LOBBY AND LAWYERS: A SOUTH AMERICAN OVERVIEW
| Jurisdiction | Derecho Internacional |
CHAPTER 3B
LOBBY AND LAWYERS: A SOUTH AMERICAN OVERVIEW
Bofill Mir y Álvarez Jana Abogados
Santiago - Chile
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PABLO MIR is a Partner at Bofill Mir & Alvarez Jana Law Firm in Chile, where he specializes in Mining, Energy and Natural Resources, and Public Projects. Mr. Mir advises mining companies and investment banks in projects principally in Chile, Argentina, Peru, Ecuador and Colombia. He has also participated as a consultant to several working groups and commissions of the Chilean Government to improve mining and energy regulations. He led the team that obtained the approval for the first exploration project under the Chile-Argentina Mining Treaty, and the legal team that constructed the Gas Pacífico pipeline that transports natural gas from Argentina to Chile. Mr. Mir is also a frequent speaker at international mining law conferences and seminars. He is a Member of the Rocky Mountain Mineral Law Foundation, the International Mining Professionals Society (IMPS), the International Bar Association's Section on Energy, the Environment, Natural Resources and Infrastructure (SEERIL) and the Prospectors and Developers Association of Canada (PDAC). In Chile, he is a member of the Chilean Bar Association, the legal affairs commission of the National Mining Association (SONAMI) and of the Board of Directors of the Chilean Mining Council. Pablo Mir has been highlighted on numerous occasions by specialized publications as one of the best mining lawyers in Latin America. In 2018 he was included in Who's Who Thought Leaders ranking, and was also voted Best Lawyer's Lawyer of the Year in Natural Resources. Additionally, Chambers & Partners Latin America 2019 recognized Mr. Mir as a top tier (Band 1) lawyer in Mining. Pablo Mir graduated from the Universidad de Chile Law School cum laude in 1987. Before joining Bofill Mir & Alvarez Jana he was a partner at Grasty Quintana Majlis & Cía in Chile.
I. LOBBYING AND THE LAW.
Lobby and legal advice can often be supplemental services reasonably expected to be provided by lawyers as applied to certain matters. Indeed, lawyer's advocacy of a client's interest, coupled with the skills and understanding that these professionals have to negotiate and understand the intricacies of the law provide them with a unique set of skills that can be very useful when it comes to shape the law towards certain goals, and to ensure it is effective when applied.
Yet democracy, transparency in the decision-making process, and accountability demand that this skill and knowledge are not used to exert undue influence on the authority, nor to the detriment that only advances the interest of certain groups by effectively capturing the legislator or the regulator, as the case may be.
With the purpose of avoiding potential negative consequences, some countries have passed regulation aiming to foster transparency when it comes to the exercise of influence over authorities and the adoption of policies. Such is the case of the United States, the European Union, Australia, among others. But, as statistics show, the issue of regulating lobby is still developing - in fact, according to the Organization for Economic Cooperation and Development, since the 1950s roughly 15 countries in the world have implemented this type of legislation.1
In South America, the regulation of lobby is a recent phenomenon. In fact, although many countries have introduced bills seeking to address this matter -ie. Argentina and Brazil-few countries have successfully adopted legislation in this regard. As at the date hereof, only Peru, Mexico, Colombia and Chile have lobby laws already effective and in place.
Moreover, in addition to the scarce regulation of lobbying across the globe, it is also worth noting that most regulation deal with lobbying from a transparency -or access to public information-point of view. Once again, the focus seems to be placed on avoiding corruption and fostering transparency from the authorities by implementing mandatory public registries of names and hearings requested from officers vested with decision-making authority.
It makes sense that the law deals with the issue of lobbying from a general standpoint, irrespective of who is engaging in it. But given that lawyers -just as any other person-can act as lobbyists too, it is worth analyzing this issue besides politics and corruption, and instead reflect on the limitations that apply specifically to lawyers, whether established by the law itself or adopted through soft law from bar associations and contrast them with standard and duties lawyers must be held accountable with when practicing law.
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Consequently, this article will take a look into the existing lobbying regulation in certain countries of South America, and the specific set of rules that apply to lawyers only, along with the results thus far, to see how the impact lobby regulation may have, if any, on a lawyer's representation of clients.
II. THE SOUTH-AMERICAN APPROACH: ADVANCING DEMOCRACY AND TRANSPARENCY
1. Peru : 16 years of experience with few changes
Peru was the first country in South America to enact a law dealing with lobbying when it passed its Lobby Law in 2003 (the "Peruvian Lobby Law"2 ). Its regulations were introduced in late 2018.
Peruvian legislation defines the management of interests-whether self or third-party interest-as a legal activity, through which a natural or legal person, whether national or foreign, transparently promotes their point of view in the political decision-making process, with the purpose of guiding such decision towards the direction they desire.3
Since 2017, there no longer exists a duty requiring lobbyists to identify themselves as such. As such, in spite of the existence of records detailing visits, such records will not necessarily reflect all meetings where a public officer was in attendance.
Under the Peruvian framework, the Peruvian Lobby Law applies to the public administration -as defined in Law No. 27,444-, members of Congress, and the Board Directors of companies conducting state business. The Judiciary, autonomous bodies and administrative courts are expressly removed from the scope of this law.
As to the content of the registration, the Peruvian regulation follows other models implemented abroad, in that it requires detailing the motive and purpose of the interest management, the decision sought from the authority and a summary of the meeting.
Perhaps one of the key differences that makes the Peruvian regulation stand out from among the other existing South American legislations is that the regulations of establish certain legal and ethical duties upon private actors engaged in lobbying. Among such duties...
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