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Commercial Arbitration 2017

Last verified on Tuesday 27th June 2017

Chile

Cristián Conejero and Catalina Amenábar
Philippi Prietocarrizosa & Uría

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
    1. Yes, Chile ratified the New York Convention in 1975 with no reservations.

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
    1. Yes, Chile is party to the following bilateral and multilateral treaties: (i) the Pan-American Convention on Private International Law (Bustamante Code) since 1934; (ii) the Inter-American Convention on International Commercial Arbitration (Panama Convention) since 1976; and (iii) the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States since 1992.

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
    1. Chile has a dual arbitration system in terms of regulation, meaning that domestic and international arbitration are governed by different bodies of law.

      International commercial arbitration is governed by the International Commercial Arbitration Act (Statute Number 19.971), which basically mimics the 1985 UNCITRAL Model Law on International Commercial Arbitration. In addition to this statute, there is also Decree Law No. 2349 that regulates International Contracts for the Public Sector and sets forth a specific legal framework for the state and its entities to submit their disputes to international arbitration. Domestic arbitration is governed by the Judiciary Code and the Code of Civil Procedure.

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
    1. The Centre for Arbitration and Mediation of the Santiago and Chamber of Commerce (CAM Santiago) is the leading Chilean arbitration institution.

      CAM Santiago only serves as appointing authority in arbitrations conducted before it and as administrator of the arbitration proceeding.

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
    1. Yes. Parties may have an arbitration seated in Chile administered by a foreign arbitral institution. As a matter of fact, article 2(d) of the Chilean International Commercial Arbitration Act states as follows: “For the purposes of this law: where a provision of this Law, except article 28, leaves the parties free to determine a certain issue, such freedom includes the right of the parties to authorise a third party, including an institution, to make that determination.” Hence, the possibility of arbitrations administered by arbitral providers is expressly established in the law. Furthermore, on several occasions the Chilean higher courts have recognised awards issued in arbitrations seated in Chile administered by the ICC (eg. Ann Arbor Foods SA v Domino’s Pizza Internacional, rol 1420-2010, 9 October 2012; Constructora Emex Limitada v Organización Europea para la Investigación Astronómica en el Hemisferio Sur, rol 9211-2012, 10 April 2014; Productos Naturales La Sabana SA v Corte Internacional de Arbitraje de la Cámara de Comercio Internacional, Case No. 6975-2012, 29 April 2014).

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
    1. There is not a specialist arbitration court in Chile. The judiciary system nonetheless has remarkably sophisticated its knowledge of the law of international arbitration and has demonstrated to be in favour of it and its further development in the country. 

    Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
    1. In international arbitration, article 7(2) of the International Commercial Arbitration Act provides for the same requirement that is stated in 1985 UNCITRAL Model Law: the arbitration agreement shall be in writing. The statue goes on to define which cases would the agreement come to comply with this formality. Also, article 7(1) of the International Commercial Arbitration Act states the following: “An ’arbitration agreement’ is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.” Hence, arbitration agreements can cover future disputes.

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
    1. Yes. According to articles 229–230 of the Chilean Judiciary Code, parties cannot submit to arbitration disputes belonging to the following subject matters: (i) family law issues, such as alimony disputes, and the division of joint property in divorce cases; (ii) felonies or criminal violations; (iii) cases that should be heard by specific low courts; and (iv) all matters in which the law requires a public prosecutor must be heard. Furthermore, cases involving public policy issues are not arbitrable such as capacity or civil status; antitrust; employment and labour law; disputes between legal representatives and individuals the former act on behalf of; disputes concerning foreign investment agreements executed under Chilean Foreign Investment Statute (DL 600).

      In relation to the arbitrability of certain legal matters, article 34(2)(b)(i) of the International Commercial Arbitration Act states that an arbitral award may be set aside by the competent Court of Appeal only if the court finds that the subject matter of the dispute is not capable of settlement by arbitration under Chilean law.

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
    1. The International Commercial Arbitration Act has no provision referring to non-signatory parties or to joinder of additional parties in international arbitration proceedings. Although, the general principle on contract law is that contracts only have legal effects between signatory parties, there are some cases in which this legislation could provide substantive basis to affirm that non-signatory parties may be bound by an arbitration agreement. Indeed, when discussing the extension of what Chilean private law calls stipulation in favour of a third party, a Chilean High Court extended the effects of the arbitration agreement in favour of the beneficiary third party of such stipulation, regardless the fact he or she had not personally executed the arbitration agreement. (President of the Santiago Court of Appeals, 30 December 2011, rol 1886-2011, Servicios Financieros Altis SA v Grupo Casa Saba S.A.B. de C.V.)

