Public & Administrative Law 2025 Comparisons

Judicial review in Chile is characterised by fragmentation and specialisation. Each public body generally operates under its own judicial review framework, with subsidiary remedies only applying in the absence of specific provisions. While there is discussion about establishing an administrative tribunals system it remains ongoing.

Judicial review of administrative decisions in Chile primarily falls under the jurisdiction of ordinary courts, which handle most challenges against government actions. Some areas, such as environmental law and public procurement, have specialised tribunals. However, in general, ordinary courts are resorted to. The Office of the Comptroller General of the Republic also functions as an administrative body and individuals can file complaints against government actions to it.

Susceptibility to challenge is primarily determined by the nature of the decision or action rather than the status of the defendant.

The most common mechanism for challenging the legality of an administrative action is the claim of illegality (reclamo de ilegalidad), which focuses on whether an administrative decision objectively complies with the legal framework. This type of challenge evaluates the decision itself rather than the characteristics of the authority issuing it.

However, there is also a constitutional remedy known as recurso de protección, which safeguards fundamental rights. Unlike the claim of illegality, this action considers the subjective circumstances of the individual affected, as its primary aim is to provide relief in cases where constitutional rights are violated.

The judicial review system is primarily structured around the nature of the decision being challenged, with limited exceptions, such as recurso de protección, where the individual's circumstances may also be a determining factor.

Primary legislation can be challenged before the Constitutional Court on constitutional grounds. There are two main mechanisms for constitutional review of laws.

Preventive Control

This review takes place before a law is promulgated. In certain cases, such as with organic constitutional laws, the Constitutional Court conducts this review ex officio. In other cases, a group of parliamentarians may request preventive control for various types of legislation. This mechanism ensures that laws comply with the Constitution before they take effect, preventing potential conflicts in advance.

Ex Post Control (Inapplicability Remedy)

This mechanism allows a law to be challenged after it has come into effect, but only in a specific case. If the Constitutional Court deems a provision unconstitutional in a particular case, it rules that the provision cannot be enforced in that instance. However, the statutory provision itself remains valid and enforceable in other cases.

These mechanisms uphold constitutional supremacy by ensuring that laws conform to the Constitution, either before their enactment or when their application results in unconstitutional outcomes in specific cases.

It is possible to challenge secondary legislation on two main grounds.

Unconstitutionality

This only applies to supreme decrees issued by the President of the Republic. Constitutional review of these decrees can be initiated by members of Congress, who may bring a case before the Constitutional Court. Additionally, the Comptroller General of the Republic can conduct ex officio constitutional review as part of its oversight duties.

Illegality

This can be challenged through various legal mechanisms and applies to all types of secondary legislation. Citizens can exercise legality control through actions such as the constitutional protection writ (recurso de protección) and other specialised legality actions.

These mechanisms ensure that secondary legislation complies with both the Constitution and the legal framework, providing oversight at both institutional and individual levels.

Government decisions that only affect one person can be challenged on grounds of illegality through different legal actions. There are specific remedies depending on the nature of the violation.

Recurso de Protección

If an administrative decision violates fundamental rights, affected individuals can file for this fast-track constitutional writ, seeking urgent relief.

Reclamo de Ilegalidad

In contrast, when an administrative decision is ultra vires the claimant can seek relief before the judiciary, without violating fundamental rights.

These mechanisms ensure that even government decisions that only affect one person can be subject to legal oversight.

In Chile, private law agreements can be challenged before the Public Procurement Court (Tribunal de Contratación Pública), which is a specialised tribunal for public procurement disputes.

The jurisdiction of the Public Procurement Court was initially limited to the pre-contract stage and primarily reviewing the legality of public tender procedures. However, a recent legal reform has expanded its scope to cover disputes arising throughout the execution of contracts.

As a result, public procurement in Chile is now subject to comprehensive legality control by the Public Procurement Court, ensuring oversight at both the tendering and contract execution stages.

It is possible to challenge a decision or act that does not have legal effect, such as advice or guidance. Any administrative act that lacks a legal basis can be challenged. The principle of legality dictates that no authority may act without express powers granted by law. Administrative decisions can therefore always be contested on grounds of illegality, regardless of whether they are binding or merely advisory.

The State may engage in economic activities if authorised to do so by law. To ensure compliance with this requirement, the Constitution provides a special remedy known as the economic protection writ (recurso de amparo económico).

