Challenging and Enforcing Arbitration Awards: Chile

1. Must an award take any particular form?

Chile

Chile has a dual system of arbitration legal sources; this is to say that domestic and international arbitration are subject to different legal regimes.

International commercial arbitration is governed by the International Commercial Arbitration Act (Law No. 19.971), which adopts the 1985 UNCITRAL Model Law On International Commercial Arbitration (1985 UNCITRAL Model Law).

Pursuant to article 31 of Law No. 19.971, which adopts the 1985 UNCITRAL Model Law – the award must satisfy the following requirements as to form:

• the award shall be in writing and signed by the arbitrator or arbitrators. In arbitration proceedings with more than one arbitrator, the signatures of the majority of the members of the arbitral tribunal shall be sufficient, provided that the reasons for the absence of one or more signatures are stated;
• the award of the arbitral tribunal shall be reasoned, unless the parties have agreed otherwise or it is an award rendered on the basis of a settlement; and
• the award shall state the date on which it was rendered and the place of arbitration.

2. Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)? What are the time limits?

Chile

Article 33 of Law No. 19.971 establishes the possibility of requesting the arbitral tribunal, with notice to the other party, to correct or interpret the award. This request must be submitted within 30 days after receiving the award – unless another period has been agreed upon by the parties. The correction refers to any calculation, clerical or typographical error or any other mistake of similar nature. Also, if the parties agree, the arbitral tribunal, with notice to the other party, may be requested to give an interpretation of a specific point or part of the award. If the arbitral tribunal deems the requests justified, the correction or interpretation shall be delivered within 30 days of receipt of the request.

In addition, the arbitral tribunal may correct an error of the type of those described below on its own initiative within 30 days of the date of the award.

Furthermore, unless otherwise agreed by the parties, any of them, with notice to the other, may ask the arbitral tribunal, within the same 30 days referred to above, to make an additional award on claims that were not covered by the original award. If the arbitral tribunal deems such request justified, the additional award be issued within 60 days.

3. May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?

Chile

Article 34 of Law 19.971 establishes application for setting aside as the exclusive recourse against arbitral awards.

Appeals may be available only in domestic arbitration. The main differences between those recourses are that setting aside is only available on specific and strict grounds established by article 34 of Law No. 19.971. Conversely, appeals seek to amend the award based on a mistaken determination of factual and/or legal grounds – that is to say, merits review. 

4. Is there a time limit for applying for the setting aside of an arbitral award?

Chile

Under article 34 Law of Law 19.971, the application for setting aside must be made within three months of receipt of the award – whether it be an original, corrected or interpreted award.

5. What kind of arbitral decision can be set aside in your jurisdiction? Can courts set aside partial or interim awards?

Chile

Although in most cases application of setting aside targets final awards, there are no legal rules excluding partial or interim awards from the scope of this recourse under article 34 of Law 19.971.

6. Which court has jurisdiction over an application for the setting aside of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Chile

The competent court to hear and resolve the nullity of the award is the competent court of appeals, exclusively.

7. What documentation is required when applying for the setting aside of an arbitral award?

Chile

Law 19.971 has no provision on the matter. Nevertheless, because the application for setting aside must be filed before the competent court of appeal, the applicant must fulfil all the legal requirements of any written submission before the judiciary. In addition, the applicant must attach a certified copy of the arbitral award.

8. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with the application for the setting aside of an arbitral award? If yes, in what form must the translation be?

Chile

Yes, in that case it is necessary to submit a translation with the application for setting aside the award. According to the applicable domestic civil procedural rules, the translation will be done by an expert appointed by the competent court of appeals, or by the applicant him or herself, in which case the other party may ask that court to appoint an expert to review the translation.

9. What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Chile

There are no other practical requirements relating to the setting aside of an arbitral award. Regarding language of the submissions, although Chile technically lacks an official language, Spanish works de facto as it. Therefore, in practice, any submission in a language different from Spanish will have no effect. In relation to the length of the submission, there are no limitations.