      Moreover, article 2(e) of the International Commercial Arbitration Act accepts the application of institutional arbitration rules with no reservations regarding non-signatory parties. Since it is well known that, for instance, the ICC arbitration rules do not require that all parties be signatories to the arbitration agreement, the referred article 2(e) may be considered an additional reason to include non-signatory parties in arbitrational proceedings, should the case require such an inclusion. 

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
    1. The International Commercial Arbitration Act is silent on the subject, however, if the applicable arbitration rules provide norms for consolidation –like, for instance, the ICC Rules do – there would be no legal basis against such possibility.

      Regarding domestic arbitration, there is no rule on consolidation, which would render the matter unfeasible.

  11. 11.

    Groups of companies
    Is the "group of companies doctrine" recognised in your jurisdiction?

    1. Apart from some employment law disputes, as a general rule there are very few methods of piercing the corporate veil expressly established in current Chilean law. Exceptionally, courts have made a few exceptions restricted to cases of severe, harmful abuse, gross negligence, or fraud based on the group of companies’ doctrine. All of the cases in which arbitration proceeds in corporate matters are expressly established and very much restricted in both procedural and commercial legislation, as well as some special legislation on corporate governance matters, mainly focusing on cases of responsibility in cases of gross negligence.

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?
    1. Yes. The principle is expressly contained in article 16(1) of the International Commercial Arbitration Act, which states that "For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause." Hence, arbitration clauses are considered separable from the main contract.

  13. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
    1. Yes. Article 16(1) of the International Commercial Arbitration Act provides explicitly that "The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement."

      Additionally, article 8(1) of the International Commercial Arbitration Act also states that:

      A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests no later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

      Regarding the possibility for a party to an arbitration to ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence, article 16(3) of the International Commercial Arbitration Acts provides that:

      The arbitral tribunal may rule on a plea referred to in paragraph (2) of this article either as preliminary question or in an award on the merits. If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within thirty days after having received notice of that ruling, the President of the respective Court of Appeals to decide the matter, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.

      In conclusion, the principle of competence-competence is recognised both positively and negatively in Chile.

      In the case Kreditanstalt Für Wiederaufbau, rol 5228-2008 15 December 2009 the Supreme Court of Chile recognised that under the Rules of Arbitration of the ICC arbitrators are competent to rule on their own jurisdiction. 

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
    1. In general, Chile does not present particular issues as seat of arbitration or the place where enforcement of an award is sought. Nevertheless, in order to protect the enforceability of the arbitration clause, it is highly recommended that the context actually provides international elements by virtue of which the arbitration can be truly considered as international according to article 1 of the International Commercial Arbitration Act, which established the scope of application of the statute. These elements are the same as the ones set forth by article 1 of the 1985 UNCITRAL Model Law on International Commercial Arbitration.

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
    1. Yes. Institutional arbitration is much more common than ad hoc arbitration. This is mainly due to the work of the CAM Santiago Arbitration and Mediation Centre, established in 1992, which is focused on giving legal certainty to disputing parties and efficient solutions to the business and legal communities in Chile and abroad. When adopted, the latter kind of arbitration usually is mostly conducted according to the UNCITRAL Rules.

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
    1. Chilean law contains no provision on the matter and we see no particular points to note on the matter.

    Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
    1. Article 21 of the International Commercial Arbitration Act provides that “Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.”

      Such Act contains no limitation period provisions, which will depend on the applicable arbitration rules.

    Choice of law

  18. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
    1. According to article 28(1) of the International Commercial Arbitration Act “The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute”, excluding its conflict of law rules unless otherwise expressed. Failing an agreement of the parties, article 28(2) established that that: “Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of law rules which it considers applicable.” Therefore, the tribunal will choose the applicable substantive law only if the parties fail to indicate it.

    Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
    1. According to article 12(2) of the International Commercial Arbitration Act, an arbitrator can be challenged “only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess the qualifications agreed to by the parties.”

