Delayed justice exposes El Salvador to a $ 49 million international lawsuit | News from El Salvador

The British multinational company HSBC denounces an “excessively unusual and unreasonable delay” by the Constitutional Chamber to resolve a judicial process initiated in 2009.

The delay of a judicial response by the Constitutional Chamber in a judicial case could expose the country to an international claim before the International Center for Settlement of Investment Disputes (ICSID) of no less than $ 49 million.

The British multinational bank HSBC, in its Latin American Holding (HLAH), through its legal representatives, sent on December 17, 2020 a letter addressed to the President of the Republic, the Attorney General of the Republic and the President of the Court Supreme Court in which they notify about a “controversy” that arises from a judicial process with the Salvadoran company Ingeniero José Antonio Salaverría y Compañía (IJASAL) in which the bank affirms that they have found “unusual and unreasonable delays” on the part of the Constitutional Chamber of the Supreme Court of Justice.

In the notification, the bank reminds the authorities that in 1999 the country signed an Agreement for the promotion and reciprocal protection of investments with the Government of the United Kingdom of Great Britain and Northern Ireland, abbreviated with the acronym APPRI UK-El Salvador.

READ ALSO: Constitutional Chamber reiterates to Bukele that it cannot shut down the country’s economy

“El Salvador explicitly assumed the international obligation to accord a fair and equitable treatment in its territory to investors from the United Kingdom, including the obligation to protect them against all arbitrary and discriminatory treatment,” the document states.

“The conduct of certain courts in El Salvador in this matter, including its highest judicial authority, constitutes a denial of justice to HLAH and constitutes an inequitable, unfair, arbitrary and discriminatory treatment by El Salvador. The violation of these international obligations means that El Salvador will have to compensate HLAH with public funds for the losses caused as a result of its conduct, ”the document states.

In the letter, the Bank notifies the authorities about this controversy and advises them that if it is not resolved within a period of three months from the date of issuance of the letter, the bank will initiate a process before the International Center for Settlement of Differences Regarding Investments (ICSID) “without further notice”.

“HLAH hopes that the Constitutional Chamber of the Supreme Court will soon resolve the appeal that is pending before it related to the controversy in such a way that it is not necessary to resort to ICSID. If the controversy is not resolved satisfactorily, HLAH will initiate the corresponding arbitration ”, he warns.

The case

According to a chronological summary made by the bank, HSBC entered into a loan contract in July 2007 with the company Ingeniero José Antonio Salaverría y Compañía, of Variable Capital. The loan was for $ 2.1 million.

In June and October 2008 HSBC El Salvador sued IJASAL to collect the outstanding debt.

But later IJASAL sued HSBC claiming that the judicial procedure was in violation of a new agreement. With this he requested that HSBC be ordered to pay the sum of $ 22.7 million in damages and prejudices.

The process reached the Civil Chamber, which ruled in favor of IJASAL, ordering the payment of $ 49.3 million.

According to the summary of its complaint, in the process followed in the First Commercial Court, HSBC did not have the right to participate in the acquittal of positions.

The bank points out that in view of the violations of its fundamental rights, it filed an appeal for protection before the Constitutional Chamber to request that the resolution of the Civil Chamber be reversed.

“The Chamber takes between four and eight months to decide on the admissibility of these remedies,” states the legal firm that, however, the Chamber already has a 17-month delay without ruling on the admissibility of the amparo.

And on the other hand, the execution process has proceeded very quickly. “The First Commercial Court, responsible for the execution, issued a seizure act in just two months,” he says.

The Constitutional Chamber has not yet reported whether it has already admitted the process that the international financial entity claims has been stopped.


Number of Members of Parties Announced: Which Parties Has Increase?

The number of members of the main opposition CHP also decreased in the past two months. In the CHP, which had 1 million 252 thousand 905 members in November 2020, this figure remained at 1 million 250 thousand 635 with a decrease of 2 thousand 270.

The Good Party, which set a target of 400,000 members in 2020, has not yet reached this number. The party, which had 316 thousand 319 members on November 11, 2020, increased the number of members by 14 thousand 131 in two months and increased it to 330 thousand 450 in total.

