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Chapter 8 - Risk and Chilean Private Law
- from Part I - Risk Overviews
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- By Cristián A. Banfi, University of Chile, María Paz Gatica, University of Chile, María Agnes Salah, University of Chile
- Edited by Matthew Dyson
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- Book:
- Regulating Risk through Private Law
- Published by:
- Intersentia
- Published online:
- 13 October 2018
- Print publication:
- 31 January 2018, pp 195-222
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- Chapter
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Summary
This chapter intends to show that there is no such a thing as ‘a systematic treatment of risk’ across private law’ s principal sources: legislation, doctrine and case law. However, the main contribution of Chilean private law to the conceptualisation, distribution and control of risks takes place in two different contexts, namely contract and extracontractual liability. In this chapter we will focus on extracontractual liability. The appreciation of risks has steadily increased in importance in Chilean society and has thus been subjected to a more sophisticated analysis by experts and regulators. This is reflected in legislation at different levels and in respect of a wide variety of activities with diverse degrees of danger. Yet for all that change, private law remains underdeveloped and inadequate in its treatment of risk. This failure is particularly evident in the limited role played by court decisions in the definition and management of risks. In Chile, judicial decisions are normally where the law in action is found. However, in respect of risk, Chilean case law has been less influential than doctrine and legislation. Rather, judicial decisions seem to confirm that the impact of private law on the conceptualisation, allocation and control of risks is modest. Courts tend only to apply a few abstract rules on extracontractual liability contained in the Civil Code that distribute risks among victims and wrongdoers. Courts usually enforce these default rules without engaging in risk analysis itself. Judicial creativity is scarce. However, the one potential area where judicial development has been engaged is the development of a presumption in case of liability for one's own acts specifically out of article 2329 of the Civil Code, a technique which may hold some hope of judicial contribution in the future.
RISK: CLARIFYING CONCEPTS
Risk, although pervasive in Chilean law, is under-theorised in legal discourse. By and large, the notion of risk is conceived in similar terms across doctrine, legislation and case law. It is generally understood in the most natural or colloquial sense of the term, that is, ‘contingency or proximity to harm’. In turn, contingency is defined as ‘the possibility that something does or does not happen’, danger as ‘an imminent risk or contingency that a mischief occurs’, and imminent as anything ‘that threatens or is about to happen shortly’.
Chapter 17 - Sub Terra: Risk in the Chilean Mining Industry
- from Part II - State of the national art on risk
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- By Cristián A. Banfi, University of Chile, María Paz Gatica, University of Chile, María Agnes Salah, University of Chile
- Edited by Matthew Dyson
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- Book:
- Regulating Risk through Private Law
- Published by:
- Intersentia
- Published online:
- 13 October 2018
- Print publication:
- 31 January 2018, pp 399-418
-
- Chapter
- Export citation
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Summary
INTRODUCTION
Chile is usually recognised as a mining country, the development of this old and established industry being one of the most important sources of work and economic development. From a legal perspective, the importance of this industry has even resulted in a constitutional clause guaranteeing the protection of property over mining concessions. The main regulation devoted to the exploitation of minerals is the current Mining Code. Despite the risks involved in mining, none of the Mining Code's provisions refer to the concept of risk, nor does it set out a coherent treatment of risk. However, several other sources – such as complementary or general statutes, administrative, labour and environmental regulations, and case law – flesh out how risk is treated in the mining industry.
Mining is certainly a very attractive case study, as multiple key aspects of risk are inherent in this activity. The importance of risk is recognised from start to finish, before mines start their activity, during their operating life, and long after mine sites are closed. The risks involved can be classified by looking prospectively at the subject or object which is damaged as a result of the realisation of the risks arising – thus showing the lack or failure of preventive measures – from the mining activity, namely the environment, private property, and the life and health of miners, as well as the surrounding community. Moreover, mining is a particularly useful economic sector to examine from a risk perspective for two further reasons. First, it is pervaded by a relentless tension between socio-political and legal forces. The struggle between these forces can be seen in parliament, the administrative authorities, courts, trade unions, employers, the environment itself, and the community at large. Secondly, mining provides a neat illustration of the interaction between preventive measures and ex post remedies throughout the different stages of a given operation. In particular, extracontractual liability for harms ensuing from risks wrongfully and/or inefficiently dealt with stands out amongst a number of ex post responses provided by the Chilean legal system.
As will be explained, the goal of minimising the risks involved in the development of mining activities is established in legal and administrative regulations of several kinds.