CHILE Law and Practice Contributed by: Pablo Méndez, Christian Rojas, Pablo Neupert and Vicente Huidobro, TM Abogados
10. Civil Liability 10.1 Civil Claims
10.3 Class or Group Actions It is possible to file collective or group lawsuits for damages related to the environment, although the Chilean legal system does not recognise “class action” in environmental law. 10.4 Landmark Cases There are several landmark cases that have shaped environmental and civil jurisprudence in Chile. One of the most significant is the Río Cruces – Celulo- sa Arauco case, in which the Supreme Court ordered reparative and compensatory measures for the dam- age caused to the ecosystem of the Carlos Anwandter Nature Sanctuary. Another notable case is that of Puchuncaví–Quintero , where communities affected by industrial pollution filed lawsuits against companies operating in the industrial park for damages to health and the envi- ronment, sparking a nationwide debate on corporate and state responsibility. 11. Contractual Agreements 11.1 Transferring or Apportioning Liability In Chile, it is indeed possible to use contractual claus- es, indemnities, or other private agreements to trans- fer or allocate responsibility for incidental damages or environmental violations between parties – such as buyer and seller, or principal and contractor. This practice is supported by the “principle of contractual autonomy” (Article 1545 of the Civil Code), which allows parties to freely determine the terms of their obligations, provided they do not contravene public order or mandatory legal provisions. Binding Effect of Agreements on Regulators Private agreements are not enforceable against administrative or judicial authorities. Therefore, they have no binding effect on regulators, who may always hold the project owner or the actual polluter respon- sible, regardless of the contractual terms. Conse- quently, these agreements produce only internal or inter partes effects, without modifying liability before the state entities.
As noted above (see 5.1 Key Types of Liability ), Law No 19,300, recognises an action aimed at obtaining compensation for the damaged environment, pro- cessed before the environmental courts and whose sole purpose is to restore the conditions of the affect- ed environment through the comprehensive restora- tion of the environment to its state prior to the damage (Article 53). At the same time, ordinary compensation judicial pro- ceedings remain available, which are brought before civil courts and are intended to compensate natural or legal persons for losses suffered as a result of envi- ronmental damage. The basis for this can be found in Law No 19,300 itself (Article 53) or in the Civil Code, which regulates non-contractual liability (Article 2332). However, Law 20,600 establishes that a final decision by the environmental court declaring the existence of environmental damage may serve as a basis for subsequent action for damages before the competent civil court (Article 46). 10.2 Exemplary or Punitive Damages The Chilean legal system does not recognise exem- plary or punitive damages as a mechanism of civil sanction. Civil liability focuses on the full reparation of harm, rather than on punishing the offender. Consequently, the amount of compensation is determined based on the actual and proven damage (ie, consequential damage and loss of earnings), without adding addi- tional sums as a deterrent or for exemplary purposes. However, some recent rulings have shown a ten- dency to consider the “severity of the conduct” or the “offender’s intent” when determining the amount of compensation, particularly in cases of pollution or violations of fundamental rights. While this does not constitute punitive damages, it reflects a broader interpretation of the concept of “adequate reparation” under the Chilean private law.
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