10. What are the different steps of the proceedings?

Chile

The procedure is simple:

• application;
• notification;
• reply of the opposite party;
• hearing – only for oral arguments; and
• decision.

11. May an arbitral award be recognised or enforced pending the setting- aside proceedings in your jurisdiction? Do setting aside proceedings have suspensive effect? If not, which court has jurisdiction over an application to stay the enforcement of the award pending the setting aside proceedings, and what are the different steps of the proceedings?

Chile

According to article 36 of Law No. 19.971, if the setting aside is pending, the court where recognition of enforcement is sought may adjourn its decision. This court is the one competent over an application to stay.

Therefore, setting aside proceedings may actually have suspensive effect.

12. What are the grounds on which an arbitral award may be set aside?

Chile

In accordance with article 36 of Law No. 19.971, the award may be set aside by the competent court of appeals only if:

• the party making the application furnishes proof that:
  • a party to the arbitration agreement was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under Chilean law; or
  • the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his or her case; or
  • the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award that contains decisions on matters not submitted to arbitration may be set aside; or
  • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this law from which the parties cannot derogate, or, failing such agreement, was not in accordance with the ICA Act; or
• the court finds that:
  • the subject-matter of the dispute is not capable of settlement by arbitration under Chilean law; or
  • the award is in conflict with the public policy of Chile.

To date. Chilean courts have not set aside any award, which shows that the Chilean judiciary has an objective friendly approach to arbitration.

13. What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges are available?

Chile

The effect of the decision on setting aside is that the award will be declared null and void. This consequence may affect the award totally or partially – for instance, if the award deals with a dispute not contemplated by or not falling within the terms of submission to arbitration, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only the part of the award that contains decisions on matters not submitted to arbitration may be set aside.

This decision on setting aside cannot be challenged.

14. Will courts take into consideration decisions rendered in relation to the same arbitral award in other jurisdictions or give effect to them (eg, in recognition or enforcement proceedings)?

Chile

According to the case law existing in Chile on the matter, awards that have been set aside have not been recognised and enforced in Chile.

15. What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

Chile

Chile is a contracting state to 1958 New York Convention (NY Convention) since 1975. Chile is also a party to: (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 (ICSID Convention) since 1992.

In addition, recognition and enforcement of foreign arbitral awards are governed by Law No. 19.971, which in turn adopts the NY Convention regime. The purely procedural rules for recognition and enforcement themselves are set forth by the Code of Civil Procedure.

16. Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under article I(3) of the Convention?

Chile

Yes, Chile is a contracting state to the 1958 New York Convention (NY Convention) since 1975, with no reservation under article I(3) thereof.

17. Is there a time limit for applying for the recognition and enforcement of an arbitral award?

Chile

Chilean arbitration law does not address the matter. Therefore, it is subject to the general procedural provisions on enforcement of local judgments. Accordingly, after recognition, the award can be enforced through the general enforcement procedure within three years after it become legally final and definitive. Some judicial decisions have stated that such term begins upon recognition of the award through exequatur. Nevertheless, the most conservative approach is considering the date of the award itself as the starting date of three-year term previously referred to.

18. Which court has jurisdiction over an application for recognition and enforcement of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Chile

International arbitral awards shall be first recognised before enforcement. The recognition phase is called exequatur, a short proceeding before the Supreme Court. Once the exequatur phase is successfully ended, the award will be considered in Chile as if it were a final and binding national judicial decision; as such it is enforceable through the enforcement procedure – referred to above – before the competent trial court.

Domestic awards, instead, need no recognition, and may be directly enforced by either the arbitral tribunal itself (though with no imperium) or by the competent trial court through the enforcement procedure.

19. What are the requirements for the court to have jurisdiction over an application for recognition and enforcement and for the application to be admissible? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

Chile

Regarding recognition, (i) the exclusive competent court is the Supreme Court, and there is no need to identify assets in Chile; (ii) for the application to be admissible, pursuant to article IV of the New York Convention and article 35(2) of Law 19.971, the applicant must supply the duly authenticated original award or a duly certified copy thereof, and the original arbitration agreement referred to in article 7 or a duly certified copy thereof. If either the award or agreement is not made in Spanish, the party shall supply a duly certified translation thereof into such language, this is to say, a translation made by the Ministry of Foreign Affairs.

