-37(b)
In relation to the information regarding section 3 of the request, at the
time of the facts of this case and actually, the Foreign Investment Committee
does not have the physical capacity or the legal powers to investigate the
circumstances of the investors. “The role of the Foreign Investment Committee is
merely to facilitate and approve flows of foreign capital into Chile.” It is not the
Committee’s role “to conduct a prior study to guarantee the technical, legal,
financial or economic viability of the economic [investment] projects; this is the
task of the investors.” All the background information that the Committee has is
provided by the investors themselves. “The petitioners asked the Foreign
Investment Committee to provide them with information designed to reveal the
possible environmental impact of the forestry project” and the Committee did not
have this information since it fell within the jurisdiction of the National
Environmental Commission;
(c)
“When the petitioners submitted their petition (December 1998) and up
until 2002, there was no law that regulated the disclosure or confidentiality of the
administrative acts of the Foreign Investment Committee or the documents on
which such acts were based.” The Committee considered that information relating
to third parties and, in general, the specific characteristics of the project were
confidential because they constituted private background information that, if made
public, “could harm legitimate business interests, and in the absence of a legal
source that allowed their disclosure”;
(d)
It has complied with the recommendations made by the Commission in its
Report on Merits; namely, to disclose the information requested by the
petitioners, to grant adequate reparation to the petitioners, and to adapt its
domestic laws to the terms of Article 13 of the Convention;
(e)
Regarding the recommendation to disclose the requested information, the
Commission refers to providing information in general and, “in its
recommendation, omits the information that was handed directly by the Foreign
Investment Committee to the alleged victims and which answered four of the
seven sections in the request made to this Committee.” “The fact that the project
in question was never implemented or executed” signifies that the reasons for
requesting the information have disappeared and that compliance with the
recommendations “is completely out of context.” Despite the foregoing, on June
30, 2005, the State “forwarded […] to the Commission the foreign investment
contracts and the contracts assigning them, in relation to the Río Cóndor project
of the Trillium forestry company”;
(f)
With regard to the Commission’s second recommendation to grant
adequate reparation to the petitioners, the State had informed the Commission
that it was “considering [..] a reparation of a symbolic nature that would
encompass the situation of rights violations of which they were victims, and also
publicize the progress made in the area of access to public information [in Chile],
in order to adapt its domestic legislation to the terms of Article 13 of the
Convention. The nature and characteristics of this symbolic reparation would have
been proposed to the Commission and then advised to the petitioners. This did not
occur owing to the Commission’s decision to submit the case to the Court’s
consideration […].”;
(g)
Regarding the Commission’s third recommendation, the State has adapted
its domestic legislation so that it conforms to the provisions of Article 13 of the