      Chilean law has no provisions on potential conflicts of interest of prospective arbitrators. The IBA Guidelines on Conflicts of Interest in International Arbitration could be applicable only as soft law unless the arbitration agreement or the parties make them binding. In domestic arbitration, arbitrators-at-law shall necessarily be Chilean attorneys according to article 225 of the Chilean Judiciary Code.

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
    1. Yes. Article 11(1) of the International Commercial Arbitration Act states so when establishing that “No person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties.” Moreover, article 2 of the Panama Convention prescribes that “arbitrators may be nationals or foreigners”. There are no special immigration requirements on the matter.

      The Santiago Court of Appeals has confirmed this approach in the case Constructora Emex Limitada v Organización Europea para la Investigación Astronómica en el Hemisferio Sur, rol 9211-2012, 10 April 2014.

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
    1. Article 11(3) and the following subparagraphs of the International Commercial Arbitration Act provides for the same mechanism contained in the 1985 UNCITRAL Model Law. In particular, the President of the Court of Appeals of the seat of the arbitration will act as appointing authority if the parties fail to appoint the arbitrator(s). In the case of a collegiate arbitration, the article aforementioned states in subparagraph (a) that in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall then come to appoint a third arbitrator, and if a party fails to appoint the arbitrator within a time period of 30 days counted from the receipt of a request to do so from the other party, or if the two arbitrators appointed fail to agree on the third arbitrator, the appointment shall be made, upon request of a party, by the President of the Court of Appeals.

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
    1. No, under Chilean law there is no such immunity.

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
    1. There are no legal provisions granting arbitrators the right to secure the payment of their fees. Nonetheless, arbitration institutions could provide for mechanisms with such goal. For example, article 40 of the Rules International Commercial Arbitration of CAM Santiago states that: “The arbitral tribunal and Centre shall have the right to ask the parties to supply the amount of funds they deem pertinent during the course of the arbitration to defray expenses, fees and the administrative fee, based on the corresponding fee schedule and administrative fee.” Likewise, the ICC Rules also contain prescriptions that require advances to cover the cost of the arbitration, including arbitrators’ fees.

    Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
    1. Article 12(2) of the International Commercial Arbitration Act provides that “an arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess the qualifications agreed to by the parties.” The following article establishes the procedure that should take place if this matter becomes an issue in the proceeding. While the IBA Guidelines on Conflicts of Interest in International Arbitration are taken into account, they present only the status of soft law unless the arbitration agreement or the parties make them binding. There is neither relevant case law nor public, substantive experience on challenging international arbitrators in Chile.

    Interim relief

  25. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    1. According to article 17 of the International Commercial Arbitration Act “Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject-matter of the dispute. The arbitral tribunal may request any party to provide appropriate security in connection with such measure.” If the interim relief is not complied, the party that was granted the relief may request its judicial enforcement before a civil court.

      Additionally, parties are also able to request interim relief directly from the courts, which does not affect the competence of the arbitral tribunal. In this regard, article 9 of the International Commercial Arbitration Act states that: “It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure.

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
    1. Yes. Pursuant to article 17 of International Commercial Arbitration Act, the arbitral tribunal may request any party to provide appropriate security in connection with the interim relief that was granted. There is currently a similar existing rule in domestic arbitration

    Procedure

  27. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

    1. General provision adopted by the International Commercial Arbitration Act from the 1985 UNCITRAL Model Law. Taking this into account, we may as well state that parties in an arbitrational proceeding are free to agree on the procedure to be followed by the arbitral tribunal in the conduction of the case (article 19 of the International Commercial Arbitration Act).

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
    1. Should there be a situation of the default of a party, article 25 of the International Commercial Arbitration Act provides that:

      Unless otherwise agreed by the parties, if, without showing sufficient cause: a) the claimant fails to communicate his statement of claim in accordance with article 23(1), the arbitral tribunal shall terminate the proceedings; b) the respondent fails to communicate his statement of defence in accordance with article 23(1) the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations; c) any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it.

      Therefore, failing to participate does not prevent the arbitration from continuing. In the context of recognition and enforcement of foreign arbitral awards, the Supreme Courts has confirmed the rule, stating that there is no breach of due process if the defendant freely decides not to participate in the arbitration (Supreme Court, 21 June 2010, rol 1724-2010, recognition of arbitral award requested by Stemcor UK Limited).

