by Juan Manuel González | Oct 27, 2023 | Noticias-en
The Ministry of Labor, Employment and Social Security, through Ministerial Resolution No. 1545/2023, has determined to approve prevention and contingency measures to mitigate the effects of air pollution in work spaces.
The approval of these measures arises from the need to protect workers during the environmental emergency caused by the growing emergence of heat sources and air quality pollution.
Below we detail the measures implemented:
– General measures to limit exposure to air pollution
– Workers must use masks (FFP2, N95 or KN95 masks) while carrying out their work activities outdoors, to protect themselves from suspended particles.
– Reduce the use of transportation with combustion engines, fuels and/or substances that may contribute to increasing environmental pollution.
– Hydrate minimally with 1.5 liters of water per day.
– Avoid the use of contact lenses.
– Keep windows and doors closed in the workplace, during the performance of work activities.
– Workers who are likely to be mainly affected by the effects of environmental pollution (the elderly, pregnant women, among others) must avoid exposure and/or carry out outdoor activities. If you have health complications due to exposure to air quality, you should immediately go to a health center.
– Work establishments that are located near the areas with the greatest contamination must place wet towels in door and window slots.
– Avoid contact of people and/or pets with the ashes.
– Employers are obliged to inform and train their workers on contingency and reaction measures in the event of air pollution emergencies.
Measures to reduce emissions from burning materials, biomass and fuels
Agricultural burning, tire burning, waste burning, pyrotechnic burning, as well as avoiding the burning of firewood, charcoal, lighting candles or incense and other materials that contribute to air pollution are prohibited.
Actions to reduce environmental pollution
– The transport of construction materials in open vehicles without a tarp is prohibited.
– Reduce sweeping and grass cutting activities in areas that have medians, gardens and sports fields.
– Reduce the movement of particle-generating materials (clay, sand, gravel, among others), within establishments with storage of construction materials with more than fifty (50) tons in the open.
– Reduce activities that involve the use of explosives.
– Reduce the execution of activities that include construction, demolition and/or earthworks. Those activities indicated above that have mitigation measures for fugitive dust emissions are exempt.
– Avoid patching, painting, paving, works and activities that obstruct or hinder vehicular flow.
– Reduce the activities carried out in fixed or mobile industrial concrete plants that do not have equipment to control chemical emissions.
Restrictions of Industry and Service Sectors
Industries that have manufacturing processes that emit ozone precursors and that do not have emissions control equipment are required to take actions to reduce their emissions between 30% and 40%, starting from their baseline.
Service establishments and/or industries that, in the development of their activities, use products that contain volatile organic compounds for cleaning or degreasing and do not have emissions control, must reduce their activities by 30%.
The facilities of service providing companies, with the exception of health centers that do not have ozone precursor emissions control systems, must reduce the operation of their boilers by 30%.
The execution of activities related to mining, metallurgy, electricity and oil must reduce their atmospheric emissions under the controls of the supervisory agencies in charge of executing control in these areas, while the corresponding alerts are issued in the areas where their activities are carried out.
Pollution prevention and mitigation measures are mandatory for public institutions and private companies, and non-compliance may result in the application of financial fines or sanctions.
For more information contact:
Carla Arellano | Counselor Ferrere | carellano@ferrere.com
by Juan Manuel González | Oct 26, 2023 | Noticias-en
On June 22, 2023, the U.S. Supreme Court decided Yegiazaryan v. Smagin and reaffirmed the principle that foreign plaintiffs are not barred from bringing lawsuits under the Racketeer Influenced and Corrupt Organizations (RICO) Act 1 in the US to file a successful RICO claim. a foreign plaintiff must allege “domestic injury” arising from the RICO violation. When evaluating whether an injury arose within the U.S., the Supreme Court ruled in favor of a context-specific approach, which requires courts to examine all of the circumstances surrounding an injury to determine whether it arose or occurred within the U.S. In doing so, the Court rejected the residency test, which prevents a foreign plaintiff from bringing a RICO claim based solely on his or her foreign residency.
The Yegiazaryan decision paves the way for creditors of foreign awards to enforce foreign arbitration awards in U.S. courts against debtors who use fraudulent tactics to avoid paying the awards.
Factual Background
In 2014, Russia-based Vitaly Smagin obtained a multimillion-dollar foreign arbitration award against Ashot Yegiazaryan, a Russian national who fled to Beverly Hills in California to avoid prosecution in Russia, for allegedly misappropriating Smagin’s investments in a real joint company. real estate project in Moscow (London Prize).
Smagin subsequently filed an enforcement action against Yegiazaryan under the New York Convention in the United States District Court for the Central District of California to enforce the London Award. In response, the district court ordered the freezing of Yegiazaryan’s assets in California.
