Applicable procedural law for recourse against an award (other than applications for setting aside)
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 of receiving the award, unless another period has been agreed by the parties. The term ‘correction’ refers to any calculation, clerical or typographical error or any other mistake of a similar nature.
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 types described above 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 30 days of receiving the award, to make an additional award on claims that were not covered by the original award. If the arbitral tribunal deems the request justified, the additional award shall be issued within 60 days of receipt of the request.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
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 No. 19,971 establishes application for setting aside as the exclusive recourse against arbitral awards. Appeals are available only in domestic arbitration.
The main differences between those methods of recourse are that setting aside seeks to annul the award and 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 or legal grounds (i.e., a merits review).
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
Applicable procedural law for setting aside of arbitral awards
4. Is there a time limit for applying for the setting aside of an arbitral award?
Chile
Under Article 34 of Law No. 19,971, the setting-aside application must be made within three months of receipt of the award – whether it be an original, corrected or interpreted award.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
5. What kind of arbitral decision can be set aside in your jurisdiction? What are the criteria to distinguish between arbitral awards and procedural orders in your jurisdiction? Can courts set aside partial or interim awards?
Chile
Arbitral awards formally decide matters of substance in issue between the parties, while procedural orders refer to matters concerning the way arbitration is to proceed.
Only arbitral awards can be set aside in Chile. Although, in most cases, setting-aside applications target final awards, there are no legal rules excluding partial or interim awards from the scope of this recourse under Article 34 of Law No. 19,971.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
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.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
7. What documentation is required when applying for the setting aside of an arbitral award?
Chile
Law No. 19,971 has no provisions on this matter; nevertheless, because the setting-aside application must be filed before the competent court of appeal, the applicant must fulfil all the legal requirements of any written submission before the judiciary. The applicant must also attach a certified copy of the arbitral award.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
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 must be made 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.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
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 the language of the submissions, although Chile technically lacks an official language, Spanish works as the de facto official language; therefore, in practice, any submission in a language other than Spanish will have no effect.
There are no limitations regarding the length of the submission.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
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, what are the different steps of the proceedings, and what are the criteria to be met?
Chile
According to Article 36 of Law No. 19,971, if the setting-aside proceeding is pending, the court where recognition of enforcement is sought may adjourn its decision. This court is the competent court over an application to stay; therefore, setting-aside proceedings may have suspensive effect.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
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;
- the agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under Chilean law;
- 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;
- 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 the 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 the 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 Law No. 19,971; or
- the court finds that:
- the subject matter of the dispute cannot be settled by arbitration under Chilean law; or
- the award conflicts with Chilean public policy.
To date, no award has been set aside in Chile. This shows that Chilean courts have a strict approach on the matter.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
13. When assessing the grounds for setting aside, may the judge conduct a full review and reconsider factual or legal findings from the arbitral tribunal in the award? Is the judge bound by the tribunal’s findings? If not, what degree of deference will the judge give to the tribunal’s findings?
Chile
According to Article 34 of Law No. 19,971, the competent court of appeal is bound by the arbitral tribunal’s findings on any legal and factual matter except those that it is called to decide on.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
14. Is it possible for an applicant in setting-aside proceedings to be considered to have waived its right to invoke a particular ground for setting aside? Under what conditions?
Chile
Both the setting-aside application and the grounds for setting aside are considered matters of public policy and, therefore, are not waivable.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
15. What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges or appeals 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, regarding an award that 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 submitted to arbitration, 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.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
16. Will courts take into consideration decisions rendered in relation to the same arbitral award in other jurisdictions or give effect to them?
Chile
According to existing Chilean case law on the matter, awards that have been set aside have not been recognised and enforced in Chile.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
Recognition proceedings
19. 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 of it becoming legally final and definitive.
Some judicial decisions have stated that the term begins on recognition of the award through exequatur; nevertheless, the most conservative approach is considering the date of the award itself as the starting date of the aforementioned three-year term.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
20. 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 are first recognised and then enforced. The recognition phase is called exequatur, a short proceeding before the Supreme Court. Once the exequatur phase has been concluded successfully, the award will be considered as if it were a final and binding national judicial decision; as such, it will be enforceable through the enforcement procedure before the competent trial court.
Domestic awards, on the other hand, do not require recognition and may be directly enforced by either the arbitral tribunal itself (albeit without imperium) or by the competent trial court through the enforcement procedure.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
21. 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, the exclusive competent court is the Supreme Court, and there is no need to identify assets in Chile. For the application to be admissible, pursuant to Article IV of the New York Convention and Article 35(2) of Law No. 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 of Law No. 19,971 or a duly certified copy thereof.
