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Respuesta a minuta de DIRECON: REPAROS SOBRE DEMANDAS AL ESTADO POR INVERSIONISTAS EXTRANJEROS Y PROTECCIÓN DE SEMILLAS EN EL MARCO DEL CPTPP

Minuta Direcon

Comentarios Chile Mejor Sin TLC

1 Se ha señalado que el Capítulo de Inversiones facilitaría a los inversionistas demandar al Estado a través del sistema de solución de controversias, lo anterior conllevaría a que el Estado no implemente nuevas regulaciones (en material laboral o previsional, por ejemplo) con el objeto de evitar demandas. Hemos señalado que la mayoría de los capítulos permite demandas contra Chile por otros Estados y todos ellos permiten demandas por parte de inversionistas. No es sólo el capítulo de inversiones.

 

Y Chile sí podría ser demandado por regulaciones laborales, como indicamos en minuta aparte

2 Al respecto cabe señalar que el sistema de solución de controversias es el mismo estándar al negociado por más de 20 años en los TLCs… Los estándares son similares, pero no son los mismos y sobre todo no tienen los mismos impactos.

Los impactos de los sistemas de resolución de disputas deben evaluarse también por el tipo de disposiciones que deben cumplirse y cuyo incumplimiento llevaría a la presentación de demandas. Hay disposiciones del CPTPP que son significativamente peores que las de otros tratados. Sólo como ejemplo, el Artículo 26.2 obliga al país a consultar todo proyecto de ley, regulación o política pública con gobiernos y empresas extranjeras, y los Artículos 4, 6.1, 6.2 y 6.3 del Capítulo 17  impiden la llamada “asistencia no comercial” a las empresas del Estado. Es decir, con el CPTPP, Chile se vería obligado a cumplir con disposición claramente peores que las de otros TLCs para evitar las demandas

3 [El Capítulo de Inversiones] incluso contiene mayores flexibilidades para implementar políticas públicas de acuerdo a nuestros intereses nacionales.

A modo de ejemplo, destaca la norma contemplada en el artículo 9.16 que indica que nada impide a los Estados adoptar, mantener o aplicar cualquier medida que consideren apropiada para asegurar que las inversiones se desarrollen acorde con los objetivos regulatorios en el ámbito medio ambiental, de la salud pública u otros. Así, el Capítulo reafirma expresamente el derecho de los Estados para regular sobre sus objetivos legítimos de política pública, tales como la protección de la salud, seguridad, el medio ambiente, moral pública, protección social y protección al consumidor, o la protección de la diversidad cultural.

La DIRECON omite aquí un contenido clave del Art. 9.16, el que dice  en realidad

 

“Nada de lo dispuesto en este Capítulo se interpretará en el sentido de impedir a una Parte adoptar, mantener o hacer cumplir cualquier medida, que sea compatible con este Capítulo, que considere apropiada para…”, (subrayado nuestro).

 

Es decir, los países tienen “libertad” sólo en la medida que cumplan con las exigencias del tratado, sin importar cuán inaceptables ellas sean. La flexibilidad no existe.

 

Hacemos notar que este tipo de disposición se repite numerosas veces a través del tratado. Primero se dice que hay libertad para tomar decisiones y luego se agrega que sólo en la medida que sea compatible con las exigencias del tratado. Es lo que hacen, entre otros, las siguientes disposiciones:  Art.2.24.2.b, Art.8.6.3, Art.8.6.9.c, numeral 4 del Anexo 8.E, numeral 4 del Anexo 8-F, Art, 9.8.5, Art. 9.10.3.d.i, Art.9.16, Art. 11.6.2, Art.11.11.4, Art.13.13.4, Art.13.19.3, Art.14.3.2, Art.14.11.3, Art.14.17.3b, Art.15.2.7, Art.15.8.5, Art.15.10, Art.17.3, Art.17.4.1.a, Art.17.4.2.a, Art.17.13.2.c, Art.18.3.1, Art.18.3.2, Art.18.8.3.a, Nota al pie 10 del Capítulo 18, Art.19.5.2, Nota al pie 6 del Capítulo 19, Art.29.3.3.a, Art.29.3.3.b, Art.29.3.3.f.

4 El Capítulo también contiene anexos donde Chile protege el derecho a regular del Estado para proteger sectores tan sensibles como la educación, cultura, servicios sociales y medioambiente, derechos indígenas, derechos de minorías. Por ejemplo, el Anexo 9-B sobre Expropiación, establece claramente en qué casos las regulaciones del Estado nunca constituirán una expropiación indirecta. No hemos podido encontrar los contenidos a los que se refiere la Direcon. En primer lugar, el párrafo 3b) del Anexo 9-B no menciona ni a los pueblos indígenas ni a las minorías. En segundo lugar, en ninguna parte dice que las regulaciones del Estado “nunca” constituirán una expropiación indirecta. La expresión utilizada en el Anexo es “salvo casos excepcionales”, lo que indica que sí pueden ser consideradas expropiación indirecta bajo determinadas circunstancias. Luego el texto agrega que para no ser consideradas expropiatorias, las regulaciones deben ser “no discriminatorias”, atributo sujeto a interpretaciones diversas y por lo tanto fácilmente litigable.
5 El Capítulo de Inversiones del CPTPP no garantiza ni asegura a los inversionistas extranjeros la obtención de ganancias o utilidades, ni tampoco obliga al Estado a indemnizar al inversionista por no haber obtenido las ganancias que esperaba. Nuevamente, la Direcon omite aquí contenidos claves. El párrafo que aquí analizamos es correcto pero gravemente incompleto. Aunque el Estado no garantiza ganancias, las empresas sí pueden demandar por lo que ellos consideren pérdidas o “expropiación indirecta”. Por otro lado, el Estado no está “obligado” a indemnizar, pero sí puede ser demandado para que indemnice.
6 Justamente para evitar este tipo de interpretaciones históricamente erradas, y para dejar claro y sin lugar a dudas que el Estado no asegura al inversor obtención de utilidades, por primera vez en la historia de los Capítulos de Inversiones de un Tratado de Libre Comercio, se incluyeron aclaraciones explícitas sobre el alcance de las expectativas del inversionista: No hemos indicado que el problema sea que el Estado garantice utilidades, sino que las empresas pueden demandar si no obtienen lo que esperaban
7 El CPTPP asegura que el Estado puede regular, incluso si como resultado de la introducción de nuevas regulaciones se perjudica a una inversión.

