Litigation 2024 Comparisons

The Chilean legal system is based on civil law, and mainly structured in codes and systematised laws.

Additionally, it is mainly an adversarial model, although there are certain aspects of an inquisitorial model, such as the so-called “measures to better resolve” issued by judges in civil proceedings.

The use of written submission or oral arguments depends on the specific subject matter. In certain areas such as labour law or family law, oral procedures predominate, while in civil/commercial proceedings presentations are usually written, except for specific issues.

In the Chilean legal system, there are two methods for assessing evidence presented in court. For example, in civil matter, the legislator defines the means of proof, the manner of presentation and the criteria by which the judge must evaluate it. On the other hand, in family, labour and the new criminal procedure, among others, the judge is not bound by established rules for the assessment of evidence but must rely on experience and logic, providing a well-founded rationale in their judgments.

The Chilean’s court system is hierarchical, in which the highest jurisdictional entity is the Supreme Court (Corte Suprema). The Supreme Court is responsible for the directive, corrective and economic supervisory oversight of all courts in the country and operates through three or four specialised chambers.

Also, there are 17 Courts of Appeals, which are distributed territorially throughout Chile in such a way as to cover the entire national territory. They hold a higher hierarchical position over the Criminal Oral Courts, guarantee judges and magistrate judges, exercising their jurisdiction generally over a region. In some regions, courts operate through chambers in addition to the plenary session, while in other regions, they operate solely through plenary sessions. The courts also have jurisdiction to hear certain matters at first instance, such as violation of certain constitutional rights.

At the first instance, there are various tribunals divided by subject matter, including labour courts, criminal tribunals, civil tribunals, and family tribunals, among others.

Generally, judicial filings and proceedings are open to the public, except for specific matters such as the investigative stage in criminal cases, cases of workplace accidents, or family law proceedings. Furthermore, it is possible to consult the electronic file of cases on the Judicial Branch’s website. However, under specific circumstances parties may request the court or tribunal to keep those files confidential, limiting access to them and making them only available to the parties.

To become a lawyer in Chile, the requirements are to have reached at least 20 years of age, hold a Bachelor of Science in Law degree granted by a university, not to have been convicted of certain crimes or offences, have a record of good conduct, and have completed a six-month internship at a recognised Judicial Aid Corporation. 

Documentation verifying compliance with each of the requirements must be submitted to the Supreme Court, and it will be the Supreme Court who grants the title of lawyer.

As general rule, foreign lawyers are not allowed to conduct cases before the Chilean tribunals or courts. Foreign lawyers are allowed to practise the profession in Chile when they have completed all their studies in Chile. In other cases, it will depend on whether there exists a valid international treaty with the lawyer’s country of origin recognising the professional degree obtained in the foreign country. If that is the case, a recognition process at the Ministry of Foreign Affairs must be initiated. 

For all other cases, the lawyer’s studies must be validated at the University of Chile. Regardless of whether it is through international treaties or validation of studies, it must be approved by the Supreme Court.

An attorney appearing in a court on behalf of another person must exhibit the document indicating the authorisation to do so in compliance with all legal requirements.

Despite not being a commonly practised activity, there are no legal limitations that prevent litigation funding by a third-party funder. Furthermore, there is no specific regulation governing this issue.

Due to the absence of regulation prohibiting third party-funding for certain types of lawsuits, it must be considered available for all types of lawsuits.

Due to the absence of regulation on the matter, there is no limitation either if the third-party funding is for the plaintiff or the defendant.

Due to the absence of regulation on the matter, there is no minimum or maximum amount established for the third-party funder.

Costs that a third-party funder will consider funding include, but are not limited to, administrative costs, attorney’s fees and funding for experts.

Contingency fees payments are allowed and are directly negotiated between attorney and client. 

The only regulation in this regard is Article 36 of the Santiago Bar Association Ethics Code, which provides the following rules (only applicable in cases in which contingency fees are the only retribution):

• contingency fees must be agreed in writing;
• attorney’s fees may never exceed the client’s part;
• expenses and costs must be paid by the attorney and client in the manner set forth in the agreement. In case there is no agreement as to expenses and costs, they shall be paid by the attorney;
• if the attorney quits the case, there shall be no right to collect fees;
• if the client’s economic interest is reduced by a settlement, waiver or withdraw of the case, the attorney shall have the right to collect in a manner consistent with the services rendered; and
• if the case is decided against the client’s interests, the attorney shall have no right to collect unless the parties agreed otherwise.

Due to the absence of regulation on the matter, there are no time limits for obtaining third-party funding.