On enforcement:

• the requirements for a given trial court to have competence over an application for enforcement are contained in the Judiciary Code. Absent agreement of the parties, in general, the competent trial court will be the one connected with the domicile of the debtor; and
• for the application to be admissible, the applicant must supply the duly authenticated original award, plus the favourable decision on the exequatur and related documents – which will necessarily include the translation of the award previously submitted in the exequatur phase if the agreement is not made in Spanish.

20. Are the recognition proceedings in your jurisdiction adversarial or ex parte? What are the different steps of the proceedings?

Chile

In accordance with article 248 of the Chilean Code of Civil Procedure, the party against whom recognition is sought shall be informed of the application and shall have the opportunity to present what it deems appropriate. The Supreme Court may open a brief evidentiary term. Before deciding the matter, the public ministry of the Court (fiscalía judicial) shall be heard.

21. What documentation is required to obtain recognition?

Chile

Regarding recognition, the exclusive competent court is the Supreme Court. For the application to be admissible, pursuant to article IV of the New York Convention and article 35(2) of Law 19.971, the applicant must supply the duly authenticated original award or a duly certified copy thereof, and the original arbitration agreement referred to in article 7 or a duly certified copy thereof.

22. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition? If yes, in what form must the translation be?

Chile

If the award is not made in Spanish (which is, as stated above, the de facto official language of Chile), the party shall supply a duly certified translation thereof into such language, that is to say, a translation made by the Ministry of Foreign Affairs.

23. What are the other practical requirements relating to recognition and enforcement? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Chile

Apart from what has been expressed above, is not possible to comment on other practical requirements without knowing the particularities of the case.

There are no limitations on the language and length of the submissions and of the documentation filed by the parties.  

24. Do courts recognise and enforce partial or interim awards?

Chile

To date, the approach of the Supreme Court on the matter is that only final awards are enforceable under the NY Convention regime.

25. What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from those provided under article V of the New York Convention?

Chile

Pursuant to article 36 of Law No. 19.971 (and article V of the NY Convention), recognition or enforcement of an arbitral award may be refused only:

(i) at the request of the party against whom it is invoked, if that party furnishes to the Supreme Court proof that:

• a party to the arbitration agreement was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made;
• the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise unable to present his or her case; or
• the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award that contains decisions on matters submitted to arbitration may be recognised and enforced;
• the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
• the award has 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; or

(ii) if the Supreme Court finds that:

• the subject-matter of the dispute is not capable of settlement by arbitration under the Chilean law; or
• the recognition or enforcement of the award would be contrary to the public policy of Chile.

All the applications for recognition of final awards have been accepted – except one, in which the award had been previously set aside in the seat. This demonstrates that the Supreme Court of Chile has an objectively friendly approach to recognition and enforcement.

26. What is the effect of a decision recognising an arbitral award in your jurisdiction?

Chile

Once recognised by the Supreme Court, the enforcement of a foreign arbitral award can be immediately sought before a competent trial court through the enforcement procedure as if it were a national judicial ruling or a domestic arbitral award.

27. What challenges are available against a decision refusing recognition in your jurisdiction?

Chile

There is no possible challenge against such a decision.

28. What are the effects of annulment proceedings at the seat of the arbitration on recognition or enforcement proceedings in your jurisdiction?

Chile

Pursuant to article V of the NY Convention and 36 of Law No 19.971, if there are pending annulment proceedings in the seat, the award has not yet become binding on the parties, and then it may not yet be enforced in Chile. The same effect is applicable if the award has been suspended or the case set aside in the seat.

29. If the courts adjourn the recognition or enforcement proceedings pending annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security?

Chile

Yes, it is so stated in article VI of the NY Convention and article 36(2) of Law No. 19.971.

30. Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an arbitral award is set aside after the decision recognising the award has been issued, what challenges are available?

