International Arbitration 2024 Comparisons

Given the extensive development of domestic arbitration in Chile, in most cases – both with regard to foreign companies that incorporate companies in Chile and Chilean companies – parties use domestic arbitration rather than international arbitration. As such, domestic arbitration is more widely used than international arbitration, and it is rare for domestic parties to resort to international arbitration in Chile (see 1.3 Arbitral Institutions).

Notwithstanding the foregoing, there has been a tendency in the case of agencies of foreign companies to opt for international arbitration, mostly when the seat of arbitration is Santiago de Chile.

Industries With Increased International Arbitration Activity

In March 2024, the Santiago Arbitration and Mediation Centre (Centro de Arbitraje y Mediación Santiago, or CAM Santiago) presented an annual statistical report on its activities during 2023. According to the report, 18 new requests for international arbitration were submitted to CAM Santiago in 2023. The number of requests in the banking and finance sector increased by 10% compared to 2022, and share purchase agreements were the most important underlying contract, accounting for 27.8% of the total number of requests.

The consultation processes prior to international investment arbitration initiated during 2022–23 have not yet developed into arbitration requests.

Industries With Decreased International Arbitration Activity

The number of international arbitrations in Chile has gradually increased over time. There is not enough information to conclude which industries are experiencing a decrease in international arbitration activity; however, in general, there has not been a decrease in any industry.

By far the most widely used arbitration institution for international arbitration cases in Chile is the International Court for Arbitration of the International Chamber of Commerce. Since 2017, the ICC has had a national committee in Santiago, joining forces with CAM Santiago to administer mediations and arbitrations in Chile under the ICC Rules of Arbitration (the “ICC Rules”).

Furthermore, it should be noted that CAM Santiago administers both domestic and international arbitrations. The CAM Rules for International Arbitration (the “CAM Rules”) have been in force since 1 June 2006.

However, owing to practices adopted by some lawyers, parties in Chile have continued including the domestic arbitration model clause in contracts that qualify as international arbitration under Law No 19,971 on International Commercial Arbitration (ICAL). As a result, during the past few years, CAM Santiago has administered various international arbitrations governed by the ICAL – albeit under its domestic arbitration rules. Notwithstanding the foregoing, the general trend is to conduct arbitration under international arbitration rules.

There have not been any new arbitral institutions established in Chile in 2023–24.

Domestic Arbitration

National courts may hear disputes related to domestic arbitrations in matters involving:

• challenging the award;
• the nomination of the arbitrator(s);
• preliminary relief;
• the production of evidence; and
• the enforcement of the award, etc.

The challenges against arbitral awards rendered by domestic arbitrators are heard by the court of appeal of the place of arbitration and by the Supreme Court. Moreover, the decision of the court of appeal or the second-instance arbitral tribunal “in law” that reviewed the arbitral award by the arbitrator “in law” in the appeal can be set aside on specific grounds by the Supreme Court.

In this regard, in Chile, the waiver of challenges against arbitral awards rendered by domestic arbitrators is allowed and is the general rule. However, for reasons of public policy, there are two challenges that cannot be waived:

• el recurso de queja; and
• el recurso de casación en la forma on the grounds of lack of jurisdiction and ultra petita.

Moreover, whether the parties wish to appoint a single- or multi-member tribunal, if no agreement can be reached on the name(s) of the arbitrator(s), a national court will appoint a single arbitrator by default (Article 232 of the Code of Judicial Organisation (CJO)).

As regards preliminary relief, if the arbitral tribunal has not yet been constituted, parties must request the preliminary relief before a national court (see 6.2 Role of Courts).

Parties can request national courts to order the enforcement of an arbitral award. National courts may also aid domestic arbitrators or parties in the taking of evidence.

International Arbitration

National courts may hear disputes related to international arbitrations in matters involving the following.

• Setting aside the award – according to Article 11 of the ICAL (see 2.1 Governing Legislation), the court that has jurisdiction to hear challenges against the decisions of an arbitral tribunal is the court of appeal of the place of arbitration (see 11.1 Grounds for Appeal). The Supreme Court has no jurisdiction.
• The recognition and enforcement of the award – national tribunals also have jurisdiction to hear cases regarding recognition and enforcement of a foreign arbitral award (see 12.2 Enforcement Procedure).
• The nomination of the arbitrator(s) – the president of the respective court of appeal has jurisdiction to resolve matters related to the jurisdiction of the arbitral tribunal (see 5.3 Circumstances for Court Intervention).
• Jurisdiction of the arbitral tribunal and the impediment to being an arbitrator – the president of the respective court of appeal also has jurisdiction to resolve the nomination of arbitrators (Article 11 of the ICAL) and the impediment to being an arbitrator (Article 14 of the ICAL).
• The challenge or removal of arbitrators – the president of the respective court of appeal has jurisdiction to hear disputes relating to the challenge or removal of arbitrators (see 4.4 Challenge and Removal of Arbitrators).
• Preliminary relief – regarding preliminary reliefs, if the arbitral tribunal has not yet been constituted (see 6.1 Types of Relief), parties must request the preliminary relief before a local court (see 6.2 Role of Courts).
• The production of evidence – the arbitral tribunal and the parties, with previous authorisation of the former, may apply to the local courts for assistance in the taking of evidence (Article 27 of the ICAL).