“Para mayor certeza, el simple hecho de que una Parte adopte u omita adoptar una acción que pudiera ser incompatible con las expectativas del inversionista, no constituye una violación de este Artículo, incluso si como resultado de ello hay una pérdida o daño en la inversión cubierta.”

Aquí la Direcon parece no sopesar las implicancias de cada palabra en un tratado como el CPTPP. Lo importante en este párrafo es la inclusión de “el simple hecho”. Es decir, un inversionista puede demandar por incumplimiento de expectativas, pero debe añadir elementos adicionales para reclamar compensación
8 (ii) Expropiación indirecta (pérdida de la inversión no derivada de un acto expropiatorio propiamente tal):

 

En el Anexo 9-B sobre Expropiación, por primera vez se explica qué se entiende por “expectativas inequívocas y razonables”. Se establece expresamente que estas expectativas requieren “certezas obligatorias por escrito por parte del Estado”, es decir, no basta el CPTPP, sino que además un contrato vinculante entre el Estado y el inversionista. Sin embargo, el hecho de que exista un contrato no asegura al inversionista la obtención de utilidades. En ningún caso en un contrato el Estado se puede comprometer con el inversionista a un retorno de utilidades.

Una vez más, la Direcon parece no haber prestado suficiente atención a palabras claves. El anexo 9-B NO DICE que se REQUIERAN  certezas obligatorias por escrito por parte del Estado para que se considere que una empresa tiene “expectativas inequívocas y razonables”.

Lo que realmente dice el Anexo 9-B es lo siguiente:

 Para mayor certeza, el que un inversionista tenga expectativas inequívocas y razonables de la inversión depende, en la medida en que sea relevante, de factores tales como si el gobierno proporcionó al inversionista certezas obligatorias por escrito ….

 

Es decir, las certezas obligatorias son SÓLO UNA DE DIVERSAS POSIBLES RAZONES para aducir expectativas inequívocas y razonables de ganancias

9 Podemos asegurar que el CPTPP Chile protege el derecho a regular del Estado de Chile Por las razones expuestas especialmente en la tercera fila de esta columna, aseveramos que esta es una conclusión falsa.
10 y que éste nunca ha garantizado a través de sus Capítulos de Inversiones la obtención de utilidades a los

inversionistas.

Nuestra aseveración no es que el Estado garantice las ganancias, sino que las empresas pueden demandar por la no realización de ganancias esperadas
11 En las negociaciones sobre inversiones que Chile lleve a cabo, se seguirán incluyendo, de forma consistente, disposiciones que aseguren la facultad regulatoria del Estado y limiten los espacios para la presentación de demandas en su contra por parte de inversionistas extranjeros, de tal manera de que en ningún caso la soberanía del Estado quede limitada. Resulta fundamental, asegurar que la implementación de políticas públicas, como, por ejemplo, en el ámbito del acceso a la salud, el régimen de pensiones o la protección del medio ambiente, siempre se encontrarán a salvo de la acción de inversionistas extranjeros. Lo indicado en las filas segunda y tercera de esta columna demuestra que Chile no protege sino que renuncia significativamente a su capacidad regulatoria y su soberanía queda seriamente limitada y en entredicho a través del CPTPP.

 

Si la Direcon promete consistencia para negociaciones futuras, entonces tenemos que esperar nuevas renuncias a nuestra soberanía.

12 El Ministerio, asimismo, evaluará la posibilidad de incluir en la Declaración que acompaña el depósito del instrumento de ratificación del CPTPP, una referencia explícita a que el Capítulo de Inversiones del CPTPP NO obliga al Estado de Chile a resguardar su derecho a regular y a garantizar al inversionista extranjero que obtendrá utilidades por sus inversiones en el territorio chileno Esperamos sinceramente que la DIRECON aquí haya cometido un error y que su intención haya sido decir que el Estado de Chile desea resguardar su derecho a regular.

 

Sin embargo, aquí se plantea un punto de suma importancia que la Direcon debiera aclarar de manera fundamentada, documentada y precisa. De acuerdo a todos los antecedentes que la Plataforma conoce, Chile ya no puede incorporar nuevas interpretaciones o excepciones al CPTPP, sino que debe ratificarlo o rechazarlo en su plenitud y sin cambios. Si el gobierno asevera que  puede incluir notas interpretativas al momento de depositar la ratificación, debiera indicar de manera clara y precisa qué disposiciones del CPTPP le permiten hacerlo.

 

Revisa aquí el Documento en PDF 

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  • … ¿PORQUÉ TENEMOS QUE QUEDARNOS DE BRAZOS CRUZADOS Y DEJAR QUE GOBIERNOS CORRUPTOS Y COLUDIDOS CON GRUPOS ECONÓMICOS RESUELVAN ESTE TEMA DEL TPP-11… O LOS TEMAS DE LAS ISAPRES O BIEN EL TEMA DE LAS AFP.
    . .. ¡NO CREEN QUE ESTOS TEMAS DEBEN SER RESUELTOS POR LA SOCIEDAD CHILENA?..
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    Atte.
    Sociedad Civil de Chile.

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