Once this condition is met, the State’s economic activity is subject to the same legal framework as private actors. The possibilities for challenging this activity depend on the provisions of private law.

The Constitution guarantees minimum rights for individuals subject to legal proceedings, making it difficult to completely oust judicial review in administrative matters. Similarly, the administration cannot validly bind itself to refrain from defending the public interest, as public powers cannot be waived.

Even in arbitration involving public law matters, this is generally only permitted when expressly authorised by law, as is the case with disputes arising from public concession contracts.

Claimants bringing administrative law challenges before the courts must generally demonstrate that they were directly affected by the State's decision. This narrow legal standing requirement contrasts with the Administrative Procedure Act of 2004, which states a broader range of parties who may be affected by State actions, even if less directly, and allows them to challenge those actions before administrative bodies.

Legal standing is therefore stricter in courts but more lenient in administrative contexts.

However, there are situations where even individuals directly affected cannot contest administrative decisions. For example, under the current merger control regime, litigation against a merger authorisation is not permitted. This applies to both competitors and consumers.

The courts are generally open to actions by individuals who have been directly affected by State decisions. Therefore, in most cases, charities and NGOs cannot demonstrate that they were directly affected by a government decision and are subsequently unable to bring challenges before the courts.

However, there are exceptions where legal standing is broader, allowing entities that are not directly affected to pursue actions in the courts. For example, local courts have determined that charities and NGOs explicitly established to protect the environment do have standing in related disputes.

Under Chilean law, the Civil Procedure Code of 1902 regulates the procedure for joinder in administrative matters, consolidating claims or parties into a single case. This legislation permits the combination of different claims into one, following the general rules applicable to civil and commercial disputes.

To seek the unification of claims in a single suit, a writ is sufficient. The party requesting joinder must demonstrate the following.

• There are two or more ongoing cases.
• The cases are subject to the same type of procedure.
• The proceedings in the ongoing cases are at analogous stages.
• The actions brought in one case are identical to those brought in another.
• Both sets of actions arise directly and immediately from the same facts.

If joinder of claims is denied (which is often the case), local courts may still allow for joint oral arguments, even if the cases are not formally unified as one.

Third parties can join proceedings already initiated by others to contest the same government decision but must demonstrate the State's decision has caused them direct harm. Their legal standing is also governed by the Civil Procedure Code of 1902, which defines their status in judicial matters. Individuals who did not initiate the proceedings can participate in disputes involving the government as:

• independent third parties;
• supporting third parties (by backing either the claimant or the defendant); or
• opposing third parties (holding a position contrary to that of the claimant or defendant).

Individuals typically join ongoing proceedings as independent third parties for strategic reasons. The Supreme Court has clarified that supporting third parties are bound by the procedural actions of the claimant or defendant. If the primary party does not appeal, the supporting third party cannot appeal either. In contrast, independent third parties have procedural independence, allowing them to act autonomously throughout the proceedings.

An action against the executive branch of the Chilean government is governed by the Civil Procedure Code of 1902, which lacks the modern procedural rules found in common law countries. As a result, discovery, as broadly allowed in jurisdictions such as the United States, England and Wales, or Australia, is generally not available under Chilean law.

However, the Chilean Civil Procedure Code does permit claimants to request specific evidence from future defendants to prepare for trial. This may include affidavits regarding the opposing party's capacity or the production of documents relevant to the litigation. Additionally, parties can request the submission of specific evidence that is at risk of disappearing, such as witness testimony and expert reports.

In both cases, the requesting party must detail their future claims and provide a brief explanation of the grounds for the request, along with an explanation of the necessity of the evidence for initiating proceedings. Courts may only grant requests for evidence explicitly outlined in the Chilean Civil Procedure Code.

It is also important to note that failing to comply with the court's order does not constitute contempt of court. The consequences for a defendant who fails to abide by these pre-trial evidence requests are minimal. Specifically, the non-compliant party cannot use any undisclosed documents as evidence in the case. In other words, there is no motion to compel discovery for the requesting party.

Unfortunately, there are no specific provisions or rules in place to ensure that courts have access to all of the relevant information in a case. Chile does not have a discovery process, which is a pre-trial procedure that allows each party to obtain evidence from others through civil procedure law. However, the Transparency Act of 2008 provides claimants with a valuable tool for gathering evidence. By making a single request under this legislation, claimants can obtain information from the State within 20 business days, including emails from government officials and relevant documents.