International commercial arbitration in Chile is ruled by the ICAL, in force since 2004. This law was drafted based on the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”) and has no relevant deviations from it.

As the history of the ICAL shows, the Chilean legislature deemed it necessary to maintain the original law proposed by UNCITRAL as much as possible in order to promote the development of international arbitration in Chile. Therefore, the modifications made to the ICAL in respect of the UNCITRAL Model Law are minimal and specifically related to the jurisdiction of the local courts. In this regard, the intervention of the local courts was limited to specifically regulated cases, such as the appointment of arbitrators on behalf of the parties (Article 11 of the ICAL), challenge (Article 13 of the ICAL), removal (Article 14 of the ICAL), issues of jurisdiction (Article 16 of the ICAL) and the request for annulment (Article 34 of the ICAL).

Domestic arbitration in Chile is ruled by the Code of Civil Procedure (CCP) and the CJO. There have not been significant changes in these rules because domestic arbitration works well in Chile. Although there is pending legislation to reform the CCP, the bill does not include relevant changes to domestic arbitration.

Notwithstanding the foregoing, there have been several attempts to reform the regulation of domestic arbitration. The first came at the beginning of the 1990s, with the introduction of a formalistic bill aimed at maintaining the procedural focus on arbitration instead of granting greater scope to the autonomy of the will of the parties. The bill was not successful and was withdrawn in 2002.

In other efforts to change the domestic arbitration law, there have been discussions at government level since 2013 with a view to presenting a new reform bill that may change the arbitration landscape in Chile, but which has not yet materialised. This is a new and comprehensive draft bill that regulates domestic arbitration activity both in its functional and organic aspects. The most relevant change contained in this bill is that the current dualist system is left behind. Under the current system two models coexist:

• a model for international commercial arbitration, which is flexible and deformalised; and
• a model for domestic arbitration, which is more rigid and formalist.

By making the rules for domestic arbitration and international arbitration more alike, the need for normative coherence will be satisfied, and domestic arbitration will be guided by modern and more flexible principles.

For international arbitration, Article 7(1) of the ICAL (see 2.1 Governing Legislation) determines that an arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. Article 7(2) establishes that the agreement must be in writing. Under this provision, an agreement is considered to be written when it is “contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication [that] provide a record of the agreement, or in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another”.

Chilean law prohibits arbitration for:

• criminal cases;
• minor offences and city ordinances;
• issues related to family law such as child support and requests for the division of marital property;
• disputes between a legally incapacitated person and their legal representative; and
• disputes that must be heard by the judicial prosecutor (fiscal judicial)and therefore affect the public interest (Articles 229–230 of the CJO).

Disputes arising under the Labour Code are also excluded from arbitration, owing to the public policy aspects of labour issues and the prohibition on waiving labour rights. The Labour Code does, however, allow for arbitrations related to the collective bargaining process in the form established by the Labour Code.

Reluctance or Refusal to Enforce Arbitration Clauses

Although not addressed by the Chilean legislation or judiciary to date, Chilean courts might be reluctant to enforce an arbitration clause with regard to self-executing instruments such as securities, cheques or promissory notes. In addition, Chilean courts might refuse to enforce an arbitration clause relating to environmental issues, the registration of IP rights or civil responsibility for violations of antitrust or competition law because such matters are part of Chilean public policy.

However, since 2014, the Network Information Center of Chile (NIC Chile) – an institution dependent on the Universidad de Chile, which is responsible for the registrations of “.cl” domain names that identify Chile on the internet – has been submitting disputes arising from the “.cl” domain to arbitration. In addition, in 2018 the Chilean Institute of Industrial Property (Instituto Nacional de Propiedad Industrial) signed a memorandum with the World International Intellectual Property Organization to promote alternative dispute resolution procedures.

Accordingly, Article 1(5) of the ICAL specifically states that the law does not change the domestic regulations on non-arbitrable matters. Furthermore, the legislative history of the ICAL (see 2.1 Governing Legislation) indicates that matters related to public policy (eg, labour, family or consumer rights) cannot be subject to international arbitration.

The ICAL (see 2.1 Governing Legislation) does not define which law should govern the arbitration agreement. As it is not expressly established, it has been understood that the parties are free to determine the law or laws by which the arbitration agreement shall be governed. In the absence of such a decision, the implicit will of the parties must be sought among the provisions of the agreement when it comes to rights and obligations arising out of such provisions. If this is not possible, the Chilean law – as the law of the host state – shall apply.

In this regard, in one case, the Supreme Court considered only Law No 19,971 as the applicable law to revise an arbitration agreement (Almendra y Miel SA v GLG, Supreme Court, Case No 82,442-2016). In another case, the Supreme Court – when reviewing an arbitration clause in a contract governed by the laws of the state of Minnesota – used the rules of the Chilean Civil Code to interpret it (Medtronic USA Inc v Med Implant y Compañía Limitada, Supreme Court, Case No 9,248-2013).

In general, national courts have been inclined to enforce arbitration agreements (see 5.6 Breach of Arbitration Agreement).