The HDP, which was targeted by demanding the MHP leader, its partner in the People’s Alliance, increased its number of members in the past two months. HDP, which had 40 thousand 509 members on November 11, 2020, reached a total of 41 thousand 39 with 530 new members.


Lisa Montgomery executed in the United States

Protest against the execution in Terre Haute
Image: Reuters

Lisa Montgomery was executed in Indiana after the Supreme Court dismissed the last appeal. She is the first woman to be executed in the United States after a federal conviction since 1953.

LIsa Montgomery was executed at 1:31 am local time in Terre Haute Federal Prison, Indiana. The American news channel CNN reports. The execution was initially suspended. A federal court in Indiana based the decision on Monday with mental disorders of the fifty-two-year-old. Montgomery is not in a position to understand the planned execution as a result of her act. However, an appeals court overturned the decision a day later. The Supreme Court in Washington finally approved the authorities on Wednesday.

Montgomery strangled a pregnant dog breeder in Missouri in December 2004 and cut an eight-month-old fetus from her stomach. One day after the crime, she was arrested at her home in Skidmore, about 250 kilometers from the scene. She had the kidnapped baby who survived the gruesome act with her. Before she confessed, she told the police and her husband that she gave birth to the girl herself. She was sentenced to death in 2007.

Montgomery is the first woman to be executed in the United States following a federal conviction in nearly 70 years. After 17 years, President Donald Trump resumed federal executions last summer. The Republican government has since executed ten people sentenced to death. He ignored a pardon from Montgomery’s lawyers.

In addition to Montgomery, Terre Haute Federal Prison is also slated for executions of the murderers Cory Johnson and Dustin John Higgs this week. The lawyers for the two death row inmates have also requested a suspension.


America in 2060 – a scenario

Dhe secessionists of the early 21st century declared Joe Biden illegitimate. They inhabited a parallel intellectual universe in which Donald Trump – “as big as a house,” as they claimed – had been re-elected.

The rifts deepened after a radicalized Republican party was defeated in the 2022 midterm elections. And when Kamala Harris narrowly but unequivocally won the election against Donald Trump Junior two years later, and it had to be clear to everyone that a black woman of Indian descent and a gay Vice President (Pete Buttigieg) were to get the reins, there was for the “rebellious seventeen” – they had meanwhile elevated this insult to an honorary title – the measure overflowing: they declared themselves independent together with Texas.


Runoff elections in Georgia: Donald Trump dances to “YMCA” again

NOnce again, as usual, Elton John, Freddie Mercury’s “We are the Champions”, then Donald Trump’s rally hit, Lee Greenwood’s “God Bless the USA”. Trump landed on the “Marine One”, the President’s helicopter, at the Dalton regional airport (state of Georgia). Flags blow in the wind. The “Marine One” is behind the lectern. On Monday at 9:09 p.m. the outgoing President will step onto the stage.

Trump again, a few hours before the polling stations in Georgia open for two important runoff elections. It’s about two senatorial posts – and the future majority in the Senate in Washington. But above all, it is the last election rally in Trump’s term of office, which will end in 15 days. Or even his last election rally? Quite possible. Who knows about Trump?

“There is no way we have lost Georgia,” Trump begins his speech. This sets the tone. He speaks of a “fake election”, so he is immediately on the subject that worries him like no other, namely the presidential election on November 3rd. Trump lost them, including in Georgia, but does not recognize it. In the following 80 minutes he ignites a firework of false statements and conspiracy theories. To this extent, this is a bizarre performance, even by Trump’s standards.

“I had two elections, I won both,” says Trump, saying that he won the 2020 election more clearly than the four years before. Trump’s speeches are always incoherent, meandering from the building of the Wall to Mexico to the military, from Hillary Clinton to Kim Jong-un. So today too. Confused is another friendly expression.

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Yes, yes, Trump is also dedicated to the Georgia runoff elections, but he always finds a link to the presidential election. “The whole world is watching Georgia,” he says, for example, speaking of the “most important election in US history”. And: “Everything is corrupt.”