In 2015, Yegiazaryan had won an unrelated foreign arbitration award (the Kerimov Award) against Russian businessman Suleiman Kerimov, and subsequently attempted to conceal a $198 million settlement in satisfaction of the Kerimov Award from Smagin’s collection. In violation of the district court’s preliminary injunction, Yegiazaryan received the funds through the London office of an American law firm before eventually transferring the money to a bank account at CMB Monaco through a network of offshore companies. . Yegiazaryan also directed an inner circle of friends to file fraudulent lawsuits against him in foreign jurisdictions to obtain false judgments against the Kerimov Award settlement. Additionally, he created a complex system of shell companies through members of his family within the US to protect his domestic assets from Smagin’s coercive actions.
Based on this “pattern of extortion activity,” in 2020, Smagin filed a civil lawsuit against Yegiazaryan, seeking more than $130 million in damages and arguing that Yegiazaryan’s attempts to protect assets from collection and commit wire fraud and obstruction of justice constituted a violation of RICO. . 2 The district court dismissed the case based on the Supreme Court’s decision in RJR Nabisco, Inc. v. European Community, ruling that Smagin failed to prove that he had suffered “internal injury.” On appeal, the Ninth Circuit reversed, after adopting a different interpretation of the “internal harm” test.
Before Yegiazaryan, there was a circuit split over a “domestic injury” test involving RICO claims.
In 2016, the Supreme Court held in RJR Nabisco, Inc. v. European Community that foreign plaintiffs bringing RICO claims must allege and prove an “internal damage”. 3 In other words, the Court held that the statute only permitted claims for domestic RICO-related damages, not for damages suffered extraterritorially.
The Court, however, did not define “internal harm,” which subsequently resulted in a circuit split. The Seventh Circuit adopted a clear residence-based test, establishing that the place of injury is the plaintiff’s residence. The Second, Third, and Ninth Circuits adopted a context-specific approach to determining the presence of internal harm, which “considers all the specific facts of the case related to where the harm ‘arises’, not just where it is ‘felt’” . 4
In the California proceedings involving Smagin and Yegiazaryan, the California district court initially dismissed Smagin’s RICO claim after applying the residency-based test and found that Smagin failed to sufficiently allege domestic injury because, among other things , his Russian citizenship and residence led him to suffer the detriment (i.e., his inability to collect the London Prize) in Russia and not in the US.
On the other hand, the Ninth Circuit rejected the residency-based test in favor of the context-specific approach, which requires courts to evaluate the circumstances as a whole to determine whether harm arose or occurred domestically within the U.S. Specifically, the Ninth Circuit concluded that the location of injury was California because Yegiazaryan’s alleged racketeering actions to prevent Smagin’s collection of a California judgment to enforce the London Award occurred largely within California. As such, the Ninth Circuit determined that Smagin sufficiently alleged that internal harm occurred.
The Supreme Court decision took the context-specific approach to determining “internal damage”
In Yegiazaryan , the Supreme Court resolved the circuit split and clarified the definition of “internal damage” regarding intangible property, including a ruling of a U.S. court to enforce a foreign arbitration award in a RICO lawsuit brought by a foreign plaintiff. The Court agreed with the Ninth Circuit and adopted the context-specific approach that examines the totality of the circumstances surrounding an injury to determine whether it arose or occurred domestically.
In doing so, the Court determined that the Russian plaintiff had sufficiently alleged RICO-related domestic injury by adequately alleging that racketeering activity that, for the most part, took place in California frustrated its efforts to collect a California judgment for enforcement. of a foreign arbitration award against a California resident.
The Court also rejected concerns about the fact-intensive nature of this approach, explaining that while it may be easier to implement as a clear rule under the residency-based test, it contradicted its 2016 RJR Nabisco decision by effectively prohibiting Foreign plaintiffs file RICO claims.
What are RICO claims and why are they important to foreigners?
RICO is an American federal statute that was enacted as part of the Organized Crime Control Act of 1970 to allow the prosecution of organized crime, particularly the mafia. Today, the application of RICO is much broader and has been used by prosecutors to criminally punish acts committed in support of organized crime.
The statute also creates a civil cause of action. According to RICO, “any harmed person” can recover based on a wide range of acts, defined as “extortion or illegal debt collection activity,” 5 such as drug trafficking, human trafficking, money laundering, money and identity fraud. Plaintiffs in civil RICO lawsuits can recover both tangible damages, such as property damage, and intangible injuries, such as financial losses.
RICO has served to incentivize reporting the activities of criminal organizations by allowing individuals to hold them liable for civil damages.