The doctrine of separability of the arbitration clause is expressly acknowledged in the ICAL (see 2.1 Governing Legislation), which – following the UNCITRAL Model Law – states that “an arbitration clause [that] forms part of a contract shall be treated as an agreement independent of the other terms of the contract” for the purposes of establishing the tribunal’s jurisdiction (Article 16(1) of the ICAL).

Therefore, under the ICAL, the invalidity of a contract may not affect the validity of its arbitration clause. This has been recognised by the Santiago Court of Appeal (Tampico Beverages, Inc v Productos Naturales de la Sabana SA Alquería, Santiago Court of Appeal, Case No 6,975-2012).

The ICAL (see 2.1 Governing Legislation) specifically establishes that nationality shall not be a barrier to the appointment of an arbitrator (Article 11(1) of the ICAL). Therefore, unless otherwise agreed by the parties, a person’s nationality will not be an obstacle for them to act as an arbitrator (Article 11(1) of the ICAL).

Although discussions have arisen as to whether arbitrators need to be lawyers under Article 526 of the CJO in the case of international arbitration, part of the doctrine considers that such a conclusion would be erroneous. This can be corroborated by the history of the ICAL: when this discussion was raised, it was noted that there was consensus that – in the field of international commercial arbitration – the parties themselves are called upon to decide the quality of the arbitrator or arbitrators who will hear and resolve a dispute. It was considered that, if the parties decide that the arbitrator should be a lawyer or other professional, the principle of autonomy should be respected. It was also considered that, for disputes related to essentially technical aspects, it may be more appropriate to appoint an engineering arbitrator – a possibility that the law should not limit.

According to national law, judges cannot be appointed as arbitrators (Articles 226 and 317 of the CJO) and – even though this is self-evident – parties to the dispute cannot be appointed as arbitrators in their own case (Article 226 of the CJO).

The ICAL poses no restrictions on who may act as arbitrator. However, given that Articles 226 and 317 of the CJO are considered to relate to public policy, they necessarily act as a limitation on the appointment of arbitrators in international arbitrations that take place in Chile.

Selecting Arbitrators

In international arbitrations with a sole arbitrator, where the parties have not agreed on an appointment procedure and cannot reach agreement on the appointment of the arbitrator, the appointment will be made by the president of the respective court of appeal.

In the case of a three-member tribunal, each party will name a co-arbitrator and the co-arbitrators will together nominate the president. Where the co-arbitrators cannot reach agreement, or where one of the parties fails to name a co-arbitrator, any party may request the president of the respective court of appeal to make the appointment (Article 11(3) of the ICAL).

The president must make the appointment with due regard to “any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account as well the advisability of appointing an arbitrator of a nationality other than those of the parties” (Article 11(5) of the ICAL).

There is no appeal available against the appointment of an arbitrator by the president of the court of appeal.

Multiparty Arbitrations

There are no provisions in international arbitration law for multiparty arbitrations. Parties may choose to incorporate the same arbitration clause in various related contracts or appoint the same arbitrator for related disputes. In multiparty cases under the ICAL, if the president of the court of appeal is called to assist in the appointment of arbitrators, the president may choose to consolidate the various disputes before tribunals of the same composition.

Although there is little – if any – published guidance, there is no reason why the multiparty solutions suggested in Article 10 of the ICC Rules, Article 8 of the LCIA Rules and Article 3(7) of the Rules of the International Centre for Dispute Resolution could not be applied. To a greater extent, Article 14 of the CAM Rules provides that where multiple claimants or respondents cannot agree on the appointment of their respective arbitrator, that arbitrator will be appointed by CAM Santiago.

For sole arbitrator cases, the president of the court of appeal will be entitled to intervene and designate the arbitrator when the parties fail to reach an agreement. This designation mechanism is activated upon party request (see 4.2 Default Procedures). In the case of a three-member tribunal, where the co-arbitrators cannot reach an agreement on the appointment of the president, or where one of the parties fails to name a co-arbitrator, any party may request the president of the respective court of appeal to make the appointment (see 4.2 Default Procedures).

In addition, the president of the court of appeal is also entitled to intervene in the arbitrators’ appointment:

• when one of the parties does not comply with the agreed method; and
• when a third party, including an arbitral institution, does not comply with the rules previously agreed on by the parties for the arbitrators’ appointments (Article 11(4)(a), (b), (c) of the ICAL).

Regarding the limitations, the ICAL provides some guidance as to selecting the arbitrator. However, there is no appeal available against the appointment of an arbitrator by the president of the court of appeal.

Under the ICAL, an arbitrator may be challenged “only if circumstances exist that give rise to justifiable doubts as to [the arbitrator’s] impartiality or independence, or if [the arbitrator] does not possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by [themselves], or in whose appointment [they have]  articipated, only for reasons of which [they become] aware after the appointment has been made” (Article 12(2) of the ICAL).

Unless the challenged arbitrator withdraws or the other party agrees on the challenge, the tribunal will decide on the challenge (Article 13(2) of the ICAL). If the tribunal rejects the challenge, the challenging party may request the president of the respective court of appeal to decide on the challenge within 30 days of receiving notice of the decision of the tribunal.

The decision of the president of the court of appeal is not subject to appeal and the arbitral tribunal may, in the meantime, continue the proceeding and even issue its award (Article 13(3) of the ICAL). Recent Chilean appellate court case law does not show an increase in the number of challenges against arbitrators under the rules of the ICAL.

