CHILE Law and Practice Contributed by: Pablo Méndez, Christian Rojas, Pablo Neupert and Vicente Huidobro, TM Abogados
6.5 ESG Requirements There is no explicit statutory duty for company direc- tors to oversee the environmental and social impacts of their activities. However, within the financial sector, the Chilean Financial Market Commission ( Comisión para el Mercado Financiero, or CMF) has issued the General Regulations No 461 (the “NCG No 461”) requiring supervised companies to include sustain- ability information in their annual reports, which indi- rectly requires directors to take these factors into consideration. Although there is no general explicit legal obligation, Chilean companies – especially in the financial sector – are increasingly incorporating ESG criteria in their investment strategies, risk management frameworks There is no specific statutory obligation requiring financial institutions or publicly listed companies to report against sustainable investment criteria. How- ever, the NCG No 461 sets reporting requirements for financial institutions and other regulated entities. Additionally, companies should disclose whether they rely on principles, guidelines or recommendations from national or international organisations, such as the following (among others): • Committee of Sponsoring Organizations of the Treadway Commission (COSO); • Control Objectives for Information and Related Technology (COBIT); • International Organization for Standardization (ISO); and • Task Force on Climate-Related Financial Disclo- sures (TCFD). 6.6 Environmental Audits Audit Requirements There are no general legal obligations or requirements in relation to environmental audits in Chile. In the context of the Environmental Impact Assess- ment System (SEIA), environmental authorisations (RCA) could eventually mandate audit obligations to a and corporate governance structures. Reporting, Monitoring and Enforcement
project owner. However, these are defined on a case- by-case basis for each approved project. Monitoring However, there are some sectoral requirements estab- lished in special laws, such as the monitoring require- ments for sanitation companies to measure the quality of their effluents, enforced by the Superintendency of Sanitation Services (SISS) (Law No 18,902, Article 11B), or the monitoring requirements for pollutants in liquid waste discharges into water bodies, under S.D. No 90/2000, MINSEGPRES. In the context of the Environmental Impact Assess- ment System (SEIA), environmental authorisations (RCA) typically establish monitoring and surveillance requirements for various environmental components, as required by Law No 19,300 and the SEIA Regula- tions. These are defined on a case-by-case basis for each approved project. In addition, the Superintendency of the Environment has also issued various general regulations in accord- ance with its Organic Law, ordering regulated entities to monitor certain specific components. • SMA regulations for monitoring emissions subject to Law No 20,780 Green Tax (Exempt Resolution No 585/2023). • SMA regulations for monitoring systems in salmon farming centres (Exempt Resolution No 2,662/2021). • SMA regulations for monitoring of water in tailings storage facilities (Exempt Resolution No 31/2022). 7. Personal Liability 7.1 Directors and Other Officers Personal Liability for Environmental Damage or Legal Breaches In civil matters, Article 51 of Law No 19,300 on the General Bases of the Environment establishes liabil- ity for environmental damage, which falls on the per- son causing it, without excluding the possibility that individuals acting on behalf of a legal entity may also be held responsible if they directly contributed to the harmful act. Thus, Chilean law establishes a compre-
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