Chile

Although it is legally possible, according to the limited case law existing on the matter, awards that have been set aside in the seat of the arbitration have not been recognised in Chile.

There have been no cases in which a party seeks to enforce an award partially set aside, or cases in which an arbitral award has been set aside after the decision recognising the award has been issued. Nevertheless, in the latter case, the defendant of the recognition proceedings may then try to object to enforcement in the enforcement proceedings.

31. What is the procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction? If the extrajudicial and judicial documents are drafted in a language other than the official language of your jurisdiction, is it necessary to serve these documents with a translation?

Chile

There are no regulations related to serving extrajudicial documents.

Regarding judicial documents, there are several specific ways of serving, all of them set forth by the Code of Civil Procedure. The most demanding one is the in-person service, which requires the personal delivery of the documents to the recipient. The applicable kind of service will, in general, depend on the legal nature of decisions or judgments to be served.

If there are judicial documents in a foreign language, these have to be translated when submitted – thus the service will include their translation. Nonetheless, only a certain kind of notification includes documents.

32. What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents with a translation in the language of this jurisdiction? Is your jurisdiction a party to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention)? Is your jurisdiction a party to other treaties on the same subject matter?

Chile

Chile is not party to the 1965 Convention on the Hague Service Convention. Nevertheless, Chile is a party to the Inter-American Convention on Letters Rogatory and its Additional Protocol; the Inter-American Convention on the Taking of Evidence Abroad; Agreement on Cooperation and Jurisdictional Assistance in Civil, Commercial, Employment and Administrative Matters Among the Members of States of the Mercosur and the Republic of Bolivia and the Republic of Chile; the Convention on letters rogatory between the governments of Chile and Peru; the agreement on the service of letters rogatory between the governments of Chile and Bolivia; the agreement between the Republic of Chile and the Republic of Argentina on the processing of letters rogatory; and the Convention on letters rogatory and judicial dispatches with Colombia.

In general terms, the sender court shall send the mandate to the Supreme Court, which, through its Central Authority, will send the mandate to the recipient foreign court. Then, after the service has been made, the recipient foreign court will return the mandate to the Chilean Supreme Court, which in turn will send it back to the original sender court. 

In general, letters rogatory and their attached documents must be legalised, drawn up in the language of the issuing authority and accompanied by a translation into the language of the requested authority.

33. Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction? Are there any databases or publicly available registers providing information on award debtors’ interests in other companies?

Chile

There are no specific public registers of an award debtor's assets or his or her interests or shares in companies. 

However, such information may be gathered by consulting some public registers, for example, the competent Real Estate Property Registry, the Motorized Vehicle Registry, and the competent Registry of Commerce (which contains the corporate date of companies). In addition, that information or part of it may be bought to private databases.

34. Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

Chile

No.

35. What kinds of assets can be attached within your jurisdiction?

Chile

All types of assets are attachable except for a brief list of mostly domestic or home-related goods.

36. Are interim measures against assets available in your jurisdiction?

Chile

Yes.

There is no limited list of available interim measures. The most typical are regulated, such as assets attachment or the prohibition from executing contracts regarding specific assets.

37. What is the procedure to apply interim measures against assets in your jurisdiction?

Chile

There is no exclusivity for either courts or arbitral tribunals for granting interim measures, and arbitral tribunals need no court authorisation before applying interim measures. This notwithstanding, in practice applications for any interim measure affecting third parties are in most cases filed before courts. This is so because court-granted interim measures are always enforceable and thus more effective; if interim relief is sought before the commencement of the arbitral proceedings, it must be sought before a court.

Interim proceedings may be ex parte under some circumstances, but they have eventually informed the affected party.

38. What is the procedure for interim measures against immovable property within your jurisdiction?

Chile

There is no specific procedure for interim measures against immovable property. Once granted, the decision shall be communicated to the competent Property Registry, which will express it in the Registry.