Parties arbitrating under the CAM Rules must be aware that CAM Santiago will decide on the challenge without having to state the reasons for its decision. However, if the challenge is rejected, Article 13(3) of the ICAL applies and the party that requested the challenge may “appeal” the decision by requesting that the president of the court of appeal decides on the challenge.

The ICAL specifically requires a potential arbitrator to “disclose any circumstances likely to give rise to justifiable doubts as to [their] impartiality or independence” (Article 12(1) of the ICAL) before confirmation and throughout the proceeding. As regards arbitral institutions, the ICC Rules require that a prospective arbitrator sign a statement of acceptance, availability, impartiality and independence in which they must disclose any facts or circumstances that might be of such a nature as to call into question the arbitrator’s independence in the eyes of the parties, as well as any circumstances that could give rise to reasonable doubts as to the arbitrator’s impartiality (Article 12(2) of the ICAL).

For that purpose, the notes to parties and arbitral tribunals on the conduct of arbitration establishes a list of potentially relevant circumstances regarding arbitrators’ independence and impartiality. Furthermore, CAM Santiago does not specifically define conflicts of interest for arbitrators under its rules of international arbitration and has not yet issued a code of ethics for arbitrators under its framework. The CAM Rules do require, however, that a candidate arbitrator sign a written declaration confirming their independence and impartiality in the specific case (Article 11 of the CAM Rules).

To a greater extent, if the arbitrator is Chilean, the Chilean Bar Association – of which membership is optional – has a code of ethics providing guidelines regarding the counsel–client relationship, counsel’s confidentiality duty, and conflict of interest. For arbitrators, it provides restrictions to avoid conflicts of interest and also regulates the determination of arbitration fees.

See 3.2 Arbitrability.

The ICAL recognises the principle of competence-competence, stating in Article 16(1) that the arbitral tribunal may decide on its own jurisdiction, even if exceptions arise concerning the existence or validity of the arbitration agreement.

This recognition of the principle of jurisdiction comes from domestic arbitration. In domestic arbitration law, there is no explicit provision that confirms the competence-competence of an arbitral tribunal. Nonetheless, Chilean courts acknowledge that arbitral tribunals (just like local courts) are entitled to decide issues related to their own jurisdiction. Consequently, where a party commences an arbitral proceeding in apparent breach of an arbitration agreement, the matter shall be submitted to the decision of the arbitral tribunal – given that such tribunal is the authority entitled by law to rule on its own jurisdiction.

Jurisdiction of Arbitral Tribunal

If, as a preliminary matter, the arbitral tribunal declares itself to have jurisdiction (see 5.1 Matters Excluded From Arbitration), either party – within 30 days of receipt of notice of such decision – may request the president of the respective court of appeal to resolve the matter, and the decision of this court will be final. This rule does not apply in cases where the arbitral tribunal, as a preliminary matter, declares that it has no jurisdiction.

In general, appellate courts are reluctant to intervene in jurisdiction matters (see 5.2 Challenges to Jurisdiction).

Negative Rulings on Jurisdiction

The respective court of appeal could address issues of jurisdiction of an international arbitral tribunal if a party asks for an international arbitral award to be set aside. Nonetheless, there are no cases in which a court of appeal has reviewed a negative ruling on jurisdiction by an arbitral tribunal.

In international arbitrations, objections to jurisdiction must be raised in advance of or together with the statement of defence. A plea that the arbitral tribunal exceeds the scope of its authority must be raised as soon as the matter that is allegedly beyond the scope of the tribunal is raised during the arbitral proceedings. In either case, the tribunal may admit a later plea if it considers the delay justified (Article 16(2) of the ICAL).

Once the award is rendered by the arbitral tribunal, parties can challenge the jurisdiction of the arbitral tribunal before the respective court of appeal.

See 11.1 Grounds for Appeal.

In cases where a party commences court proceedings in breach of an international arbitration agreement, the national courts’ approach is to refer parties to arbitration, unless the agreement is null and void, inoperative or incapable of being performed. There is therefore a general reluctance of national courts to allow such proceedings.

There are no specific rules in Chilean domestic or international arbitration law with regard to the effects of the assignment of an agreement that contains an arbitration clause to a third party. Parties to an assignment are therefore well advised to specifically agree that the arbitration clause will also be part of the assignment.

For further details on Chilean law in this regard, please refer to 13.5 Binding of Third Parties.

The ICAL allows parties to request interim measures from the arbitral tribunal as well as from the domestic courts (Article 9 of the ICAL). The Chilean ICAL is based on the UNCITRAL Model Law of 1985, without the 2006 amendments that regulate interim measures and preliminary orders in more detail.

Under Article 17 of the ICAL, unless otherwise agreed by the parties, the arbitral tribunal may – at the request of a party – order such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. Therefore, the interim relief of the arbitral tribunal is binding.

In this regard, it is possible for the arbitrator to order the issuance of a bank guarantee or attachments. The arbitral tribunal may also require the relevant party to provide appropriate security.

Local courts may also grant interim measures while the constitution of the arbitral tribunal is still pending. When the interim relief is granted by a local court, the CCP shall apply (see 6.2 Role of Courts).