If either the award or the agreement is not in Spanish, the party shall supply a duly certified translation thereof into Spanish (i.e., 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. In the absence of an agreement between the parties in this regard, in general, the competent trial court will be the one connected with the domicile of the debtor. For the application to be admissible, the applicant must supply the duly authenticated original award, plus a favourable decision on the exequatur and related documents, which must include the translation of the award previously submitted in the exequatur phase if the agreement is not made in Spanish.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
22. 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 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 evidential term. Before deciding the matter, the public ministry of the Court shall be heard.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
23. 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 No. 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 of Law No. 19,971or a duly certified copy thereof.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
24. 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 (the de facto official language of Chile), the party shall supply a duly certified translation thereof into Spanish (i.e., a translation made by the Ministry of Foreign Affairs).
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
25. 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
The specificities of other practical requirements depend on the particularities of the case.
There are no limitations on the language and length of the submissions or of the documentation filed by the parties.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
27. What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from the ones provided under Article V of the New York Convention?
Chile
Article V of the New York Convention and Article 36 of Law No. 19,971 are fully applicable. Accordingly, recognition or enforcement of an arbitral award may be refused only:
- 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;
- the 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;
- 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, the 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, in the absence of such an agreement, was not in accordance with the law of the country where the arbitration took place;
- 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
- if the Supreme Court finds that:
- the subject matter of the dispute cannot be settled by arbitration under Chilean law; or
- recognition or enforcement of the award would be contrary to Chilean public policy.
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 has an objectively friendly approach to recognition and enforcement.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
28. When assessing the grounds for refusing recognition, may the recognition judge conduct a full review and reconsider factual or legal findings from the arbitral tribunal in the award? Is the judge bound by the tribunal’s findings? If not, what degree of deference will the judge give to the tribunal’s findings?
Chile
According to Article 36 of Law No. 19,971, the Supreme Court is bound by the arbitral tribunal’s findings on any legal and factual matter except those that it is called to decide on.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
29. Is it possible for a party to be considered to have waived its right to invoke a particular ground for refusing recognition of an arbitral award?
Chile
Yes, depending on the particular ground invoked and the relevant circumstances; however, no grounds regarding public policy issues are waivable.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
30. 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.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
32. 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 New York Convention and Article 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 it may not yet be enforced in Chile. The same effect is applicable if the award has been suspended or the case has been set aside at the seat.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
33. 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, as stated in Article VI of the New York Convention and Article 36(2) of Law No. 19,971.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
34. 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 that has been 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.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
Service
35. 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 together with a translation? When is a document considered to be served to the opposite party?
Chile
There are no regulations on the service of extrajudicial documents.
Regarding judicial documents, there are several specific ways of serving them, all of which are set forth by the Code of Civil Procedure. The most demanding method is in-person service, which requires personal delivery of the documents to the recipient. In general, the applicable kind of service depends on the legal nature of the decisions or judgments to be served.
If there are judicial documents in a foreign language, these must be translated when submitted; therefore, the service will include their translations. Nonetheless, only a certain kind of notification includes documents.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
36. What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents together 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 (the Hague Service Convention)? Is your jurisdiction a party to other treaties on the same subject matter? When is a document considered to be served to the opposite party?
Chile
Chile is not a party to the Hague Service Convention but 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;
- the 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 will send the mandate to the recipient foreign court. 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.
A document is considered to be served to the opposite party when the service has been performed in accordance with the relevant procedures in the opposite party’s country.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
Enforcement proceedings
40. Are interim measures against assets available in your jurisdiction? Is it possible to apply for interim measures under an arbitral award before requesting recognition? Under what conditions?
Chile
Interim measures against assets are available in Chile. There is no fixed list of available interim measures. The most typical are still regulated, such as attachment of assets or prohibition from executing contracts regarding specific assets.
Although there are no legal provisions on that specific hypothetical, it is possible to apply for interim measures under an arbitral award before requesting recognition, pursuant to the general civil procedural rules on interim measures.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
41. 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 do not need court authorisation before applying interim measures. This notwithstanding, in practice, applications for any interim measure affecting third parties are, in most cases, filed before the courts. This is so because court-granted interim measures are always enforceable and, therefore, more effective. If interim relief is sought before the commencement of the arbitral proceeding, it must be sought before a court.
