by Juan Manuel González | Nov 10, 2023 | Noticias-en
All commercial promotions that promote the consumption of products or services and that designate winners by any random mechanism require prior authorization from the Consumer Defense Unit.
To date, carrying out a promotion without said authorization or in breach of any other aspect of the regulations exposed the organizer to sanctions of warning, request for suspension of the promotion or confiscation of prizes in extreme cases. And, if there are three prior warnings, the prohibition of carrying out promotions for a period of 180 days
Since the last Accountability Law, it was established that economic sanctions may also be applied. They range from 10 to 1,000 Adjustable Units, which will be graduated taking into account the offender’s background, market position and the severity of the non-compliance.
The above represents an important change by introducing the possibility of applying fines that until now were not in the list of possible sanctions, which, depending on the case, could become considerable.
For more information contact:
Carla Arellano | Counselor Ferrere | carellano@ferrere.com
by Juan Manuel González | Nov 10, 2023 | Noticias-en
The Legislature of the province of Río Negro approved the law that complements the National Law of Minimum Budgets for Adaptation and Mitigation to Climate Change No. 27,520, through which provincial actions and strategies for the adaptation and mitigation of climate change are established. with the aim of protecting the inhabitants, the environment and contributing to sustainable development.
Establishes that the Provincial Action Plan against Climate Change is the base instrument for implementing the provincial policy to respond to climate change. Defines the specific actions necessary to achieve the objectives established by the policy. It is made up of a Provincial Mitigation Plan and a Provincial Adaptation Plan. It contains the goals, actions, execution schedule, evaluation mechanisms and necessary budget.
The Plan contains at least:
a. An analysis of the changes observed in the main present and future climate variables.
b. The identification and evaluation of current and future climate risk according to climate threats, vulnerability, and adaptive capacity of people, ecosystems and infrastructure.
c. The identification of critical regions, sectors, activities and climate risk groups.
d. A qualitative and quantitative goal of the necessary adaptation efforts.
and. A quantifiable, anthropic, fair and ambitious emissions reduction goal.
F. The survey of government actions with an impact on the climate change mitigation and adaptation strategy, as well as review mechanisms for said actions.
g. Mitigation and adaptation actions necessary to achieve the planned goals. Description of the monitoring processes, evaluation of actions and definition of baselines and indicators.
Also, the enforcement authority will establish, within the period established by the regulations, measures and actions that seek to limit the magnitude or rate of global warming and its related effects. Mitigation actions include, but are not limited to:
a) Development and implementation of renewable and low-emission energy sources.
b) Promotion of energy efficiency in all sectors of the economy.
c) Promotion of carbon capture and storage, including reforestation and improvement of forest management.
d) Establishment of measures to reduce emissions in the transportation sector, including the promotion of low-emission modes of transportation.
e) Implementation of sustainable waste management programs to reduce emissions from waste management.
f) Development of carbon credit systems that encourage the reduction of emissions.
g) Promotion of sustainable agricultural and land management practices that contribute to the reduction of greenhouse gas emissions.
h) Application of technologies and practices that reduce greenhouse gas emissions in the construction industry.
The mitigation strategy will be governed by the principle of progressivity, taking into account the efforts established in the international framework and the specific contribution to the contribution determined at the national level.
On the other hand, it establishes that the Climate Change Cabinet may establish a Carbon Emissions Credit System based on the creation of measurable units, called carbon credits, that represent a reduction or elimination of greenhouse gas emissions. Each credit corresponds to one ton of carbon dioxide equivalent that has been avoided or extracted from the atmosphere. Entities, whether public or private, can generate carbon credits through projects that reduce greenhouse gas emissions or increase the capacity of carbon sinks. The regulations will determine the percentage of income obtained through the sale of Carbon Emissions Credits generated by provincial public projects that will be allocated to the Climate Action Fund of the Province of Río Negro.
Likewise, it provides that the province, municipalities and development commissions promote the generation, conservation and restoration of carbon sinks, prioritizing, as far as technically and economically viable, the use of native species.
