Court 101 of Madrid has already activated the legal mechanisms to ensure that Spanish investors in the publishing companies of El Clarín, a Chilean newspaper confiscated by Pinochet in 1973, are compensated, as provided for in the ICSID award, the arbitration body in World Bank investments. In a decree issued last March, the court notified the French multinational Nexans, one of the major global players in the cable systems industry, of seizing any pending payment from its subsidiary in Spain, Nexans Iberia, to the Corporación Nacional del Cobre de Chile (Codelco), supplier of raw materials, to meet the compensation of 551 million dollars (around 520 million euros) fixed by the order of the same Madrid court that executed the award.
Neither the governments of Chile nor Spain have spoken publicly about the case nor have they responded to questions from elDiario.es, but the procedure is ongoing and the decree of the court last March shows that, as is the case with ICSID awards , it is not a moral compensation, but obviously an economic one: compensation must be paid for violating the Treaty between Spain and Chile on the protection of foreign investments. Currently, The clarin it is published only in digital format, while its buildings are still occupied by the military today.
The decree of Court 101 of Madrid, based on the rules set forth in Spanish law for executions, "declares embargoed the liquid credits and rights of any nature that exist in the company Nexans Iberia in favor of the mercantile Corporación Nacional del Cobre de Chile (Codelco Chile) as soon as they are sufficient to claim the responsibilities claimed”, which recalls that they amount to 551 million dollars. The judicial decree orders Nexans to make the deposit in the court's deposit and consignment account.
To questions from elDiario.es, Nexans Iberia admits that it received the seizure request from the court and explains that it has already answered the judge stating that "it does not owe any amount to the company Corporación Nacional del Cobre de Chile, SL". For its part, Codelco has not answered the questions posed by this newspaper about the court's decree and the repercussions it may have for the company's business.
Nexans, headquartered in Paris, is one of the largest cable systems multinationals, with an annual turnover of close to 7,000 million euros and 26,000 workers. For its part, Codelco is the Chilean state-owned copper company, which holds 6% of world reserves of this essential metal for manufacturing cables and electronic components. Its turnover exceeded 20,000 million dollars in 2021.
Despite the fact that Nexans Iberia says that it does not currently have any pending payments to Codelco, the French multinational's embargo decree highlights the risk that it poses for Chile to continue without compensating the owners of El Clarín, which since 1990, when the democratic period began in the South American country, they are offering a friendly agreement. The specific effects of the embargo decree reach all assets and credits of the Chilean State of a commercial nature inside and outside of Spain. In accordance with European regulations, the decree of the Spanish court is directly applicable in the courts of all the states of the EU and also still in those of the United Kingdom.
The international arbitration of the newspaper El Clarín, the longest in the history of ICSID and Chile, has entered the execution phase after 25 years of litigation. The procedure began in 1997, when Víctor Pey, the Spanish businessman who owns the newspaper's shares, went to the arbitration body of the World Bank due to Chile's refusal to agree to an agreement that would allow him to republish the newspaper in the new democratic stage after the dictatorship. . Both Spain and Chile are signatories to the ICSID treaties and, consequently, have agreed to abide by its decisions, which are enforceable in the courts of any of the member countries with the force of res judicata in a final judgment, without the possibility resource on the background.
Pey, who had been exiled to Chile after the Spanish civil war, died in 2018 at the age of 103 without seeing the end of the long process around the newspaper, the most widely read in Chile before the coup with average daily sales of 250,000 copies. Before his death, he gave the shares to the Fundación Española Presidente Allende (90%) and his daughter, Coral Pey (10%), who continued the legal fight. Finally, the ICSID definitively confirmed in 2020 the right to pecuniary compensation for any damage that can be demonstrated, and in December 2021 the 101st court of Madrid reflected in an order the valuation of the shares by the consulting firm Accuracy, based in Paris, one of the international benchmarks in arbitrations: 551.77 million dollars. Of them, 429,797 million principal and 131,972 in default interest.
The Chilean government, then still in the hands of the right-wing Sebastián Piñera, refused to receive notification of the court order 101 in Madrid, which was also sent to Santiago through diplomatic channels. The court has yet to rule on whether or not the refusal of the Chilean embassy in Madrid to receive the notification has caused Chile to lose the deadlines to oppose the execution.
Despite the fact that in his day Piñera had solemnly committed before the European Parliament to comply with the award when it was final, he chose to pass the hot potato to his successor, Gabriel Boric, who as an opposition deputy had championed the cause of The clarin. However, the Chilean government is silent. Also the Spanish, despite the fact that since the ruling of the Supreme Court in the Couso case it is obliged to grant diplomatic protection to the Spanish victims of a judicially established international crime. Neither of the two Executives has responded to the questions asked by elDiario.es.