Walmart Sues for Protection Under the Constitution

SANTIAGO — Walmart is seeking court orders for police protection in six cities in Chile. It’s pursuing this recourse after a third of its stores have been affected by riots and looting. Other businesses, big and small, might soon follow suit.

“Walmart Chile, the local subsidiary of the world’s largest company,” said that it had experienced “1,200 episodes of looting and fires at 128 of its approximately 400 stores” in Chile, and that “34 supermarkets had been set on fire, and 17 of them destroyed,” as reported by Reuters.

The company has now initiated court actions against Chile in six cities, Concepción, Temuco, Puerto Montt, Valdivia, Chillán, and Arica, reportedly saying the attacks on its stores have put its staff’s safety and jobs at risk, “gravely” affected its ability to operate in the country and caused it “enormous economic damage.” In Chile, the supermarkets Lider, Ekono, aCuenta and Express fall under the wings of Walmart.

In court documents submitted last week, Walmart Chile said, “The state of Chile has failed to fulfill its duty to guarantee public order and internal public security,” and that the state has “failed to protect its premises and staff with a ‘lack of timely reaction to evident vandalism.’ ”

The state is allegedly responsible because of the constitutional guarantees of the right to property and the freedom to develop an economic activity.

Walmart Chile also reportedly said that it had sought the protection orders under the Constitution to ensure its stores could continue supplying customers and would not seek reimbursement from the government for the damages. 

More specifically, in a statement quoted by Diario Financiero,  the company said, “Walmart Chile does not intend, nor has it intended, to hold the state responsible for the damage that occurred on its premises … on the contrary, the actions are intended to request the security that, due to the risk and danger in each case, was necessary … Therefore, as a company we must take the necessary protection measures, both physically and legally to ensure the operation of our premises and not disrupt the supply of basic goods to our customers. Therefore, Walmart Chile decided to request protection from the state, as a mechanism to meet that goal.”

The Curse of the Piocha de O’Higgins

In the actions, the company seeks police protection for 76 supermarkets: 

  • 29 in Concepción 
  • 16 in Temuco
  • 16 in Puerto Montt 
  • 8 in Valdivia 
  • 6 in Chillán 
  • 1 in Arica 

Walmart’s lawyer, Christian Fox Igualt, of Tomasello & Weitz, reportedly emphasized, “Bearing in mind the notoriety of the threat of new and serious effects on constitutional guarantees, my clients urgently require the necessary presence and deterrent and protective action of law enforcement and public security, to restore the rule of law, preventing such [damage as Walmart has suffered from being] repeated, an intervention that is urgent and that we request is decreed by means of the interposition of the present recourse of protection.”

What Is a “Recurso de Protección”?

The action Walmart has filed in each case is a “recurso de protección”—protection recourse—under Chile’s Constitution.

The action is one that the Constitution grants to all “persons,” natural or legal (e.g., companies), who, as a result of arbitrary or illegal acts or omissions, suffer deprivation, disturbance, or threat to their constitutional rights and guarantees.

The rights as to which a recurso can be presented are described in article 20 of the Constitution, which in turn refers to specific rights listed in article 19, including the ones Walmart cites in support of its recursos: the right to property and the freedom to develop an economic activity.

The purpose of a recurso is to obtain a court order for all necessary measures to reestablish the violated right and ensure its protection.

The recurso is filed with the Court of Appeals in whose jurisdiction the act was committed or the omission caused by the violation was incurred.

The deadline to file is 30 calendar days after the occurrence of the act or threat that motivates the appeal or since the person became aware of the act or threat, a fact that must be accredited before the court. 

Police General Rozas: I Will Not Fire Anyone

Will Others Join Walmart?

The 30-day deadline could mean many more recursos are on the way. Indeed, Diario Financiero is reporting that Walmart’s decision to file recursos has ignited “government alerts” and that, according to senior sources from the Piñera administration, the issue worries the executive branch, especially the Interior Ministry, because this could be the beginning of a series of legal actions by large companies against the state and also of small and medium enterprises (SMEs), that will be watching Walmart’s cases to decide whether to pursue the same course.

Before Walmart, the Bar Association of Concepción had already filed recursos on behalf of small merchants there.

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