CHILE Law and Practice Contributed by: Ricardo Rozas, Max Morgan and Stefano Perretta, JJR Abogados
9. Implications of Non-Performance, IMO 2020, Trade Sanctions and International Conflict 9.1 Force Majeure and Frustration Under Chilean law, a force majeure or fortuitous act is defined as “the unexpected that it is not possible to resist, such as a sinking, an earthquake, the taking of enemies, the acts of authority performed by a public official, etc” (Article 45 of the Chilean Civil Code). Generally, in Chilean practice, to sustain force majeure as an exception to liability, three cumulative condi - tions must be met: • irresistibility; • unpredictability; and • unimputability. The above conditions must also be met in the context of non-performance of a shipping contract. 9.2 Enforcement of the IMO 2020 Rule Limiting the Sulphur Content of Fuel Oil The cap on the sulphur content of fuel oil used in Chilean domestic territorial waters is that established in the MARPOL Convention. Enforcement of these requirements is carried out by the local representa - tive of the vessel’s flag state authority, and the sulphur content is verified according to the bunker delivery note certificates for the bunker’s supply. 9.3 Trade Sanctions Generally, Chile has recognised several UN resolu - tions on trade sanctions. In this respect, Article 38 of Law 19,913 (which creat - ed the so-called Financial Analysis Unit and modified several provisions related to money laundering (Law 19,913)), states that all natural and legal persons indi - cated in Article 3 of Law 19,913 (ie, banks and financial institutions, factoring companies, leasing companies, securitisation companies, etc) are required to inform the Financial Analysis Unit of all acts, transactions or operations carried out or attempted by any of the natural or legal persons identified in the lists drawn up by the Committees established in the UN’s Security Council Resolutions 1267 of 1999, 1333 of 2000, 1373
of 2001, 1390 of 2002, 1718 of 2006, 1737 of 2006, 1747 of 2007, 1803 of 2008, 1929 of 2010, 1988 of 2011, 1989 of 2011, 2253 of 2015, 2356 of 2017 and 2371 of 2017, and in subsequent resolutions or any other resolutions that add to or replace them and that are contained in supreme decrees published in the Chilean Official Gazette. In addition, the aforementioned Article 38 establishes a brief legal procedure whereby the Financial Analysis Unit must request, without prior notice to the affected party and for a specific period, that a Minister of the Court of Appeals of Santiago adopt one or more meas - ures to avoid the use or exploitation of goods, values or money subject to the act, transaction or operation and must ensure that sanctioned parties do not benefit from such goods or come to ultimately possess them. The provision also stipulates an appeal remedy for the review of the measures in favour of the affected party. As regards other regulations enacted as part of US, UK or any other country’s law, generally Chilean law does not recognise these; however, sound Chilean compliance practice does consider them (particularly The authors are not aware of recent cases dealt with by Chilean courts on maritime disputes relating to non-performance of obligations owing to the war in Ukraine. 10. Additional Maritime or Shipping Issues 10.1 Other Jurisdiction-Specific Shipping and Maritime Issues Law 21,132 Law 21,132 came into force on 31 January 2019 with the aim of modernising and strengthening the Chil - ean National Fishing Service (SERNAPESCA). Among other things, the law amended the General Fisher - ies and Aquaculture Law (Law 18,892, or the “Fishing Law”) and the Corporate Criminal Liability Law (Law 20,393) in connection with the criminal consequences of water spills. their extraterritorial effects). 9.4 International Conflict
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