“Where’s David?” Shouts Trump, referring to Republican Senator David Perdue, who is up for election on Tuesday. Doesn’t he really know? Perdue has been in quarantine for a few days, he was infected with Covid. Then: “Where’s Kelly?” Kelly Loeffler, the second candidate, is there without a mask, like the majority of the audience, including the Trump children Donald junior and Ivanka.

Why did Trump come to Georgia? Loeffler and Perdue “fight for me,” he says. He doesn’t like rallies for other people, says Trump, he always does them for himself.

Sometimes Trump leaves his fairy tale of his election victory on November 3 in doubt. For example, when he warns that the “radical democrats” will not only take the Senate, but also the White House. Nanu? Trump does not use the nickname for election winner Joe Biden (“Sleepy Joe”), which was once used daily, and speaks almost respectfully of “former Vice President Joe Biden”.

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What Trump doesn’t talk about with a single syllable: What he actually plans to do politically in the second term in office, before which he supposedly sees himself. What is the agenda for the White House from 2021 to 2025? Not a word about it. How one has the impression anyway that Trump is no longer in power. His once-busy schedules are blank. “President Trump will work from early morning until late at night. He’s going to make a lot of calls and have a lot of meetings, ”they say recently.

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He, Trump, achieved a “landslide victory”, which was then “stolen” from him. A couple of verbal slaps for “the media” who hated the country and for the “radical democrats”. You are already experiencing the “beginning of communism,” says Trump. Again: when he supposedly just won the election? How can that be?

“Almost 75 million people voted for me,” shouts Trump, referring to the 74.2 million votes he had won nationwide. (The Democrat Biden got 81.2 million votes.) Trump has a few friendly, non-binding words for Mike Pence, “our great Vice President”. He is wonderful and smart, and he will rely on Pence when he – as President of the Senate – will chair the congress session on Wednesday to certify the election results. Let’s see Trump talk about pence by the end of the week.

What happens if the would-be autocrat Trump does not see his will done, he immediately demonstrates. He mentions the Republican governor of Georgia, Brian Kemp, several times without naming him. Kemp, like his Secretary of State, the Republican Brad Raffensperger, have not allowed themselves to be made vicarious agents of Trump. They vouch for the correct start of the Georgia election, which Biden won by 11,779 votes. Raffensperger recently denied Trump in an unprecedented telephone call his wish to “only find 11,780 votes” for his election victory.

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“Brazen abuse of power”

“Crazy” is the Secretary of State, who abides by the law, calls Trump and the crowd cheers in the dark. “I’ll be here in a year and a half to campaign against your governor,” shouts Trump. Again cheers. You already suspect that if the Republicans lose the runoff elections in Georgia, Trump will sing the song of “election fraud” again.

The Democrats wanted to convert America into “Venezuela”, Trump warns: “No jobs, no freedom, no future.” nobody has seen yet ”), the building of the wall, Biden, drugs, health insurance, Obama’s“ lies ”,“ war against Christians ”- and again the presidential election. America threatens to become a “one-party state”.

The fact that the Senate recently overruled its defense budget veto and has still not passed the $ 2,000 checks it required for almost every adult American should annoy Trump. But he only hints at it. The Senate is “good, not great,” he says. The fact that the Supreme Court does not support him in his attack on a democratic election worries Trump more, as this is about him. “I’m not happy with the Supreme Court,” he says, because it “let us down”.

Loeffler can briefly go on stage. She announced that she would appeal the result of the presidential election on Wednesday. Cheers in the audience. Georgia is a “firewall against socialism”. “Fight for Trump,” shouts the audience. Trump welcomes his son Donald junior. But unlike his favorite daughter Ivanka, he is not allowed to step on the stage. Father and daughter greet each other with a kiss. Ivanka Trump announced that her father was a fighter, the “President of the People”.

He had “won two elections”, the second even bigger, says the outgoing president again, thanks Senators Josh Hawley and Ted Cruz, who refuse to accept the election result. Trump bombarded the audience with various fantasy figures on the alleged outcome of the presidential election in Georgia and in various other states. All of this sounds like the story of a mad man. Trump reported that he got along well with North Korea’s dictator Kim Jong-un. About the phone call with Raffensperger, which can be heard in full in the original, he only says: “I love my phone call.” What else?