RICO, by its very nature, has an international impact. Many of the activities covered by the statute have a global reach because the conduct covered by “extortion activities” tends to involve cross-border activities. This is beneficial to non-US residents harmed by criminal organizations operating from the US, as non-US residents could potentially recover certain losses and damages from actors in the US under RICO.
Key Findings
The Supreme Court did not elaborate on other factors that may be relevant to the context-specific analysis or how to weigh the various factors. This decision, however, has a significant impact on the enforcement of foreign arbitration awards in the US:
Creditors of foreign awards now have an expanded path to collect foreign arbitration awards in the U.S. where the award debtor may have intentionally attempted to place assets beyond the reach of creditors through various fraudulent or deceptive activities.
While the Court reiterated that there must be domestic damages to recover under the RICO statute, it also noted that there is no evidence that Congress intended to exclude U.S. companies owned by persons living abroad from bringing a RICO suit. As the Court stated, “doing so runs the risk of generating international discord.”
For more information contact:
Jeffrey Lehman | Partner Miller & Chevalier | jlehtman@milchev.com
by Juan Manuel González | Oct 24, 2023 | Noticias-en
On October 12, 2023, the President of the Republic of Paraguay signed and promulgated Law 7190/2023 on Carbon Credits. The new regulations provide the country with a specific regulatory framework for the development of projects that generate carbon credits for their commercialization in international markets, whether mandatory or voluntary.
Among other provisions, the new law designates the Ministry of the Environment and Sustainable Development (MADES) as the enforcement authority and creates the national Carbon Credit Registry, which will seek to provide order and transparency to the local market and avoid double accounting of emissions reductions. . Likewise, the standard contemplates measures to safeguard compliance with Paraguay’s Nationally Determined Contributions (NDC), including the obligation to retain between 3 and 10% of the carbon credits generated by each project, and measures designed to promote knowledge transfer to Paraguayan professionals and technicians. In order to encourage national and foreign investment in local projects, the law grants certain legal protections to properties destined for projects under development, providing legal clarity to the ownership and transferability of carbon credits, and exonerating the Value Added Tax. (VAT) the transfer of these.
MADES, as the designated enforcement authority, is now tasked with regulating and implementing the specific procedures required in the new law and ensuring compliance therewith.
Paraguay, with its 16 million hectares of forests, with the accelerated increase in its forest plantations, and with its vast availability of clean and renewable hydroelectric energy, has enormous potential for the international carbon credit market, whose global value in In 2023 it is estimated at about 1.2 trillion dollars, an amount that is estimated could double in the next 5 years.
FERRERE advises local and foreign clients, including landowners, project developers, investors, specialized funds, and end buyers, in the most significant transactions in the carbon credit market in Paraguay.
For more information contact:
Carla Arellano | Counselor Ferrere | carellano@ferrere.com
by Juan Manuel González | Oct 23, 2023 | Noticias-en
Through Executive Decree No. 754 of May 31, 2023, President Guillermo Lasso reformed the Regulations to the Organic Code of the Environment (hereinafter, “RCODA”).
This reform is preceded by Sentence No. 22-18-IN/21 of September 8, 2021, in which the Constitutional Court: (i) Clarified that the environmental consultation and the prior consultation with indigenous communities are different consultations, and that Art. 184 of the CODA does not apply or replace the right to prior consultation of indigenous communities; (ii) Ordered that Art. 184 of the CODA must be interpreted according to the Constitution of the Republic, the jurisprudence of the Constitutional Court, and the Escazú Agreement;[1] (iii) Declared the unconstitutionality of Arts. 462 and 463 of the RCODA; and (iv) Ordered the President to adapt the RCODA to what was resolved. Subsequently, the aforementioned Court issued Ruling No. 1149-19-JP/21 of November 10, 2021, in which the right to environmental consultation was developed.
The main reforms carried out by Decree No. 754 are the following:
1. The citizen participation process is reformed. This will no longer be governed by the technical standard of the Environmental Authority but by that established in the RCODA, below. Furthermore, the majority opposition of those consulted is regulated, indicating that it is not binding. However, it is established that, if the environmental permit is granted despite majority opposition, it must be duly motivated.
2. All regulations in the RCODA regarding prior consultation with indigenous communities are repealed and Title III of Book III of the RCODA on the citizen participation process for environmental consultation is reformed:
2.1. It is established that the right to environmental consultation will consist of informing the community “about the content of the environmental technical instruments, the possible environmental impacts and risks that could arise from the execution of the projects, works or activities, as well as the relevance of the actions to be taken”, record and compile your criteria, opinions and observations, and thereby consult you about the granting of the corresponding environmental permit.