Interim proceedings may be ex parte under some circumstances, but the affected party is eventually informed.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
42. 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 Register.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
43. What is the procedure for interim measures against movable property within your jurisdiction?
Chile
There is no specific procedure for interim measures against movable property except exceptional cases. For example, regarding motorised vehicles, once interim measures are granted, the decision will be communicated to the Motorised Vehicles Registry, which will express it in the Register. Ships and planes are other exceptional cases.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
45. What is the procedure to attach assets in your jurisdiction? Who are the stakeholders in the process?
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 judicial receiver conducts the seizure and draws up a record of it, indicating the time and place at which it was conducted. The record contains individual and detailed descriptions of the assets seized and must indicate whether the assistance of the police force was necessary to carry out the seizure. It also records any allegation made by a third party claiming to be the owner or possessor of the attached property.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
46. What is the procedure for enforcement measures against immovable property within your jurisdiction?
Chile
The procedure for attachment of immovable property comprises the court ordering its attachment. Subsequently, an entry will be made in the margin of the property registration in the competent Real Estate Registry.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
47. What is the procedure for enforcement measures against movable property within your jurisdiction?
Chile
For the attachment of movable property, the judicial receiver issues an act that indicates the kind of asset, its 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.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
48. What is the procedure for enforcement measures against intangible property within your jurisdiction?
Chile
The only relevant property is trademarks, which can be attached by registering the attachment with the Trademark Registry before the National Institute of Industrial Property.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
49. 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 this matter. It is possible to attach sums deposited in bank accounts opened in a branch or subsidiary of a foreign bank located in Chile.
For attachment in Chile of bank accounts opened in a branch or subsidiary of a domestic bank located abroad, a letter rogatory is needed.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
50. May a creditor of an award rendered against a private debtor attach assets held by another person on the grounds of piercing the corporate veil or alter ego? What are the criteria, and how may a party demonstrate that they are met?
Chile
Piercing the corporate veil or alter ego doctrines have barely been adopted in civil or commercial disputes in Chile, even less so in judicial proceedings, where respect of the individuality of legal entities is deeply embedded; therefore, the chance of success of such an application is extremely low.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
Recognition and enforcement against foreign states
52. What is the procedure for service of extrajudicial and judicial documents to a foreign state? Should they be served through diplomatic channels? Is it necessary to serve extrajudicial and judicial documents together with a translation in the language of the foreign state? When is a document considered to be served to a foreign state?
Chile
The matter is in 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 law will govern the matter.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
53. May a foreign state invoke sovereign immunity (immunity from jurisdiction) to object to the recognition or enforcement of arbitral awards?
Chile
This matter is in 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 those sources, according to which the general principle is that states are immune from jurisdiction; however, there are some exceptions for which that immunity is generally waivable.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
55. Are assets belonging to a foreign state immune from enforcement in your jurisdiction? Which classes of assets belonging to states are immune from enforcement as a matter of principle? Are there exceptions to immunity? How can it be proven whether an asset is immune from enforcement? Provide practical examples of assets belonging to states that were successfully attached in your jurisdiction.
Chile
This matter is regulated in the United Nations Convention on Jurisdictional Immunities of States and Their Property, immunity from enforcement being the general principle; however, some exceptions are set forth by international public law.
Article 21 of the Convention establishes certain classes of assets belonging to states that are immune from enforcement as a matter of principle, namely:
(a) property, including any bank account, which is used or intended for use in the performance of the functions of the diplomatic mission of the State or its consular posts, special missions, missions to international organizations or delegations to organs of international organizations or to international conferences;
(b) property of a military character or used or intended for use in the performance of military functions;
(c) property of the central bank or other monetary authority of the State;;
(d) property forming part of the cultural heritage of the State or part of its archives and not placed or intended to be placed on sale;
(e) property forming part of an exhibition of objects of scientific, cultural or historical interest and not placed or intended to be placed on sale.
Exceptions to immunity are regulated in Articles 18 and 19 of the Convention and comprise pre- and post-judgment measures of constraint under certain circumstances.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
56. 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 provisions of the applicable international public law.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
57. 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? What are the criteria, and how may a party demonstrate that they are met? Provide practical examples of assets held by alter egos that were successfully attached by a state’s creditor in your jurisdictions.
Chile
There have been important cases abroad on the matter (e.g., Crystallex International Corporation v. Bolivarian Republic of Venezuela, US Court of Appeals for the Third Circuit, 2019); however, Chile has no specific provisions on the matter and has never been faced with such a scenario.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora
58. May property belonging to persons subject to national or international sanctions be attached? Under what conditions? Is there a specific procedure?
Chile
Yes. For example, under Article 38 of the Anti-Money Laundering Act (Law No. 19,913), the Financial Analysis Unit, on receipt of information regarding a potential transaction by sanctioned persons or entities, must inform the Santiago Court of Appeals for it to adopt any necessary measure to avoid the use, profit or transfer of any goods or money, with no prior notification to the affected person or entity, for a given (renewable) period.
Answer contributed by
Francesco Campora Gatica and Juan Pablo Letelier Ballocchi
Loy Letelier Campora