  29. 29.

    Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?

    1. Regarding international arbitration, the International Commercial Arbitration Act remains silent as to the admissible means of evidence, except for an indirect reference in article 20(2), which states that “[…] the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.” Nevertheless, the types of evidence admitted are customary, namely, documents, witness statements, expert reports, inferences, and any other suitable means that should be deemed acceptable. Of course, arbitral tribunals are free to decide the evidentiary merit of every piece of evidence no matter its type.

      In general, the taking of evidence will be governed by the applicable arbitration rules. With respect to the IBA Rules on the Taking of Evidence in International Commercial Arbitration, while well known by the international arbitration community, there is no available information to conclude that they constitute prevalent standards.

      In domestic arbitrations, when national procedural law is applicable, means of evidence are restricted to documents, witness statements, confession or recognition of facts by the parties, personal inspection by the arbitral tribunal regarding a given factual situation, expert reports and inferences. All of this means have a fixed, determined evidentiary merit, which subjects the parties to strict, rigid standards. However, ex aequo et bono arbitrations are much more flexible regarding both means of evidence and the tribunal’s freedom to determine their merit.

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
    1. Yes, as long the tribunal or any party with the approval of the tribunal asks the courts for assistance in the obtaining of evidence. In such case, according to article 27 of the International Commercial Arbitration Act, the arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of the State assistance in taking evidence.

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
    1. The International Commercial Arbitration Act remains silent on this issue. Of course, parties’ freedom regarding the applicable procedural rules enables them to adopt discovery. Otherwise though, discovery will not be applied.

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
    1. No. According to article 24 (1) of the International Commercial Arbitration Act:

      Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the parties have agreed that no hearings shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party.

      Hence, since the parties can decide not to hold oral hearings, no hearing is mandatory. If they remain silent on the subject, the tribunal will decide whether to hold oral hearings (for the presentation or evidence, or on the merits). But unless the parties agree otherwise, the tribunal must hold those hearings when requested by any of the parties.

  33. 33.

    Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

    1. Yes. Article 20(2) of the International Commercial Arbitration Act provides that, unless otherwise agreed by the parties, the arbitral tribunal may gather in any place that deems appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods or documents.

    Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?
    1. Yes. In accordance to article 29 of the International Commercial Arbitration Act:

      In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members. However, questions of procedure may be decided by a presiding arbitrator, if so authorised by the parties or all members of the arbitral tribunal.

      Therefore, the tribunal’s decision-making process does not require unanimity among the members of the tribunal.

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
    1. No. The availability and nature of remedies will exclusively depend on the substantive applicable law.

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
    1. Yes. While the International Commercial Arbitration Act has no provision on the topic, there is no rule forbidding dissent opinions neither in international nor in domestic arbitration. Moreover, dissenting opinions belong to the tradition of both litigation and arbitration in the country.

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
    1. As previously mentioned, the International Commercial Arbitration Act reproduces the 1985 UNCITRAL Model Law. Hence, in Chile the award is subject to the formal requirements contained in such law. Accordingly, pursuant to article 31 and its corresponding subparagraphs of the aforementioned Act, the award must (i) be made in writing; (ii) be signed by the arbitrator (if there is more than one arbitrator, the signatures of the majority will suffice provided that the reason for any of the omitted signature is stated); (iii) state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms; and (iv) state its date and the place of arbitration. The award shall be deemed to have been made at that place.

  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
    1. There are five topics of importance regarding the award and time limits. The first concerns the time the tribunal has to render the award. There is no legal rule on the subject, thus it will be governed by parties’ agreement or the applicable arbitration rules. The matter is sensitive since awards rendered beyond the applicable time limit may be set aside due to the extinction of the arbitral competence.

      The second is the time parties have to ask the tribunal to correct the award. Pursuant to article 33 subparagraph (a) of the International Commercial Arbitration Act, within 30 days of receipt of the award, unless another period of time has been agreed upon by the parties, a party, with notice to the other, may request the tribunal to correct clerical and/or computation errors.

      The third is the time the parties have to ask the tribunal to give an interpretation of a specific point or part of the award. According to article 33 sub-paragraph (b), if so agreed by the parties, a party, with notice to the other, may exercise such right within the same time limit and in the same terms referred to in the paragraph above. In this case, if the arbitral tribunal considers the request to be justified, it shall make the correction or give the interpretation within 30 days of receipt of the request.