Preliminary Relief

If the arbitral tribunal has not yet been constituted (see 6.1 Types of Relief), parties must request the preliminary relief before a national court, while proceeding with the constitution of the arbitral tribunal. Once the preliminary relief has been granted, the party must submit its request for arbitration within ten days (which can be extended to 30 days). At the moment of presenting its claim, the party must also request the continuation of the measure. If it fails to do so, or if the request is rejected, the party that had requested the preliminary relief in the first place will be considered liable for any damages and will be presumed to have acted with malice (Article 280 of the CCP).

The ten-day (or extended 30-day) period for presentation of the request for arbitration may be problematic if the preliminary relief had been issued by a local court, pending the constitution of the arbitral tribunal, as the tribunal may not yet have been constituted during this period. Legal practice has established that, in this case, the continuation of the preliminary relief may be requested before the same court that issued it.

As regards interim relief in aid of foreign-seated arbitrations, the Chilean courts have ruled in favour of its admissibility, affirming the jurisdiction of Chilean local courts to order it based on Article 9 of the ICAL and affirming the non-necessity of exequatur for this type of judicial proceedings. Thus, in Case No 5468-2009 (Western Technology Services International Inc v Cauchos Industriales SA), the Supreme Court – rejecting a request for exequatur from an international arbitral tribunal constituted in Dallas, aimed at guaranteeing the effective compliance with the obligation not to compete that fell on the other party – resolved that “an interim and extendable relief, according to the arbitral tribunal, does not comply with the standard for requesting exequatur, so that it must be filed directly before the ordinary Chilean courts, according to Article 9 of the ICAL”.

Emergency Arbitrators

Emergency arbitrator relief is not provided for in the ICAL. Thus, if the arbitral tribunal has not yet been constituted, the only alternative to the party seeking interim relief is to resort to the ordinary jurisdiction, as stated in Article 9 of the ICAL. In such cases, the interim measure’s requirement will be regulated under the rules of the Chilean CCP.

However, if the parties agree to conduct the arbitration under the ICC Rules, which do mention the figure of the emergency arbitrator, the appointment of an emergency arbitrator will be valid.

The ICAL does not specifically provide for the security for costs. Article 17 of the ICAL allows the arbitral tribunal to order preliminary relief in respect of the subject matter of the dispute (see 6.1 Types of Relief).

However, the wording of Article 17 of the ICAL and the preliminary relief regulation are wide enough to allow for security for costs as a relief, especially considering they refer to an arbitration proceeding and not to a proceeding before a national court. There have been no known cases regarding security for costs.

The procedure is regulated in the ICAL.

The ICAL does not order any particular procedural steps for arbitral proceedings. Nevertheless, the requirement to comply with certain procedural steps required in domestic arbitration in the case of international arbitration – such as the call for conciliation or the need for an order of proof – was discussed before the Santiago Court of Appeals.

This discussion arose in connection with requests for annulment based on the lack of these essential procedural steps requested in domestic arbitration law. It was decided that it was not necessary to comply with these procedural steps in international arbitration and the nullity actions were rejected.

Powers

The arbitral tribunal is empowered to:

• decide on its own jurisdiction (Article 16 of the ICAL);
• order interim measures of protection that it deems necessary with regard to the subject matter of the dispute (Article 17 of the ICAL); and
• conduct the arbitration in the manner it deems appropriate, in the absence of agreement and subject to the law, including determining the admissibility, relevance and value of evidence (Article 19 of the ICAL).

Duties

An arbitrator must:

• disclose all circumstances that may give rise to justifiable doubts about their impartiality or independence and, once appointed and during all arbitral proceedings, promptly disclose such circumstances to the parties (Article 12 of the ICAL); and
• decide the dispute in accordance with the rules of law chosen by the parties as applicable to the merits of the dispute (Article 28 of the ICAL), among other things.

To a greater extent, in the event of failure to act in accordance with their duties, under national criminal law, the arbitrator may be criminally prosecuted for the crime of prevarication (Articles 223–225 of the Criminal Code).

See 4.1 Limits on Selection.

Under Article 19(2) of the ICAL, unless parties can reach an agreement, the arbitral tribunal may direct the arbitration in the way it considers appropriate, having the power to determine the admissibility, relevance and weight of the evidence. However, in international arbitration procedures, parties tend to apply the International Bar Association (IBA Rules) on the Taking of Evidence.

The procedure will depend on the rules applicable to the arbitration – ie, whether the ICC or CAM Rules apply. In the case of the ICC Rules, the arbitral tribunal may:

• decide to not allow requests for document production or to limit the number, length and scope of written submissions and written witness evidence;
• decide the dispute solely on the basis of documents submitted by the parties (Article 3 of the ICC Rules 2021);
• hear witnesses, experts appointed by the parties or any other person;
• summon any party to provide additional evidence; and
• decide the case solely on the documents submitted by the parties, unless any of the parties request a hearing (Article 25 of the ICC Rules 2021).

In the case of the CAM Rules, the parties must attach to their pleadings all documents they deem relevant or refer to the documents or evidence to be submitted at a later date. The tribunal may request a summary of the documents and evidence, request the delivery of additional exhibits and evidence, and also decide whether or not to hold evidentiary hearings (Articles 24–25 of the CAM Rules).

