HidroAysén refines legal strategy to address the Committee of Ministers
One of the analysis is how to justify not appeal to the Environmental Court after his RCA is revoked (term to expire on August 27th), because Directors could be sued by shareholders of Endesa and Colbún who feel they are harmed.
Next August 27th deadline to expire on legal HidroAysén appeal to the decision of the Committee of Ministers which revoked the environmental permit for the project. For now, the legal team of the company, in which Endesa and Colbún are partners are working and evaluating various legal strategies.
All led by the legal manager of the company, Camilo Charme, and with the advice of Vergara, Galindo Correa Lawyers and Cubillos Evans Attorneys at Law. This Wednesday, July 30th, the board of HidroAysén-chaired by the general manager of Endesa, Joaquín Galindo-Velez will meet for the first time after the Committee of Ministers adopted a resolution against the company.
That first light on the legal strategy that could be followed would be delivered. And several alternatives have already transcended. One of these is that no appeal to the decision of the committee. However, teams of lawyers are analyzing the implications this could have on the HidroAysén Corporate Directory, but also on the boards of Endesa and Colbún.
Indeed, if not the member companies of the project is appealed should take the loss on the results of this year all the investment already made in HidroAysén, around U.S. $ 320 million. In a report, BanChile estimated the impact on Endesa would reach 9.5% of earnings before tax planned for 2014.
In Colbún would be 49.4%. Against this, the lawyers are discussing a possible scenario which would be a demand for a minority shareholder against the Directors, which could be a basis in Article 41 of the Companies Act: “Directors should use in exercising charges the care and diligence that men ordinarily use in their own businesses and jointly liable for the damages caused to the company and shareholders for their willful misconduct or guilty”.-
Appeal
Two other ways, if they decide to appeal, are simultaneously claiming environmental courts in Santiago and Valdivia. This is because the General Bases On Environment Act provides that any appeal must be carried out in the court where the court that issued the act.
In Santiago, because the final decision of the Committee of Ministers was held in the capital. Meanwhile, in Valdivia because HidroAysén received its RCA in the southern zone, and this court in the Region of Los Rios has authority to evaluate these projects. If claiming the analysis is not limited to the substantive aspects of invoking the Committee of Ministers to revoke the RCA, but also to the legal aspects. In that vein, sources consulted by PULSO agree that one of the legal concepts that served as the analysis is called “decay”.
The concept lies in the exhaustion of administrative remedies to take certain decisions for a specified period. “Only in recent years the Supreme Court has received a number of appeals filed claim by companies regulated by the Superintendency of Electricity and Fuels that had been sanctioned, but that two years had elapsed since the facts. In this case something like this occurs, “explains a source linked to HidroAysén.
Source: Pulso