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Contrary to previous statements, Trump suddenly claims that he is “not interested in 2024”, that he is interested in the election eight weeks ago. He then states: “The presidential election is over.” At the end of the speech, Trump waves to the audience.

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As always at the end of his legendary rallies, “YMCA” sounds from the loudspeakers, the Village People song. Trump raises both arms in the sky of the night. The 74-year-old is dancing on stage, like after so many rallies in recent months. The audience cheers. Then Trump turns to “Marine One”, which takes off shortly afterwards.


This is how the new doctrine of the Supreme Court on labor subcontracting will affect you

  • The high court has modified the criteria that it had maintained since 1997 for companies whose activity is to develop services for third parties

  • He understands that in them the indefinite hiring “becomes anecdotal and limited to minimal areas of direction and management”

  • Variable demand flows cannot be mitigated with a hiring policy that does not conform to the essential rule of the system: indefinite

The 11 magistrates that make up the Social Chamber of the Supreme Court agree that the time has come to change the criterion that they had maintained since 1997, by which the temporary nature of the contracts of the workers of a company could be associated with that of which this signed with another. To reach this conclusion, the plenary session of the Fourth Chamber takes into account several elements, such as “the enormous temporary rates” of the Spanish labor market or that the European Union gives priority to permanent contracts, but above all that there are companies whose essential activity is contracting with others.

The novel ruling of the high court, whose ruling was advanced on December 24, is explained through the following keys:

1.The concrete case

The case that has allowed the Supreme Court to turn its jurisprudence 180 degrees is that of a worker from Masa Puertollano. In 2000, he began working with Babckok Montajes with an employment contract subject to the merchant by which it provided services at the Elcogas de Puertollano thermal power plant. In May 2008 the plant awarded the services to Masa Puertollano. Babckok declared the termination of the worker’s contract and he signed a new one with Masa Puertollano for work or service that was extended until August 2015, when Elcogás communicated to this entity that its services were no longer necessary because it was going to proceed to the cessation of The explotion. Masa Puertollano appealed to the Supreme Court to unify doctrine against the ruling of the Superior Court of Justice of Castilla-La Mancha that had declared the dismissal of this inadmissible. worker who had been developing the same activity for 15 years.

2. Legal framework

The ruling recalls that in 2010 a legal change to try to stop this practice. The law of urgent measures for the reform of the labor market included a limit of three years for this temporary situation, after which the contract would go indefinite. However, it does not apply to the Castilian-Manchego worker, because his contract was prior to the reform.

3 jurisprudence

The Social Chamber explains that in 1997 accepted that there was a time limit in the contracts depending on whether the service provided to the third party was maintained. According to this criterion, the dismissal of the worker should have been declared admissible, but instead the high court declares that “it should not only be rejected that we are facing a temporary labor relationship based on the denaturalization of the cause that justifies it; but what, we should consider the very legality of resorting to this type of temporary contract when the activity of the company is none other than that of providing services for third parties and, consequently, it develops commercial relations with the recipients of such services through the appropriate contracts in each case “.

The sentence adds: “Those who offer services to third parties carry out their essential activity through contracting with them and, therefore, it is illogical to maintain that the bulk of that activity has the exceptional nature that the contract for work or service seeks to serve” . This assumes that They only have an indefinite contract “minimal reductions of direction and management”.

For the Supreme, from now on, the duration of the employment contract will be justified by the particularity of the work or service, “to the extent that this can be clearly defined and delimited with respect to the ordinary or usual volume and emerge as a standout i permanent with respect to the rhythm of the activity of the company “.

4.Excess of temporality

The ruling takes into account the “enormous” rates of temporary employment in the Spanish economy. Remember that the National Institute of Statistics estimates 4.3 million temporary workers that there were in 2019 out of a total of 16.6 million wage earners. Of these, 1.6 million had a contract for works or services. In November, 46% of those contracts were in the service sector. The latest European directives advocate permanent work as a guarantee of quality work.