Conflicts arise when there is a need to obtain information from third parties, as there is no mechanism for issuing subpoenas in Chile. This limitation can hinder the ability to collect the evidence required for a case.

The Chilean Civil Procedure Code of 1902 does not generally provide for live evidence or the cross-examination of witnesses. This limitation applies equally to administrative litigation as well as civil and commercial disputes before the courts. Cross-examination is restricted, as witnesses do not testify directly before the judge but instead in front of an auxiliary of the administration of justice, who reads written questions.

However, live evidence and cross-examination are permitted in specific areas where more recent legislation has been enacted. For instance, specific trials involving the State, including antitrust dispute resolution, environmental damages and criminal litigation, allow for live evidence and cross-examination of witnesses.

There is generally no formal requirement to complete preliminary steps such as pre-action correspondence before issuing a challenge to an administrative decision in Chile. However, in some cases, legislation may oblige the claimant to present the dispute to the administrative body before approaching the judiciary. This ensures that the administrative process has the opportunity to address the issue before judicial involvement.

There is a requirement to exhaust any context specific appeals before an administrative law challenge can be made. There is typically a requirement to exhaust internal appeals before initiating an administrative law challenge. This means that individuals must pursue all available remedies within the administrative system related to the decision being contested first, before seeking judicial review in the courts.

Chile lacks unified legislation governing all claims against the government, resulting in more than 100 rules that provide claimants with various writs to contest State decisions before the judiciary. As a result, procedural rules, including time limits, vary significantly from case to case, and there is no single time limit for bringing a challenge.

For instance, procurement disputes must be initiated within ten business days, while environmental claims seeking to annul administrative decisions have a deadline of 15 business days. In contrast, claims for environmental damages must be filed within five years while trials against municipal authorities must be commenced within 30 business days.

In Chile, there is a notable absence of a merits review before initiating a new trial, meaning that courts do not evaluate the substance or merits of a claim before proceeding with it. This lack of an initial merits assessment can lead to the acceptance of cases that may lack sufficient legal grounding or evidence, thereby burdening the judicial system with disputes that may not warrant trial. Consequently, parties may engage in litigation without a preliminary evaluation of the validity of their claims, resulting in inefficiencies and delays within the court process.

Legal arguments are presented early on in the proceedings. The dispute with the State begins with a writ that outlines the claimant’s legal arguments. In contrast, the submission of evidence is not always mandatory. For instance, in some proceedings, the judiciary allows a voluntary phase for claimants to present their evidence, such as in cases against the Superintendency of Electricity and Fuels. Additionally, evidence is severely limited in environmental claims where the claimant seeks to annul administrative decisions.

Chilean procedural law does not include a merits review in either private law conflicts or administrative disputes. Once a public law claim is issued, the process can proceed if the writ is accompanied by a power of attorney, is filed within the appropriate timeframe and the claimant has legal standing. In certain cases, legislation may require the claimant to deposit a sum of money after contesting a fine, as is the case with the Superintendency of Electricity and Fuels (although this provision has been deemed unconstitutional in many other sectors). Additionally, laws that require contesting an administrative decision with its issuer can limit access to the judiciary, as seen in conflicts arising against municipalities.

There are generally no express provisions in Chilean law for expediting a claim in urgent situations. The legal framework does not typically include mechanisms specifically designed to accelerate the processing of cases based on urgency. While courts may have some discretion to prioritise certain cases, particularly cases involving immediate threats to rights, this is not a standardised or formalised process. In most instances therefore, the progression of claims through the legal system is governed by regular timeframes rather than specific expedited procedures.

Courts are prohibited from examining the merits of an administrative decision. Their role is instead to assess whether the proper procedures were followed in the making of the decision.

Chile has a written Constitution and it is possible to challenge an administrative decision because it is inconsistent with the Constitution. This type of challenge requires a writ to be filed with the Constitutional Court, demonstrating that, in a specific case, a legal provision produces an unconstitutional effect due to the unique circumstances involved. The filing of this writ also pauses the primary trial before the courts. Notably, the claimant, the defendant and the judge all have legal standing to file for this writ.

