desde la Plataforma ciudadana Chile mejor sin TLC explican que la amenaza de las aseguradoras estadounidenses es un ejemplo de cómo las empresas pueden coartar la soberanía nacional basándose en las reglas impuestas por los Tratados de Libre Comercio.

Esta amenaza nos pone por delante las consecuencias reales de este tipo de tratados que protegen contra  viento y marea las ganancias exorbitantes de las transnacionales. No les importa la pandemia, se saltan olímpicamente los tribunales chilenos y desconocen nuestra legalidad”, sentencia Lucía Sepúlveda, vocera de la plataforma Chile mejor sin TLC.

Esta agrupación ha destacado por su lucha en contra del TPP-11, pero clarifican que los riesgos de pérdida de soberanía no sólo están presentes en este acuerdo multilateral, sino en todos los Tratados de Libre Comercio de última generación firmados, ratificados o en negociación por parte de Chile.

Esteban Silva miembro de Chile Mejor sin TLC y de la Fundación Constituyente XXI, sostiene que tal como éste firmado con Estados Unidos, todos los Tratados de libre comercio favorecen a las grandes empresas transnacionales y que “no sólo es el TPP-11, son todos los TLCs como éste los que impiden y son un candado neoliberal para que cambiemos y vayamos hacia un nuevo modelo de desarrollo más justo y de soberanía económica para las y los trabajadores de Chile”. Silva también agrega: “por eso una nueva Constitución nacida de la soberanía popular sin trabas debe revisar los nefastos TLCs que reproducen el modelo que impide la soberanía de Chile”.

Igualmente Lucía Sepúlveda menciona que con esta amenaza de demanda las empresas de Seguros de Vidas “están enseñándonos que una nueva Constitución debe permitirnos recuperar nuestra soberanía y denunciar todo Tratado que incorpore estas cláusulas e impedir que, en adelante,  Chile quede amarrado a ellas, solo así podremos construir otro tipo de sociedad y derrotar el modelo neoliberal que está anclado precisamente por esta clase de tratados”, concluye Sepúlveda.

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