5.Variable demand flows

The court says it is “aware that business activities are subject to variable flows of demand”, but adds that “they cannot be alleviated through a hiring policy that does not conform to the essential rule of our labor relations system”, as are permanent contracts. The variation must be corrected with delimitation of days, schedules or templates.

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6. Union satisfaction

From the outset, the unions have shown their satisfaction with the ruling. It is “great news, which should contribute to put a stop to temporary and irregular hiring in our country & rdquor ;, has declared the secretary of Trade Union Action of CCOO, Mari Cruz Vicente, who considers that it strengthens its “proposals at the social dialogue table for labor reform, in the sense that a contract cannot justify the hiring of workers on a temporary basis. “” Those who work through these contracts or subcontracts perform stable work and are entitled to a stable contract, “he says, adding that” must to operate the subrogation of the workers “when the company changes in the contract.


Trump starts a new attempt in the fight against the election result

Dhe attorneys for President Donald Trump have made another attempt to challenge the result of the presidential election in the state of Wisconsin. Trump’s campaign team filed a motion with the Washington Supreme Court to overturn a decision by the Wisconsin Supreme Court, a statement said Tuesday.

A majority of the judges there had refused to hear a lawsuit at the beginning of December, with which Trump’s lawyers wanted, among other things, to ensure that more than 220,000 ballot papers sent by post are not included in the count. If the lawsuit – as requested by the Trump camp – is heard, it would turn the outcome in Wisconsin, claimed Trump’s attorney Jim Troupis.

A victory for Trump in Wisconsin would not have changed the outcome of the election. Overall, the Democrat Joe Biden won the election by a clear margin. So far, Trump has not admitted his defeat and claims that he was deprived of victory through massive fraud. Neither Trump nor his lawyers have provided any substantiated evidence to support these claims. More than 50 lawsuits from the Trump camp have been thrown out of the courts so far, including the Supreme Court.


The deadline to claim the mortgage expenses creates a new legal mess

He deadline for claiming mortgage expenses constitutes the last chapter of the interpretive confusion on the part of the judges due to the different jurisprudence on this issue. Several sentences pronounced by the Court of Justice of the European Union (CJEU) and the Supreme court Spanish allow different interpretations of what is the limit that people affected by mortgages have to claim in which they paid expenses that were not theirs. So while in some judicial instancesv – but also in the banking sector – it is defended that the deadline is December 28, 2020, others consider that the nullity of a clause does not prescribe, but the claim of amount must considered from the moment in which such invalidity is issued.

He Ministry of Consumption has come to amplify the confusion by issuing a note in which he states that the possibility of claiming mortgage expenses expires on January 31, 2021, based on a judgment of the Supreme Court, of January 21, 2016, while it assumes that consumers would have five years to complain from that ruling. Most jurists, however, do not share the criteria of the Ministry, and some, such as Eugenio Ribón Seisdedos, specialist in financial law and author of several books on the subject, assures that the time to count must start at the moment in the one that the consumer has had knowledge of the nullity of the clause. And that did not happen until October 20, 2020, which is when the Supreme Court dictates its last ruling on the case, in which it rectifies its previous criteria, which would take the prescription to 2025.

Difference between invalidity and claim

But, nevertheless, the discussion does not end here. According to Jesús María Ruiz de Arriaga, who directs the office to which he gives his name, from the resolution of the CJEU of July this year, it is clear that in the claims regarding expenses there are two actions: one of nullity of the clause and another of claim for amounts. “Although the nullity is imprescriptible, the same does not happen with the claim, where there is a term to exercise the action,” he says. In Catalonia this term is 10 years, in the rest of the State the term is five years if the deed is after 2015 and 15 if it is earlier.

The doubt and disparity of criteria focuses on determining when does that period start to count: From what was the invoice paid? Since the declaration of nullity of the clause? Or since the first sentence of the Supreme in the matter of mortgage expenses? That office has presented a large number of cassation appeals for this issue and the judicial response observes clear discrepancies: In some judicial districts, claims for amount have been dismissed if more than five, 10 or 15 years have passed since the payment of the amount. bill of expenses. In others, they will begin to dismiss claims for amounts when more than five years have passed since the Supreme Court ruling of December 2015 or January 2019. In others, at this time, the claims are estimated, because they consider that the term begins counting from the nullity of the expense clause is declared.