Also, under Article 27 of the ICAL, the arbitral tribunal and the parties may apply to the local courts for assistance in the taking of evidence. The requested local court may execute the request within its jurisdiction and according to its rules on the taking of evidence.

To review the rules of evidence in the case of international arbitration, see 8.1 Collection and Submission of Evidence. These rules are different from the ones that apply to domestic arbitration.

Arbitral tribunals may request that all parties, including third parties, appear to testify. In the event of refusal, the arbitral tribunal will request the assistance of the corresponding national court to carry out the proceeding. The courts of law may entrust this proceeding to the arbitrator, assisted by a minister of faith.

There is no confidentiality rule applicable to international arbitrations and therefore the arbitration file is public. Given the existence of a request for annulment, which is heard by the court of appeal, and given the nature of this request, the court will necessarily have knowledge of the arbitration file, which is eminently public.

If the parties prefer the arbitration not to be public, it will be necessary for them to agree this by means of an express agreement. Only in the case of highly confidential parts of the file will it be necessary to request the itemisation and exclusion of those parts of the file either before or just after the award is rendered, so those sections are not made public.

Furthermore, in the case of the ICC Rules, the arbitration will be public as a general rule. However, upon the request of any party, the arbitral tribunal may make orders concerning the confidentiality of the arbitration proceedings or of any other matters in connection with the arbitration and may take measures for the protection of trade secrets and confidential information (Article 22.3 of the ICC Rules).

Lastly, in the case of international arbitrations subject to CAM Rules, a rule of confidentiality of the award is established, except:

• when the award’s disclosure is necessary for a proceeding to challenge, comply with or enforce the award;
• when the award’s disclosure is required by law or any other judicial authority; or
• when the parties by mutual agreement agree to the award’s non-confidentiality.

Even so, CAM Santiago – while safeguarding the identity of the parties – may publish the awards (Article 33.8 of the CAM Rules).

According to the ICAL, the arbitral award must state the reasons on which it is based, unless the parties have agreed otherwise. The ICAL does not set a time limit for rendering the award.

The limits are set by the type of arbitrator involved and public policy. If it is an arbitrator “in law”, they must decide in accordance with the law – according to which, the arbitrator is empowered to grant effective damage, loss of profit and moral damages to a party in their award. The latter applies even in cases of breach of contract, as the national case law has evolved in this matter during the past few decades.

Monetary awards may include interest. The arbitral tribunal may also order the specific performance or termination of a contract – in both cases, with damages (Article 1489 of the Chilean Civil Code). However, the arbitrators may not grant punitive damages, as they are not recognised under Chilean law.

Parties are entitled to recover interest and legal costs. In this regard, there are several cases of international arbitration in Chile in which different rules of costs have been applied. The application depends mostly on the composition of the arbitral tribunal. If the arbitral tribunal is composed of Chilean arbitrators, there is a tendency to follow the “costs-sharing approach” rule, as it is the default rule applied by almost all courts and in almost all cases in Chile. Conversely, if the arbitral tribunal is composed of foreign arbitrators, there is a tendency to apply the approach generally used at international level (ie, “costs follow the event”).

By way of example, in the case Constructora EMEX Limitada v European Organisation for Astronomical Research in the Southern Hemisphere, the arbitral tribunal made a distribution of costs different from the above-mentioned approaches and this was later challenged through the nullity of the award. Ultimately, the court of appeal rejected the request for annulment, determining that there was no violation of public policy and that the court ruled reasonably and in use of its powers (Case No 9211-2012, Court of Appeal of Santiago).

Annulment

The ICAL establishes the request for annulment as the only means of challenging the arbitral award. The request for annulment may be based on the grounds specifically set forth in Article 34, which are the same as those established in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the “New York Convention”). Article 34 also regulates the procedural aspects of this recourse, such as the time limit for the request’s filing and the power of suspension granted to the court, as well as the court’s preference for hearing and ruling.

As for the legal nature of the petition for annulment, although the ICAL defines it as a remedy, part of the jurisprudence has qualified it as an action that would give rise to a new and independent proceeding from the previous arbitration proceeding. Thus, it can be concluded that – unlike domestic arbitration – the ICAL recognises the petition for annulment as the only action against arbitral awards.

In addition, this petition (which will be heard by the court of appeal) is structured “on the basis of specific grounds that point to the examination or external review of the award and not to the merits or content of the decision on the merits”. This undoubtedly consistent with a modern arbitration institution.

As regards the request for annulment, the court of appeal has ruled that it is an extraordinary recourse, of strict law and in accordance with the grounds established by law, granting jurisdiction to the court to examine compliance with the forms of the arbitration trial – especially with regard to the formal guarantees that the law itself establishes in an imperative manner (Santiago Court of Appeal, Case No 9134-2007 dated 4 August 2009).

In turn, the Supreme Court has ruled that a request for annulment is the only means of challenging an arbitration award, rejecting a complaint against the judges who ruled on the request for annulment (Supreme Court, Case No 7701-2012 dated 29 January 2012 and Case No 7341-2013 dated 16 November 2013). It has also been held that parties may waive the possibility of challenging an award in advance (Supreme Court, Case No 7854-2013 dated 21 April 2016).