      The fourth is the time parties have to request the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award. The same article referred before establishes that unless otherwise agreed and with notice to the other party, a party may ask the arbitral tribunal to make an additional award within 30 days of receipt of the award. If the arbitral tribunal considers the request to be justified, it shall make the additional award within 60 days.

      The fifth is related to the time parties have to file an annulment claim against the award. According to article 34 of the International Commercial Arbitration Act, an application for setting aside an award may not be made after three months have elapsed from the date on which the party making the application had received the award. In case the tribunal corrects or give an interpretation of a specific point or part of the award under article 33, the time limit for filing the annulment claim will start on the date on which the party making the application had received the corrected award or the interpretation referred to.

    Costs and interest

  39. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?

    1. The International Commercial Arbitration Act is silent on this matter. The issue will be generally governed by the agreement of the parties or the applicable arbitration rules.

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
    1. The International Commercial Arbitration Act is silent on the matter as well. Hence, again, the matter will be generally governed by the parties’ agreement or the applicable arbitration rules. 

    Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
    1. The International Commercial Arbitration Act does not allow the parties to appeal the award rendered in arbitration. The only available recourse to challenge the award is the claim of annulment regulated by article 34 of the Act referred to, which accords to the general provisions of the 1985 UNCITRAL Model Law on International Commercial Arbitration.

      This interpretation has been also confirmed by Chilean courts in the following awards: Supreme Court of Chile, Empresas Río Bonito S.A., rol 7341-2013, 16 December 2013; Supreme Court of Chile, Sánchez Arriagada, Meza Swett, Sarroca Villalón con Cavendish Square Holding B.V., rol 6648-2013, 9 September 2013; Santiago Court of Appeals, Vergara Varas con Costa Ramírez, rol 1971-2012, 9 September 2013; Supreme Court of Chile, Ann Arbor Foods S.A., rol 7701-2012, 29 January 2013; Santiago Court of Appeals, Ann Arbor Foods S.A. con Domino’s Pizza Internacional”, rol 1420-2010, 9 October  2012; Santiago Court of Appeals, Agricservices Chile Ltda. con Árbitro Don Alejandro Romero Seguel, rol 2363-2010, 23 July 2010; Santiago Court of Appeals, Publicis Groupe Holdings B.V. y Publicis Groupe Investments con Árbitro Don Manuel José Vial Vial, rol No. 9134-2007, 4 August 2009.

  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
    1. No. Apart from the claim of annulment mentioned above, there is no other recourse on which an award may be challenged.

  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
    1. While there is no case law on the matter, it could be argued that parties can actually exclude any right to appeal or challenge the award according to general contractual principles of contractual party autonomy. Nevertheless, it could be claimed that a hypothetical waiver of the action to set aside the award may involve public policy considerations because of its critical role in the system as a means to oversee minimum standard of legality.

    Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
    1. Article 36(1) subparagraph (a), number (v) of the International Commercial Arbitration Act provides that recognition or enforcement of an arbitral award, irrespective of the country in which it was made in, may be refused at the request of the party against whom it is invoked, of that party furnishes to the competent court where recognition or enforcement is sought proof that the award has not yet become binding between the parties, or has been set aside or suspended by the court of the country in which, or under the law which, the award was made.

      According to case law, this means that the Supreme Court may refuse the recognition of an arbitral award issued abroad if the award is not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made. The Chilean Supreme Court has declared so (Supreme Court, 8 September 2011, rol 4390-2010, recognition requested by EDFI Internacional Sociedad Energética Francesa SA).

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
    1. Chile is proud to state that its high courts are friendly towards recognition and enforcement of foreign arbitral awards. The contemporary case law so demonstrates. For example, the Supreme Court of Chile has stated that:

      modern legal systems, in general, are consistent in recognising extraterritorial efficacy [to foreign awards, including arbitral awards], provided that they satisfy certain requirements of the law of the country where is intended to be recognised. The purpose of recognition proceedings is to check the fulfilment of such requirements, issuing, at the end of it, if it has come to a positive conclusion, the judgment of recognition, in which it recognizes to the foreign award the effects proper of a national judgment.