So it respects the claim amount, which does prescribe, contrary to nullity, different jurists go to the judgment of the CJEU of July 2020, in which it is ruled out that the claim period can be counted from the signing of the contract, because that can make the claim. Therefore, it proposes that “neither the moment in which that period begins to run nor its duration make it impossible in practice or excessively difficult to exercise the consumer’s right to request such a refund.”

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That means – in Arriaga’s opinion – that this five-year period must begin to run from when the consumer has the certainty that he can bring the restitution action. “And that action can only be exercised once the nullity of the clause is recognized, since the restitution is an effect of the declaration of nullity of the mortgage expense clause, due to its abusive condition.”

What expenses can be claimed?

The Court of Justice of the European Union (CJEU) issued in July of this year an expense ruling that determined that all mortgage expenses (notary, agency, registry and appraisal) can be claimed, once the clause has been declared invalid . In this way it responded to the criterion of the one who made a distribution of the same between the client and the bank. Furthermore, cancellation costs can also be claimed if they have not been explained in a transparent way.

It corresponds to pay the bank and consumer half the cost of the notary, while the registration is fully paid by the entity. For agency or appraisal, what the CJEU says must be applied: if there is no specific rule, everything must be returned to the citizen. The Supreme Court said in its day that 100% of the management expenses correspond to the entity and, presumably, it will extend it to the appraisal. You can request the refund of the mortgage opening commission, of which the CJEU indicates in the July 2020 ruling that it is abusive if it does not respond to services effectively provided. “Which leads us to the particular interpretation of each court & rdquor ;, say the experts.


The Supreme cuts the temporality in subcontracts

  • It rejects that the temporary nature of the employee may depend on the contracts signed by the company

  • The plenary session of the Social Chamber changes the doctrine that it had maintained since the nineties and limits job insecurity

The Social Chamber of the Supreme Court has modified the jurisprudence that maintained since the decade of the ninety in a sentence in which rejects the temporary limitation of employment contracts in response to commercial contracts of companies. This means in practice end the precariousness of subcontractors, whose workers were always temporary with contracts for work or services determined by the duration of the contract that the entity had signed with a larger entity.

The sentence, of which the magistrate María Lourdes Arastey has been rapporteur, responds to the unanimous criterion of the plenary session of the Fourth Chamber of the high court, made up of a dozen magistrates under the presidency of María Luisa Segoviano. His ruling, like all those of the high court, obeys a specific case, in which the company linked the contracts of its employees for work for years. But it sets a very important precedent in order to avoid that subcontractor workers can never be indefinite, unlike those who perform the same work in the company that hires yours.

Common in certain sectors

With the doctrine of the Supreme Court up to now, it was somehow endorsed that a company, whose employees are indefinite, would prefer to subcontract certain services that it provided to another, with temporary workers depending on the duration of that subcontract signed between the two entities. This is a practice that has become common in certain sectors, such as audiovisuals or telephony, in which you contract the line with one and those who install it belong to another company.

The resolution stops the advantage of subcontracting by pointing out that those who offer services to third parties carry out their essential activity through contracting with them and, therefore, it is illogical to maintain that the bulk of that activity has the exceptional character to which the contract for work or service must attend.

Labor advance

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The sentence, which will be known in its entirety in the coming days, since it has not yet been signed by all the magistrates, declares that it is difficult to continue maintaining that the company can support the essence of its activity in a staff subject to the regime of indeterminacy of labor relationss with another. Legal sources consulted by this newspaper highlight that it is a constant struggle of labor lawyers that until now ran into the wall of criteria more than 20 years ago by high court magistrates who considered themselves progressive.

The ruling adds that the automation of this temporary hiring, by the mere mechanism of the type of activity, can lead to situations of jeopardizing the guarantees sought by European Union law, and that the legislator has designed other instruments to address the variability of the needs of the company and make decisions about the size of the workforce that should be used, such as the different types of dismissal.


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