METS Law Guide: Navigating Cross-Border Legal Challenges when Entering Chile

Written by Luke Musto, Associate

Expanding your Mining Equipment Technology & Services (METS) business into a new international market can be a game-changer for growth and profitability. Chile, with its rich mining resources and growing demand for adjunct services, is a prime destination for METS companies looking to expand to a global level. However, this move comes with its own set of cross-border legal challenges. In this blog post, we’ll explore the specific legal considerations for METS companies when entering the Chilean market and how to navigate them effectively.

1. Understanding Chile’s Regulatory Environment

Chile’s regulatory framework for METS companies is well-established but can be intricate. Key aspects to consider include:

• Mining Regulations: Familiarize yourself with Chile’s mining laws, including concessions, royalties, and environmental requirements. Compliance with these regulations is essential for smooth operations.
• Energy Sector: Understand the energy regulatory landscape, including renewable energy incentives and transmission requirements.
• Transportation and Infrastructure: Be aware of regulations governing transportation infrastructure projects and logistics.

It is essential that companies entering Chile have an understanding of the regulatory framework  – while it is sophisticated it can also be at times bureaucratic in nature.

2. Entry Strategy and Business Structure

Determining the right entry strategy and business structure is crucial. Consider options like:

• Subsidiary vs. Branch Office: Decide whether to establish a subsidiary or a branch office in Chile, each with its legal implications regarding liability and taxation.
• Joint Ventures: Partnering with local companies can help navigate the local market and regulatory landscape more effectively.
• Acquisition: The acquisition of an existing Chilean METS company is a viable entry option, offering a ready-made infrastructure and established local relationships, however, it comes with its own unique set of challenges as a thorough due diligence and subsequent negotiations with the acquisition target will need to be conducted.

3. Licensing and Permits

Ensure you have the necessary licenses and permits to operate legally in Chile. Depending on your specific operations, this may include:

• Environmental Permits: Compliance with Chile’s stringent environmental regulations is vital, and obtaining the required permits can be time-consuming.
• Mining entry permits: All of the big mines require service providers to have registered in specific registries to ensure they are meeting safety regulations.

4. Taxation and Customs

Understanding Chile’s tax regime and customs procedures is crucial for financial planning. Consider:

• Corporate Taxes: Chile’s corporate tax rate can vary, and understanding tax incentives and deductions is essential.
• Customs and Import Duties: Familiarize yourself with customs procedures, import/export duties, and potential exemptions.
• Double tax agreements: Chile has many double tax agreements with countries in the region and globally (including Australia). Specialised tax lawyers will be able to assist your company in taking advantage of these treaties to maximise your tax efficiency.

5. Intellectual Property Protection

Protecting your intellectual property (IP) when entering Chile is a must. Consider:

• Trademark and Patent Registration: Register your trademarks and patents in Chile to safeguard your IP rights.
• Technology Transfer Agreements: Clearly define the terms of technology transfer, including licensing and confidentiality agreements.

METS companies’ (IP) is often the most valuable asset that they will have, but this is often overlooked and not adequately protected. It is essential that great care is taken with IP when expanding into a new jurisdiction, as while there are new opportunities to exploit the value of your IP, it also opens it up to new risks.

6. Employment Laws

Compliance with Chilean employment laws is critical. Chile can be a high-risk jurisdiction for employment law litigation, given it is generally very favourable to employees in all matters. In particular, be aware of:

• Employment Contracts: Ensure you have legally compliant employment contracts for your workforce. These should always be drafted by a lawyer, given they have strict requirements and if incorrectly drafted can have costly consequences for employers.
• Work Visa and Permits: Understand the visa and work permit requirements for expatriate employees, if applicable.

7. Dispute Resolution Mechanisms

Know the dispute resolution mechanisms available in Chile:

• Arbitration: Consider including arbitration clauses in contracts for a quicker and potentially more predictable resolution of disputes.
• Local Courts: Understand the local court system and the enforceability of judgments in other jurisdictions. Chile has a civil law system that varies significantly from common law jurisdictions (such as Australia).

8. Cultural Sensitivity and Local Partnerships

Chilean business culture and etiquette will likely differ from what you’re accustomed to. While many companies will have English speakers on their team, this certainly cannot be assumed. In addition, Chilean Spanish is famously different to other regional dialects and can be difficult to understand even for Spanish-speakers. Building strong local partnerships and understanding the culture can facilitate smoother operations and negotiations.

9. Compliance and Due Diligence

Regularly conduct compliance audits and due diligence to identify and address any legal issues promptly. Regular compliance audits should be an ongoing practice, helping METS companies detect and rectify any potential issues promptly. Due diligence, on the other hand, is a comprehensive examination of the potential risks and opportunities inherent in the Chilean market. This process encompasses financial, legal, environmental, and operational assessments to identify any red flags or hidden liabilities.

By committing to robust compliance and due diligence practices, METS companies can confidently navigate the Chilean legal landscape, safeguard their interests, and position themselves for sustainable growth.

Conclusion

Expanding your METS business into Chile presents significant opportunities, but it’s essential to approach it with careful consideration of the country’s unique legal landscape. Seek expert legal counsel, conduct thorough research, and collaborate with local partners who understand the Chilean market. By proactively addressing legal challenges and leveraging local expertise, your METS company can confidently enter the Chilean market, tap into its vast potential, and contribute to the nation’s dynamic Mining Equipment Technology & Services sector. With the right approach, Chile can be a strategic gateway to international growth and success in the METS industry.

Harris Gomez Group opened its doors in 1997 as an Australian legal and commercial firm. In 2001, we expanded our practice to the international market with the establishment of our office in Santiago, Chile. This international expansion meant that as an English speaking law firm we could provide an essential bridge for Australian companies with interests and activities in Latin America, and to provide legal advice in Chile, Peru and the rest of Latin America. In opening this office, HGG became the first Australian law firm with an office in Latin America.

As Legal and Commercial Advisors, we partner with innovative businesses in resources, technology and sustainability by providing strategy, legal and corporate services. Our goal is to see innovative businesses establish and thrive in Latin America and Australia. We are proud members of Austmine and the Australia Latin American Business Council.

To better understand how we can support your management team in the Region, please contact contact@hgomezgroup.com