Challenging and Enforcing Arbitration Awards: Chile

1. Must an award take any particular form?

Chile

Chile has a dual system of legal sources for arbitration; in other words, 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 follows the 1985 UNCITRAL Model Law on International Commercial Arbitration.

Pursuant to Article 31 of Law No. 19,971, the award must satisfy the following requirements regarding form:

• the award must 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 is 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.

Domestic commercial arbitration is regulated by Articles 628 to 644 of the Code of Civil Procedure.

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.

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).

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. 

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.

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 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.

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.

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.

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, 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.

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.

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.

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.

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.

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.

17. 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 has been a contracting state to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) since 1975. Chile is also a party to:

• the Pan-American Convention on Private International Law (Bustamante Code) since 1934; 
• the Inter-American Convention on International Commercial Arbitration since 1976; and
• the Convention on the Settlement of Investment Disputes between States and Nationals of Other States since 1992.

In addition, recognition and enforcement of foreign arbitral awards are governed by Law No. 19,971, which in turn adopts the New York Convention regime. 

The purely procedural rules for recognition and enforcement themselves are set forth by the Code of Civil Procedure. 

18. 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 has been a contracting state to the New York Convention since 1975, with no reservation under Article I(3) thereof.

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. 

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.

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.

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.

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.

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).

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.

26. 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 regime of the New York Convention.

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.

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.

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.

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.

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

Chile

There is no possible challenge against such a decision.

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.

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.

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.

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.

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.

37. 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, this type of information may be gathered by consulting some public registers, for example, the competent Real Estate Property Registry, the Motorised Vehicle Registry and the competent Registry of Commerce (which contains the corporate data of companies). In addition, that information or part of it may be bought for inclusion in private databases.

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

Chile

No.

39. 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.

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.

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.

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.

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.

44. 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.

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.

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.

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.

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.

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.

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.

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

Chile

No.

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.

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.

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

Chile

The general principle is that states are immune from jurisdiction and enforcement; however, exceptions apply.

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.

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.

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.

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.