39. What is the procedure for interim measures against movable property within your jurisdiction?

Chile

There is no specific procedure for interim measures against immovable property except exceptional cases. For example, regarding the Motorized Vehicles Registry, once granted, the judicial decision will be communicated to the Motorized Vehicles Registry, which will express it in the Registry. Ships and planes are other exceptional cases.

40. What is the procedure for interim measures against intangible property within your jurisdiction?

Chile

There is no specific procedure for interim measures against intangible property.

41. What is the procedure to attach assets in your jurisdiction?

Chile

To attach the debtor's assets, an application must be made to the court or arbitral tribunal indicating the goods to be attached. The court must grant this request to proceed with the attachment.

The attachment shall be deemed to have been made by the actual or symbolic delivery of the assets to the depositary thereof, who can be the debtor him or herself.

A minister of faith shall conduct the seizure and shall draw up a record of it, which shall indicate the place and time at which it was conducted; it shall contain the individual and detailed description of the assets seized and must indicate whether the assistance of the public force was necessary to carry it out. It shall also record any allegation made by a third party claiming to be the owner or possessor of the attached property.

42. What is the procedure for enforcement measures against immovable property within your jurisdiction?

Chile

The procedure for attachment of immovable property consists in the court ordering its attachment and, subsequently, an entry will have to be made in the margin of the property registration in the competent Real Estate Registry.

43. What is the procedure for enforcement measures against movable property within your jurisdiction?

Chile

For the attachment of movable property, the minister of faith will issue an act that shall indicate the kind of the asset, the quality and condition and any other specification necessary for its proper identification, such as brand, factory and serial number, colours and approximate dimensions, as far as possible.

44. What is the procedure for enforcement measures against intangible property within your jurisdiction?

Chile

The only remarkable case are trademarks, which can be attached by registering the attachment in the Trademark Registry before the state entity competent in the matter (INAPI).

45. Are there specific rules applicable to the attachment of assets held by banks? Is it possible to attach in your jurisdiction sums deposited in bank accounts opened in a branch or subsidiary of a foreign bank located in your jurisdiction or abroad? Is it possible to attach in your jurisdiction the bank accounts opened in a branch or subsidiary of a domestic bank located abroad?

Chile

There are no specific rules on the matter.

It is indeed possible to attach sums deposited in bank accounts opened in a branch or subsidiary of a foreign bank located in Chile.

In Chile, to attach bank accounts opened in a branch or subsidiary of a domestic bank located abroad, a letter rogatory would be needed.

46. Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

Chile

No.

47. What is the procedure for service of extrajudicial and judicial documents to a foreign state? Is it necessary to serve extrajudicial and judicial documents with a translation in the language of the foreign state?

Chile

The matter belongs to the domain of international public law. The kind of service will depend on the matter in which the service is to take place whether diplomatic or, for instance, a formal dispute between states before the International Court of Justice. In those cases, the applicable legal source will govern the matter.

48. May a foreign state invoke sovereign immunity (immunity from jurisdiction) to object to the recognition or enforcement of arbitral awards?

Chile

The matter also belongs to the domain of international public law. In Chile, the applicable sources are the Vienna Convention on Diplomatic Relations (1961) and the Vienna Convention on Consular Relations (1963). The answer depends on some distinctions contained in such sources. According to them, the general principle is that states are immune from jurisdiction. However, there are some exceptions, and that immunity is generally waivable.

49. May award creditors apply interim measures against assets owned by a sovereign state?

Chile

The matter is referred to the answers given above and below regarding immunity.

50. Are assets belonging to a foreign state immune from enforcement in your jurisdiction? Are there exceptions to immunity?

Chile

The general principle is also that states are immune from enforcement. However, there are some exceptions, according to international public law.

51. Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? What are the requirements of waiver?

Chile

Immunity from enforcement may be waived in some cases subject to the general applicable international public law provisions.

52. Is it possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state within your jurisdiction?

Chile

There have been important cases abroad on the matter (for instance, Crystallex International Corporation v Bolivarian Republic of Venezuela, United States Court of Appeals for the Third Circuit, 2019). However, Chile has no specific provision on the matter and has never faced such a scenario.