Varying Recourse Based on Principles of Free Will and Good Faith

In 2020, in a completely exceptional decision, the Supreme Court ruled allowing the parties to vary the recourse regime, based on the principles of free will and good faith. Thus, the parties had agreed in their arbitration agreement that appeals and cassation appeals would be allowed against the final judgment. The court of appeal rejected the appeal against the arbitration award, to which – according to the appeal – the rules of the ICAL were applicable. Therefore, only the request for annulment could be filed against the award.

The requesting party filed a complaint appeal, which was dismissed by the Supreme Court. However, the Supreme Court invalidated the decision of the court of appeal by stating that – owing to the principles of free will and good faith – the parties may vary the recourse regime (Supreme Court, Case No 19,568-2020 dated 14 September 2020).

Although it is not a developed discussion, according to the new jurisprudential twist adopted by the Supreme Court (see 11.1 Grounds for Appeal), just as it is recognised that the parties may vary the system of remedies on the basis of free will and good faith, they may also agree to exclude or expand the scope of appeal or challenge under the national law based on the foregoing principles.

As mentioned in 11.1 Grounds for Appeal, the motion for annulment is structured on the basis of specific grounds that point to the examination or external review of the award and not to the merits or content of the decision on the merits.

Chile was one of the first Latin American states to ratify the New York Convention in 1975. In Chile, the New York Convention applies to all foreign arbitral awards without omission, given that Chile did not formulate the reciprocity reservation contained in Article I(3) of the New York Convention.

Enforcing Awards

The enforcement of international arbitral awards based in Chile is regulated in Articles 35 and 36 of the ICAL. Under Article 35 of the ICAL, an arbitral award shall be considered as binding, irrespective of the country in which such award was issued.

The execution is requested before the civil court with jurisdiction and the executed party may raise the exceptions contained in Article 36 of the ICAL, which set the standards for the recognition or enforcement of international arbitral awards. Examples of such exceptions include:

• incapacity of the parties or lack of validity of the arbitration agreement;
• lack of notification of the executed party;
• exceeding the provisions of the arbitration agreement;
• when the subject matter of the dispute is not susceptible to arbitration; or
• when the execution would be contrary to Chilean public policy.

Refusing Recognition

One of the grounds recognised by the ICAL for refusing recognition or enforcement of an international arbitration award is that the award has been annulled or suspended by a court of the country in which, or under the law of which, it was rendered (Article 36(v) of the ICAL).

The suspension of the arbitral award by a court of the country in which, or under the law of which, the award was rendered constitutes a ground to refuse enforcement of the award (Article 36(v) of the ICAL).

Also, in the case of a nullity action pending abroad, the Supreme Court has ruled that the award is not binding on the parties. Citing Article 28 No 6 of the ICC Rules 1998, the Supreme Court has stated that the award rendered by such court is unreformable in the system provided by such rules, so that the appeal filed before such court does not suspend the effects of the award – which remains in force – and it is possible to enforce the award as long as there is no contrary resolution (Supreme Court, Case No 5228-2008 and Case No 7854-2012).

Immunity From Execution

As a general rule, the Chilean State and its entities are subject to immunity from execution. Nevertheless, the State and its entities may waive such immunity in some cases. Specifically, Decree Law No 2,349, which regulates the international contracts for the public sector, states in Article 2 that the state and its organisations, institutions and companies may renounce their immunity from execution. It must be noted that this has a restricted scope, given that it will be limited to the execution of awards rendered in proceedings directly related to the international contracts that contain such renouncement.

Recognition and Enforcement of Arbitral Awards

The national courts have adopted the general approach of recognising and mostly accepting the enforcement of arbitral awards, regardless of the country in which they were rendered and as long as they comply with the legal requirements. By way of example, regarding the enforcement of a foreign arbitral award, the Supreme Court’s case law accepts the exequatur, as opposed to a minority of case law that rejects it.

Thus, in the case Klion SRL v Pesquera Villa Alegre SA, Case No 41,841-2017 dated 26 July 2018, the Supreme Court states: “It has become evident that, in the case of the enforcement of an arbitral award, according to the wording of Law 19,971, regardless of the country in which it was issued, it is recognised as binding in Chile if it complies with the requirements of Articles 35 and 36 of that Law, which otherwise constitutes a repetition of the relevant provisions of the New York Convention.”

In another case, the Supreme Court accepted a request for the execution of an award issued in an international commercial arbitration, ruling that it is not relevant for its recognition in another country that reciprocity exists between the country in which it was rendered and Chile. According to the Supreme Court, whenever the requirements of the ICAL are complied with, national legislation recognises the award’s binding character because it is an international arbitration (I Schroeder KG (GmbH & Co) v Exportadora Las Tinajas Limitada, Supreme Court, Case No 104,262-2020 dated 19 July 2021).

This has been executed in a number of cases allowing the enforcement of foreign arbitral awards, including:

• Gold Nutrition Industria y Comercio v Laboratorios Garden House SA v Laboratorios Garden House SA, Supreme Court, Case No 6615-2007 dated 15 September 2008;
• Almendra y Miel SA v GLG, Supreme Court, Case No 82,442-2016 dated 30 November 2017; and
• Bose Corporation v MusicWorld Audiovisión Limitada, Supreme Court, Case No 12,710-2018 dated 9 July 2019.