For more information contact:
Gustavo Papeschi | Partner of Beccar Varela | gpapeschi@beccarvarela.com
by Juan Manuel González | Nov 6, 2023 | Noticias-en
We invite you to read the publication of El Mercurio, a space where our associate Constanza Pasarin referred to the sanctions after misleading advertising on digital platforms.
From large companies such as Codelco to public figures such as journalist Mauricio Bustamante, this year they have been the subject of false publications on different digital platforms, whether social networks, search engines, among others.
This is what is known as cyber hoaxes, where cybercriminals use images of people or organizations to spread false content, in order to attract web users to scam them or extract their personal data.
The problem is that this practice is increasingly common, and not only are users affected through misleading or malicious advertising, but also those who turn out to be victims of the use of their image.
In this regard, Constanza Pasarin, lawyer of the Compliance/Tech Group of Albagli Zaliasnik, points out that in Chile the regulation of advertising, regardless of the medium through which it is disseminated, is established mainly in Law 19,496 or Consumer Law, which establishes standards for the protection of consumer rights.
However, it warns that in the context of social networks and platforms where misleading advertising is spread, the prosecution of those behind these practices continues to be a challenge. “This is due, in part, to the intermediary role these platforms play, as well as the geographic location of the product or service provider. If you are abroad, the consumer protection law would not be applicable,” says the lawyer, who is also a member of the legal, cybersecurity, artificial intelligence & women and technology table at ACTI.
Despite the above, it says that if you want to start a legal process against a company in Chile, you can always resort to the National Consumer Service (Sernac), which is the authority in charge of supervising and sanctioning those who promote misleading advertising. . The fines and compensation to consumers will depend on the circumstances of each case, but the regulations establish that they could reach up to 1,500 UTM or even 2,250 UTM (about $144 million, considering the value of the UTM of November of this year) in situations that affect the health, safety or environment of the population.
In addition, it indicates that the Council for Self-Regulation and Advertising Ethics (Conar), made up of private companies and institutions representing the advertising sector in the country, provides guidelines related to this issue, as well as the Electronic Commerce Regulation, which imposes obligations related to the advertising of products marketed through electronic commerce platforms and grants rights to consumers. Of course, they have no legal powers.
Digital stance
On the digital platforms side, Google maintains that they already have solid and clear advertising policies that they harshly apply to protect the ecosystem from fraud situations, reduce hate or misinformation, and stop inappropriate experiences for children. “We develop and enforce policies that help keep people and our partners safe when using our advertising tools,” they say.
And they add: “Our dedication to this cause is reflected in the actions we have taken. In 2022, we added or updated 29 policies for advertisers and publishers, expanded our financial services verification program, and strengthened our election-related ad policies, among others. This allowed us to remove more than 5.2 billion ads, restrict more than 4.3 billion ads, and suspend more than 6.7 million accounts of advertisers who violated our policies. “These efforts represent a significant increase over the previous year.”
Along these lines, Google indicates that it combines human reviews with automated systems based on artificial intelligence and machine learning, which helps them identify violations around the world and take quick and effective measures. “We understand that challenges continue to evolve in the digital world, and that is why we continue to invest in our policies and enforcement. This includes expanding our financial services certification program to protect people from scammers and prevent fraud. Additionally, we are committed to confronting sophisticated threats from malicious actors who attempt to evade detection.”
In the case of Facebook, Constanza Pasarin comments, for example, that the social network recently implemented new measures to combat misleading advertising on its platform. Under this policy, she explains, the company will examine negative reviews submitted by users about businesses that advertise on the platform, with the aim of preventing abuses against consumers.
The lawyer adds that, within this new policy, Facebook will allow users to file complaints related to companies that have experienced problems, either due to dissatisfaction with the quality of the promised products or offers that were not fulfilled as announced in the social network. What’s more, if a significant number of complaints are detected directed at the same company, the latter will be prohibited from publishing new ads on the platform. However, companies will be guaranteed the right to reply and the possibility of responding to complaints.
“For this reason, it is highly advisable to verify the reputation of the company that offers a product or service before making a purchase through a platform or social network, verify if the company is located abroad and examine reviews to avoid being left unprotected” , maintains Constanza Pasarin.
For more information you can contact :
Francisca Franzani | Compliance Group Director | ffranzani@az.cl
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