Chile: the balanced view : a recopilation of articles about the Allende years and after

government officials and three justices, one from each of the bodies previously mentiol,Ed and the other from the Court of Appeals 01 Santiago; in addition, the justices were appoinled by their respective organs,(28) This modification did not change the majority in the Copper Tribunal, since the Constitutional Tríbunal, whích had a majoríty ofmembers supportíng the Executíve, itself chose íts representatíve to the Copper Tríbunal. Irrespective of the proce– dure for its selection, the Copper Tríbunal, as constítuted, could not be consídered contrary to the requirements 01 ínternational law, Moreover, those arguments suggestíng that the exclusion 01 the Chilean judíciary Irom revíewíng any dísputes arísing under the nationalí– zation(29) constítutes a wrongful act under internatíonal law should be dísmissed accor– dingly, As García-Amador states: It is even possíble lo think Ihat the State has a ríght, where special círcumstances require and justily such a course, to depart Irom the usual method and procedures, províded that ín so doíng ít does not unjustílíably díscríminale against alíens or commit any other act or omíssíon contrary to international law,(30) However, the mos! serious íssue arísíng out 01 the na!lonalízation concerns the decí– síon of the Copper Tríbunal in whích ít declared inadmissible the appeals liled by the American copper companíes against the decree ofthe Presiden! ordering deductions lor excess prolits,(31) The Executive took !he position Iha! the Tribunal lacked jurisdictíon to review these deductions since they constituted governmental acts lalling within the exclu– sive powers of the President and were discretionary with him, The American companies naturally took the opposite view and argued that should the Tribunal declare the appeal inadmissible, the determination 01 the other matters before the Tribunal would have no purpose whatsoever due to the ímpact 01 the excess prolits on the amount 01 the compensa– tíons,(32) The decision 01 the Tribunal was that the President's Decree was a poi itical act or an act of government. not subject lo review, In a dissenting opínion, the President 01 the Supreme Court, Enrique Urrutia Manzano, lavored the admíssi bi Iity 01 the copper companies' appea Is, He argued that the constitutio– nal amendment conferred jurisdíctíon on the Tríbunal to revíew "the determínatíon 01 the índemnílicatíon as well as the deductíons lor excessive profits"(33) and that such review was the only way the copper companies could exhaust national jurisdiction as required by Resolution 1803. In this regard, he stated that "it would have been illusory to set up this Tribunal, merely to take cognizance 01 claims against the compensatíon lixed, il at the same tíme the affected parties were denied the right to appeal against the decision on excessive prolíts belore the Tribunal... "(34) The effect 01 the maJoríty's decísíon, he added, "would mean denying those companies any possí bi litY 01 obtaíníng a jurísdictíonal revíew of perhaps the most importan!, transcendental aspect"(35) í.e" determínatíon 01 excess prolits and deductíons. (28)Transitory Art. 17 (e) 01 Ihe Conslitulion, as amended, 10 ILM 1069 (1971), (29)The exclusion 01 Ihe Chilean judieiary Irom reviewing any maller arising Irom the copper nationalizalion was officially proposed by the Executive on Ihe ground Ihat Ihe Court would apply "a crilerion Ihal belittles the maller ceducing Ihe whole subject lo a mere relalionship between private parties governed by private law" Stern. TI", Judicial 1I1/d Admil/islrative Procedures JI/volved ín rhe Chilean Copper Exproprialíons, Proc, Am, Soc. Inl. L. 205-13 (1972); Senate Bul!. a138. Forthe purposes ofthe agrarian relorm in Chile, whích represents anolher major area where expropriation has been implemented under the aulhorily 01 law, specialized coulÍs were also established lo resolve alllegal disputes. On Ihese procedures.see Goldman and Paxman, Real Properly Valualions in A.rgemíl111, Chile. ami México in 2The Valualion 01 Nationalized Property in Internalional Law 142-44 (R LiÚiched. 1973). (Here in aftercited as Valuation), (30)Fourth Reporl, supra nole 10, al 16, as retormulated in Garda-Amador, supra nole 9, al 222. (31 )Decission 01 Aug, 11, 1972 01 the Special Copper Tribunal on the question 01 excess prolils 01 nationalized copper companies in 11 ILM 1013-61 (1972), (32)Summary 01 opinions id" al 1013-16, (33)ld., al 1056, (34)ld" al 1059-60, (35)Jd., al 1059. 259