It is possible to bring a challenge to a government decision on the basis that the decision-maker did not follow the relevant procedure for that decision. Challenging a government decision because the administrative decision-maker did not adhere to the relevant procedural requirements is the most common form of public law litigation in Chile. This is not only possible but is also one of the most effective grounds for a trial in public law litigation.

It is possible to challenge a government decision on the basis that the administrative decision-maker made an error of fact. However, trials based on these grounds tend to be less effective than those based on procedural requirements. Some proceedings lack a proper evidence phase, making it difficult for the claimant to demonstrate the existence of an error of fact. With the exception of gross mistakes, where the decision-maker’s error is evident, this basis does not provide strong grounds for claims.

In highly technical matters, such as trials against administrative agencies like the Superintendency of Electricity and Fuels, a case is unlikely to be won solely on the basis of factual errors. In contrast, claims based on factual errors tend to be stronger before specialised courts, such as those handling environmental and antitrust dispute resolutions. These forums often possess the expertise necessary to consider and evaluate factual errors than general courts more effectively.

It is possible to bring a challenge because the decision-maker has abdicated or fettered their discretion. Gross omissions are also typically subject to litigation. In cases where the decision-maker has wholly abdicated their discretion, individuals may seek remedy through a constitutional writ.

Unless decision-maker bias can be labelled as a factual error or unequal treatment, the efficacy of such a claim remains weak.

Unequal treatment is a valid basis for contesting administrative decisions. However, the burden of proof is elevated in these cases. The claimant must demonstrate that different treatment has been accorded to individuals in similar circumstances, thereby highlighting the inconsistency in the decision-making process.

Chile is not a signatory to the European Convention on Human Rights and it is not possible to bring a claim on human rights grounds as a result. However, Chile is a party to the American Convention on Human Rights, also known as the Pact of San José, a regional human rights treaty specific to the Americas. The American Convention on Human Rights establishes similar protections for human rights and fundamental freedoms as the European Convention on Human Rights. The claim can be initiated when individuals have exhausted all domestic remedies, meaning they have pursued all available legal avenues within Chile's national legal system to address the violation.

This includes appealing to administrative bodies or courts to challenge the State’s actions. After exhausting these remedies without satisfactory resolution, individuals may seek redress at the international level, such as by submitting a petition to the Inter-American Commission on Human Rights. Claims can encompass a wide range of human rights violations, including unlawful detention, torture, discrimination and violations of freedoms such as expression, assembly and association.

Proportionality provides solicitors with a useful tool for contesting administrative decisions. This argument involves comparing the actual occurrence in a specific case with another circumstance, whether ideal or factual. However, the burden of proof is elevated in these cases. The claimant must empirically demonstrate that different treatment has been accorded to individuals in similar circumstances, establishing a lack of proportionality in the decision-making process.

There are no additional grounds of challenge.

Under Chilean public law, certain categories of decisions are exempt from judicial review. These generally include the following.

Political Decisions

Decisions that fall within the realm of political discretion, such as those made by the President of the Republic are typically not subject to judicial review. This includes decisions related to foreign policy, national defence and other purely political matters.

Acts of Parliament

Legislative acts, once passed, cannot generally be challenged in courts, although they can be reviewed for constitutionality by the Constitutional Council before they are enacted. Notably, a tort of legislative harms refers to the liability arising from the enactment of a law that causes injury or damage to individuals or entities, typically when the law is deemed unconstitutional or is misapplied in a manner that violates protected rights. As in the French legal system, which primarily allows for challenges to administrative actions, individuals can seek compensation for damages caused by a legislative act through the concept of no-fault liability under the framework of state liability.

The defendant is typically required to explain its grounds of defence at the initial stages of the proceedings, particularly after the claimant has submitted their claim. This occurs when the court seeks to ascertain the positions of both parties, often in response to the writ filed by the claimant.

Standard or typical defences in Chilean public law cases can include:

• asserting that the administrative decision in question was lawful;
• arguing that the claimant lacks standing to bring the claim; or
• claiming that the decision-maker acted within their discretionary authority.

Additionally, defendants may challenge the procedural validity of the claimant's arguments or assert that the case is inadmissible on various legal grounds. Defences can also draw on constitutional principles, procedural missteps and factual inaccuracies presented by the claimant.

It is possible to apply for interim relief under Chilean public law and it is commonly sought by litigators through a well-known constitutional writ called recurso de protección. In these cases, the court can issue injunctions to provide immediate protection of constitutional rights while the primary legal matter is being resolved. This form of interim relief is particularly effective in urgent situations where prompt judicial intervention is necessary to prevent harm or safeguard individual rights from infringement by state actions or public authorities.