      (Supreme Court, 8 September 2011, rol 4390-2010, recognition requested by EDFI Internacional Sociedad Energética Francesa SA).

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
    1. Decree Law No. 2349 that regulates International Contracts for the Public Sector authorizes the waiver of jurisdictional immunity for the State of Chile and its companies. Hence, the Republic of Chile and its entities are protected by immunity of execution unless otherwise agreed in the underlying contract. Therefore, while a waiver on such immunity is perfectly valid under Chilean law, it has to be expressly agreed in the relevant contract.

    Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
    1. There is no legal provision relating to either domestic or international commercial arbitration providing for the confidentiality in arbitration. Therefore, the matter is governed by parties’ agreement or by the applicable arbitration rules. However, it must be noted that arbitral tribunals usually treat arbitration proceedings as confidential.

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
    1. Confidentiality regarding pleadings and evidence in arbitration is in principle subject to the same consideration stated above. Additionally, every time that any piece of the arbitral docket is submitted before a national court it immediately becomes publicly accessible. Thus, such publicity will take place in the context of, at least, recognition and enforcement and annulment claims of the award. Exceptionally, custody of the submitted documents may be granted precisely because of a reasonable confidentiality of the documents. Nevertheless, it must be noted that the court’s conformity on such custody is uncertain.

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
    1. Regarding arbitrators, article 12(2) of the International Commercial Arbitration Act provides that parties may challenge the appointment of an arbitrator if they have justifiable doubts as to his impartiality and independence. In relation to the IBA Guidelines on Conflicts of Interest in International Arbitration, since they are only soft law, they will not be mandatory unless otherwise agreed by the parties. Of course, if the applicable arbitration rules govern the matter, their provision will be observed.

      With regard to counsels, Chilean attorneys that are members of the Chilean Bar are actually subject to the Ethical Code thereof. On the other hand, foreign counsels are not subject to national ethical standards.

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
    1. In our view, counsels or arbitrators participating in an international arbitration with its seat in Chile should be aware of the following issues: (i) According to Chilean courts, both choice-of-law and choice-of-forum provisions need to have at least some foreign elements in order to be actually enforced. Thus, the drafting of these kinds of provisions requires professional advice of lawyers with a strong background in international dispute resolutions and international private law; (ii) even though it could be agreed by the parties, discovery of documents, at least as known in the United States, does not belong to the Chilean legal tradition; then, among other consequences, no court will grant evidentiary preliminary measures based on a broad, mandatory concept of discovery.

  51. 51.

    Third-party funding
    Is third-party funding permitted in your jurisdiction?

    1. Article 1911 of the Chilean Civil Code regulates the transfer of litigation rights and article 1912 regulates, specifically, the litigation rights’ sale. Nevertheless, the third-party funding is a different institution than litigation rights’ sale because the eventual claimant does not dissociate of its litigation rights but quite the opposite. Under the Latin maxim qui potest plus, potest minus, we must understand that the third-party funding is permitted in our jurisdiction since it is not expressly regulated or prohibited. (For further information see “Financiamiento de Litigios a Través de Terceros y su Aterrizaje en Chile”, by Elina Mereminskaya, www.camsantiago.cl/informativo-online/2017/01/docs/Articulo_Elina.pdf.)   

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  7. Agreement to arbitrate

  8. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  9. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  10. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  11. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  12. 11.

    Groups of companies
    Is the "group of companies doctrine" recognised in your jurisdiction?


  13. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  14. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  15. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  16. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  17. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  18. Commencing the arbitration

  19. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  20. Choice of law

  21. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  22. Appointing the tribunal

  23. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  24. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  25. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  26. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  27. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  28. Challenges to arbitrators

  29. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  30. Interim relief

  31. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?


  32. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  33. Procedure

  34. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?


  35. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  36. 29.

    Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?


  37. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  38. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  39. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  40. 33.

    Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?


  41. Award

  42. 34.Majority decisions
    Can the tribunal decide by majority?
  43. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  44. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  45. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  46. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  47. Costs and interest

  48. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?


  49. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  50. Challenging awards

  51. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  52. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  53. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  54. Enforcement in your jurisdiction

  55. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  56. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  57. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  58. Further considerations

  59. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  60. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  61. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  62. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
  63. 51.

    Third-party funding
    Is third-party funding permitted in your jurisdiction?