On Thursday 25 April, our partner, David Cademartori, together with our advisor and former President of the Constitutional Court, Juan José Romero, held a conversation with Ricardo Rivero Ortega, Professor of Administrative Law and former Rector of the University of Salamanca in Spain, and with Camila Astorga Valenzuela, Coordinator of Regulation and Regulatory Simplification of the Ministry of Economy, Development and Tourism, who is in charge of the legislative process of the project, on the main projections and challenges of this new regulation.

During the discussion, David Cademartori explained that the new techniques of administrative intervention incorporated in the draft law manage to combine satisfactorily with those currently contained in the law on the bases of administrative procedures, with the incorporation of new ‘alternative enabling techniques to authorisation’, such as affidavits and prior notice, being very noteworthy.

However, he warns of risks in the use of some existing techniques that could constitute an impediment to financing projects: ‘Positive administrative silence corresponds to a legislative technique that supplements the express will of the administration, authorising an economic activity. While this may solve the problem of delays in the granting of some permits, it could create a major obstacle when applying for financing, as the developer will not have a formal resolution that accredits the legality of his project,’ he said.

Finally, he highlighted the objectives of the new regulation: ‘The purpose of the project responds to a diagnosis shared by all sectors, in such a way that some of the tools contained in the bill could be useful. Now, the big problem is of a practical nature. Civil servants have no real incentives to adapt to the new regulations, which is a major challenge in terms of training and culture within the administrative organisation that has not been easily solved in comparative experiences,’ he said.

For his part, Juan José Romero pointed out that today, on certain issues, the courts of justice and the Comptroller General of the Republic have settled interpretative discussions in a direction hostile to the agility and security of procedures: ‘The opportunity should be taken to issue a couple of laws or specific interpretative provisions that set the most convenient interpretation and, consequently, limit the flexibility of these bodies. Seize the momentum before attention to these issues is forgotten,’ he said.

He also stressed the importance of rationalising (according to the level of risk and the possibility of ex post control) the need for prior authorisations to initiate economic activities: ‘If the excessive number of permits is a problem, we must start by eliminating those that are not indispensable. In this sense, I value the encouragement of the idea of notices and affidavits as an alternative enabling instrument to prior approvals,’ he said.

Camila Astorga said that this project is part of the country’s economic growth, social progress and fiscal responsibility, responding to the mandate to accelerate investment and boost the generation of new jobs committed to in the fiscal pact. She added that sectoral authorisations make it possible to reconcile the development of economic activities with the protection of public interests, and are essential for attracting new investment and improving administration in the service of the people.

Finally, Ricardo Rivero emphasised the importance of culture in administrative organisation and how the institutional design defined by the public authorities has an impact on citizens’ rights and freedoms. In addition, after commenting on the experience of the European Union with the so-called Services Directive, which has a similar legislative design to the draft law, he proposed certain ideas and improvements that could be discussed in the process of law formation and its implementation: ‘Chile has the opportunity not to make the same mistakes’, he concluded.