It is possible to be awarded damages in an administrative law challenge, as state liability is an established principle in Chilean public law. This means that individuals who have suffered harm due to unlawful administrative actions or decisions can seek compensation for the damage caused. To be awarded damages, the claimant must demonstrate the connection between the wrongful act of the State and the harm suffered, in line with the principles of state liability.

The Constitutional Court in Chile has sole authority to declare legislation unconstitutional. The Court is tasked with reviewing the constitutionality of laws and can invalidate them if they are found to conflict with the Constitution. Other courts may only apply the law as it stands unless it has been declared unconstitutional by the Constitutional Court.

The judiciary can order the government to carry out a specific course of action, provided that the decision in question is not deemed discretionary. In situations where the decision falls under discretionary authority, courts can still require administrative bodies to reconsider the matter, following established legal standards. This means that while the court may not impose a specific action in discretionary cases, it can require a reassessment of the decision.

If an administrative decision is found to be unlawful, the most commonly used remedy is the annulment of the decision. This remedy can be accompanied by an award of damages to the claimant if damages were requested and the claim was proven.

Consequently, there are two potential courses of action following the determination of unlawfulness. If the decision does not involve administrative discretion, judges are permitted to annul the decision and may even substitute their judgment for that of the executive branch. Conversely, if the judges determine that a different decision is necessary, they will send the case file back to the original administrative body for reconsideration of its initial decision in cases involving discretionary matters.

Chilean legislation does not include any specific mechanisms for protecting claimants from excessive litigation costs. The legal framework does not provide safeguards or limits on expenses that could mitigate the financial burden on claimants during the litigation process. As a result, individuals may face significant financial risks when pursuing legal actions, with limited recourse to address concerns about excessive costs associated with their claims.

There are no provisions in the Chilean legal system that recognise public interest costs and the concept of public interest costs is therefore not recognised. In general, Chile follows the "loser pays" principle, meaning that the losing party in litigation is typically responsible for covering the legal expenses of the prevailing party. However, this arrangement is ineffective in practice, as the courts do not enforce or adequately compensate for costs, rendering the principle more of a dead letter. Consequently, there are no special rules for costs in public interest cases and courts do not have the discretion to deviate from the standard "loser pays" arrangements.

Chilean legislation includes provisions aimed at disincentivising improper, unreasonable or negligent acts of legal representatives, which can lead to wasted costs. Specifically, the legal framework allows for the possibility of recovering costs incurred due to this conduct.

However, courts often estimate these costs at a very low rate, which diminishes the effectiveness of these provisions and renders it a dead letter in effect. This limitation can make it challenging for parties to seek adequate redress for the inappropriate actions of their legal representatives.

It is possible to appeal a judgment in a challenge to a government decision. Individuals who are dissatisfied with the ruling can initiate the appeals process, which typically involves contesting the decision before a higher court. This allows for further examination of the case and ensures that any potential errors in the initial ruling can be addressed.

The court to which an appeal can be made depends on the specific matter at hand. Most cases can generally be contested before the Court of Appeals and the Supreme Court subsequently. However, certain issues, such as antitrust matters, are not allowed to be heard by the Court of Appeals as the Supreme Court has exclusive jurisdiction.

Environmental issues were initially also intended to be handled solely by the Supreme Court. However, judicial practice has altered this institutional intention, allowing some environmental matters to be appealed to the Court of Appeals as well.

If the lower court denies the appeal, the Civil Procedure Code of 1902 provides litigators with extraordinary remedies. Specifically, if an appeal is denied, parties can file a recurso de hecho. At the same time, a recurso de falso hecho is available if the appeal is granted when it should have been dismissed. These extraordinary remedies enable litigants to seek further recourse from higher courts, ensuring they have the opportunity to challenge decisions that may have been improperly adjudicated.

In theory, the appeal takes the form of an appeal on legal grounds (or some other standard). This means that the focus is solely on the legal aspects of the original decision, such as whether the law was applied correctly or if proper legal procedures were followed. In this context, the appeal does not involve re-evaluating the facts of the case. It reviews the legal basis of the initial judgment, allowing the appellate court to assess the application of the law without reconsidering the evidence presented in the original trial.