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

be paid for affected interests,(92) However, during the d iscussion in Congress, the repre– sentative ofthe Executive indicated that he did not entirely agree with this position lor, in his opinion, the contracts were not valid under Chilean legislation at the time they were entered into and, therefore, compensation should not be paid in any event.(93) The opinion of the majority of the Congress, however, was that compensation snould be paid,(94) This determination was not based, as some have suggested, on the theory that the obligation to perform contractual obligations was analagous to the duty to carry out treaties,(95) A permanenl provision was written into the Chilean Constitution lo this effect;(96) it is unclear, however, what effect this provision will have in the case 01 the copper nationalizatlons, The fundamental problem posed by the nationalizq,tion under internationallaw is again that of retroactivity, The normal result 01 a nationalization is to affect rights arising from luture effects 01 the contrac!, which no longer can be claimed, Such is the case with respect to the constitutional provision declaring null and void the stipulations regarding the government's commitment to buy the 49 % equity interest which still belonged to the American companies, However, the representative 01 the Executive indicated to Ihe Senate Committee that the intention 01 the constitutional amendment was lar broader in its scope and actually was that the parties should be pul back in the posilion which existed prior to the time the contracts were entered into,(97) This explains the incorporation ofthe provision in the amendment which required the deductions 01 any payments made by Chile lor the 51 %' equity interests in the mixed copper companies from the amount of compensation due the American companies,(98) Yet, even assuming the parties returned to the status quo ante and also assuming that this is compatible with Resolution 1803, it could be argued that in any event the affected parties could press claims lor compensation for rights acquired under the concession arrangements which were in effect priorto the time the Ch ileanization agreements were reached with the Frei administration in 1967 and 1969, In this regard, the only effect 01 retroactivity would be that 01 substituting the adjusted book value standard lor the value 01 the 51 '10 equity interests as lixed by the Chileanization agreement. IX CONCLUSJON The nationalization 01 the copper industry poses signilicant and, in many respects, novel questions concerning what international law does or does not requíre in takings 01 property affecting the rights 01 aliens, The lact that two parties to the disputes arising lrom the natlonalizations have invoked relevant principies and practices under internationallaw ih support 01 their respective positions clearly ind ¡cates the lack 01 global consensus regardíng the requírements 01 internationallaw concerning nationalization of property, This essay has attempted merely to highlight some 01 the more contested issues involving the nationalizations, It may be hoped that students and practitioners 01 international law will delve into them in greater depth as more inlormation becomes available, The disputes precipitated by the copper nationalizations can be resolved only il all interested parties work together in a constructive atmosphere with good faith and mutual understanding, (92)Presidential motion 01 Dec, 12, 1970, Senate Bull, al 11, (93)Senate Bul!, at 24, 285, (94)ld" al 123·24, 132, 283, (95)ld., at 286, (96)See final sections 01 Article 10, Sec, 1001 the Constitulion as amended, 10 ILM 1068 (1971), (97)Senate Bul!. at 310, (98)Transitional Art, 17(h) of the Constitution, as amended, 267