2.2. It is added that the rules on the citizen participation process for environmental consultation are mandatory and apply in the case of an environmental license, always, and in the case of environmental registration for activities in the hydrocarbon and mining sector.
23. It is established that the citizen participation process for environmental consultation must be carried out prior to the granting of environmental permits. Additionally, the following changes are added to the process:
2.3.1. The Ombudsman’s Office must be notified so that this entity can proceed to provide support to the community and monitor the process. Your participation is mandatory, however, your unjustified absence will not lead to the nullity of the process.
2.3.2. The operator of the project, work or activity must deliver to the competent Environmental Authority the technical environmental instruments that it requires, as well as all the communication materials or supplies for the didactic dissemination of such instruments (e.g. summaries, brochures, slides, etc. ). All deliverables must be translated, when applicable.
2.3.3. To carry out the process, citizen participation mechanisms will be used, including the following: (i) Information mechanisms (e.g. information assemblies, electronic pages, information videos, delivery of information documentation on environmental technical instruments, public information centers, workshops of environmental socialization; (ii) Call mechanisms (e.g. public call, personal invitations); and (iii) Consultation mechanisms (Consultation Assembly).
2.3.4. Special provisions are included to consider when the consultation is carried out in the territories of indigenous peoples: provisions related to their ancestral languages and their forms of organization and decision-making.
2.3.5. The operator of the project, work or activity will be the one who must finance the environmental consultation process, its call and the logistics. He must also provide all the facilities and provide all the resources necessary for its execution.
2.3.6. The process will be divided into two phases: (i) Information Phase and (ii) Consultative Phase. In the first, the delivery of information occurs. In the second, a dialogue takes place between the State and the community in order to present the opinions and observations of the community and consult regarding the issuance of the environmental permit.
3. The validity of all environmental permits that were issued before the reform is ratified. On the other hand, any project, work or activity registered in the SUIA until October 11, 2021 will follow the process prior to the reform. This reform will continue the processes initiated at a later date, even if they have received a technical ruling, as well as the projects, works and activities of the mining sector blocked in the SUIA by Sentence No. 1149-19-JP/21.
For more information contact:
Maria Rosa Fabara | Partner Bustamante Fabara | mrfabara@bustamantefabara.com
by Juan Manuel González | Oct 23, 2023 | Noticias-en
The case that we discuss on this occasion is related to a minimum services pact agreed between a company and its union organizations.
Indeed, based on the collective autonomy of the parties, they autonomously decided to enter into a minimum services agreement whose purpose is to maintain certain types of operations in the event of a possible stoppage due to a strike.
In the specific situation to which we allude, one of the unions contemplated in its statutes that its board of directors was made up of four leaders, however, at the time of reaching the minimum services agreement, only two of these remained in force. For this reason, the respective instrument was celebrated, with only the leaders who had the status of active workers on that date signing it.
Once the agreement was reached, the respective agreement was deposited with the Labor Inspection, which issued a resolution rejecting said management and not validating the document signed between the parties, because, in the opinion of the labor administrative authority, it did not satisfy its criteria and standards.
It is against said resolution of the Labor Inspection that the company filed a lawsuit in court, questioning the actions of said department for assuming powers that it does not have.
Therefore, the underlying discussion of this case is, What is the degree of interference that the Labor Directorate can have with respect to a minimum services agreement that has been achieved autonomously and freely between the employer and its union organizations?
The ruling expresses clearly and emphatically (case Rit I-93-2023 of the 1st Labor Court of Santiago) that “Article 360 of the Labor Code, regarding the agreement that union organizations can reach in relation to the matter, has contemplated that the only intervention of the Labor Directorate in the process is to be the depositary of the agreement. Unlike what is provided for in article 223 of the Labor Code, it has not provided powers with respect to this body to make observations to the instrument in the sub-lite case.”
It continues, “It is up to the state bodies to be subject, without exception and in all their actions, to the constitutional norm of article 7 and no other powers can be attributed than those contemplated in the fundamental text and the laws that have been issued in accordance to her. The defendant does not justify sufficiently under the normative assumption that active conduct is justified regarding the questioning of the legitimacy of the instrument that has been delivered to her for collection.”
This is a pronouncement of utmost importance since it clearly delimits the degree of intervention that the Labor Directorate can have regarding a minimum services agreement concluded between the employer and its unions, and restricts any possibility of objecting to it, repairing it or refusing to have it. by deposited, since its role is not predominant when there is a direct agreement between the parties.
For more information you can contact :
Francisca Franzani | Compliance Group Director | ffranzani@az.cl