Refusal to Recognise

As regards the refusal to recognise or enforce an arbitral award on the grounds of public policy in general, it is understood that this should be applied restrictively and limited only to the infringement of basic and fundamental rules of the Chilean State, so as to avoid limiting the enforcement of international awards in Chile by simply invoking local public policy (Santiago Court of Appeal, Case No 9,134-2007 dated 4 August 2009, rejecting ground No 2(b)(ii) of Article 34 of the ICAL). Therefore, in relation to ground No 2(b)(ii) concerning public policy, the court of appeal has understood that it must point to the infringement of the most basic and essential rules of the Chilean State – the simple invocation of local public policy not being sufficient.

Similarly, in relation to the concept of public policy, this implies distinguishing between national public policy and international public policy. The latter is applicable in matters of international commercial arbitration, which would not include all local rules, but only those that respond to the most essential legal principles of the legal system. As such, those allegations that refer to formalities provided for in the codes of civil procedure or organic codes of courts must be rejected, except in cases where they relate to the most fundamental principles of Chile’s legal system (see, for example, Santiago Court of Appeal, Case No 9,134-2007 dated 4 August 2009; Santiago Court of Appeal, Case No 1,971-2012 dated 9 September 2013; and Santiago Court of Appeal, Case No 11,466-2015 dated 28 June 2016).

Chile does not provide for class action arbitration or class arbitration.

The Code of Professional Ethics of the Chilean Bar Association, in force since 1 August 2011, applies in the case of affiliates. In the case of non-affiliates, since 2012 it has been possible to find Supreme Court rulings defending the theory that the 2011 Code of Professional Ethics applies to all lawyers in Chile.

Chilean law does not provide any rules or restrictions for third-party financiers.

The ICAL does not provide a specific regulation with regard to consolidating separate arbitral proceedings. Notwithstanding the foregoing, in view of the power granted to the arbitral tribunal to decide the arbitration in the manner it deems appropriate in the absence of agreement of the parties (Article 19 of the ICAL), it may be understood that it would be possible to consolidate separate proceedings for the purpose of efficiency.

As regards arbitral institutions, the ICC Rules specifically regulate this subject matter. Thus, Article 10 of the ICC Rules provides that the court may – at the request of a party – consolidate two or more arbitrations pending under the ICC Rules into a single arbitration, if:

• the parties have agreed to consolidation; or
• all of the claims in the arbitrations are made under the same arbitration agreement or agreements; or
• the claims in the arbitrations are not made under the same arbitration agreement or agreements, but:
1. the arbitrations are between same parties;
2. the disputes in the arbitrations arise in connection with the same legal relationship; and
3. the court finds the arbitration agreements to be compatible.

Furthermore, it is possible to identify a similar rule in the CAM Rules, which recognise the power of the arbitral tribunal to adopt all relevant measures for the valid, effective and prompt conduct of the arbitration (Article 19 of the CAM Rules) in order to avoid unnecessary delays and to ensure efficient and fair means of resolving the dispute (Article 21 of the CAM Rules), which also could include this faculty if it is efficient and if the parties have not agreed otherwise.

The general rule under Chilean law is that third parties or non-signatories to an arbitration agreement or to the contract that contains the arbitration agreement are not bound by such agreement or by the award issued in the arbitration proceeding. A third party may only be part of arbitration prior to its consent and the consent of the actual parties to the agreement. However, there are some exceptions to this rule. A third party may be bound by an arbitration agreement that has been assigned to it by law, as occurs in legal subrogation and succession cases. Other exceptions are cases where the corporate veil or alter ego theory is applicable.

Both comparative law and national jurisprudence have extended the application of the arbitration clause to non-signatory third parties under certain assumptions related to:

• cases in which the non-signatory assumes or comes to occupy the place or legal position of one of the contracting parties; and
• cases in which the initial contracting parties are maintained but a non-signatory third party is incorporated – for example, through the stipulation in favour of a third party, the lifting of the veil of legal personality, the group of companies, estoppel, or the “own acts” doctrine.

In these cases, there would not properly be a violation of pacta sunt servanda or of the relative effect of contracts, as they assume that those who are affected by an arbitration clause have consented to it in some way.

The jurisprudence of the Supreme Court has been mainly in line with the general rule in Chile of not extending the arbitration agreement or the award to third parties, mainly on the basis of the relative effect of the contracts (Supreme Court, Case No 29,699-2014).

Recent Jurisprudence

However, some recent Chilean jurisprudence leads to the conclusion that it is possible to impose the arbitration agreement on a non-signatory party in view of the circumstances of the case, with substantive elements prevailing over the formal element of the absence of the non-signatory party. By way of example, in relation to the application of the arbitration clause to a non-signatory that participated in a bidding process but did not sign the arbitration clause, the court of appeal has ruled to reject the legality of the argument for disregarding it – given that, at the time of participating in the process, it accepted the existence of the clause and consented to it (Santiago Court of Appeal, Case No 1886-2011).

Nevertheless, there is also jurisprudence of the Supreme Court in the sense of not extending the arbitration clause to third parties because it would otherwise be an infringement of the relative effect of the contracts (Supreme Court, Case No 29,699-2014).

No special rule has been found in Chilean law regarding the capacity of the national court to bind foreign third parties.