As a general rule, no pre-action conduct is needed before filling a lawsuit in Chile. However, in specific procedures such as family, labour law or damages resulting from medical treatment in the public healthcare system, it is mandatory to attempt a mediation process before initiating certain proceedings.

Additionally, public works that operate under a concession system contemplate a mandatory proceeding before the Technical Concessions Panel (Panel Técnico de Concesiones). The Panel is a dispute review board regulated by law that issues non-binding recommendations on economic or technical disputes between the company managing the concessions and the Secretary of Public Works. The submission of technical and economic disputes to the Panel is a legal requirement before resorting to arbitration. 

Statutes of limitations that apply to civil suits are regulated in the Civil Code. Generally, the contractual statute of limitation in civil suits is five years from the date in which the obligation became enforceable. However, depending on the nature of the obligation, the statute of limitation may be different. 

In tort cases, the statute of limitation is four years from the date of the commission of the act.

Furthermore, there are specific cases regulated in the Civil Code, where the period applied by the statute of limitations is three years or less.

The requirements for being made subject to a lawsuit vary depending on the type of procedure. However, the defendant must be the individual, who, according to the law, is entitled to challenge or oppose a claim made against them.

The requirements for the initial complaint, which is the lawsuit itself, are contained in Article 254 of the Code of Civil Procedure, and must include, among other things, the court in which the lawsuit is filed, identification of the plaintiff and their representatives (including name, address and profession), name, address and profession of the defendant, a clear description of facts and the legal basis for the claim, and a precise statement of what is being requested from the court.

If the judge determines that any of the requirements related to the identification of the court or the parties have not been met, they can refuse to process the lawsuit.

Once the claim is served, and before the defendant’s response the plaintiff may introduce any modifications they deem necessary. These modifications will be considered, for serving purposes, as a new lawsuit, and therefore it must be served again. In any case, in the statement of reply the plaintiff may extend, refine or modify the actions and exceptions raised, without altering those that where the main subject of the claim.

The service of notice of the lawsuit must be carried out through an officer called a receptor, and the plaintiff is responsible for co-ordinating, managing, and making the necessary payments for this process to be accomplished. There is a provision called “poverty privilege” that is granted to individuals with limited financial means, which among their benefits includes the exemptions from having to pay fees to these officers.

As established by the Code of Civil Procedure, the notification of the claim (or the first filing made during the proceedings) must be personally served to the defendant at their address, delivering to them a copy of the full text of the lawsuit, the tribunal's decision relating to the admissibility of the complaint, and any other submission made by the plaintiff. However, this regulation contains certain exceptions, such as when the defendant is not found at their address on two separate days by the receptor. In this instance, if it can be proven that the defendant is within the jurisdiction and that the provided address is in fact correct, the lawsuit can be served without the need for personal provision of the documents.

When the defendant’s address is difficult to determine or the number of defendants complicates the service of the lawsuit, the court may authorise service of the lawsuit by publishing it in a newspaper in the jurisdiction where the case is being heard. This publication must contain the exact information required for personal notification.

If the party being sued has an address outside the court’s jurisdiction, it must be served through a rogatory letter. If the defendant’s address is within the country, a legal proceeding will be initiated in a court located in the respective jurisdiction with the aim of serving the lawsuit through a local receptor. In cases in which the defendant’s address is outside the country, the process must be initially managed by the Supreme Court and will vary case to case depending on the country in which the process must by carry out. 

If the defendant fails to respond to the lawsuit after being correctly served, the court may, on its own initiative or at the request of a party, continue with the trial in absentia, as if the defendant had denied all of the facts contained in the lawsuit. In those cases, as a rule, it will be the onus of the plaintiff to prove each of the facts that supports their lawsuit. 

The action will proceed as usual, with each of the rulings or resolutions being served to the defendant, who may participate in any instance of the trial accepting everything that has been decided in his or her absence. 

Collective actions in Chile are allowed only for specific matters, such as consumer rights or unfair competition.

In the case of consumer rights, Law 19.496 authorises collective actions when there is a common interest among consumers, who must not be less than 50 individuals properly identified. Furthermore, it can only be comprised by the National Consumer Service, or any consumer association established in the last six months before the class action.

In cases of unfair competition, since 2019 Law 20.169 allows collective actions by smaller-sized companies against specific breaches as the establishment of abusive clauses or systematic non-compliance with contractual obligations.

There is no requirement to provide clients with a cost estimate of potential litigation, beyond certain recommendations and non-binding guidelines provided by the Code of Ethics of the Bar Association.

It is possible to request interim measures and/or motions before trial, which must be requested by the future plaintiff, specifying the action they intend to bring and its grounds. These measures aim to prepare for the subsequent trial, safeguard evidentiary measures and/or secure the outcome of a potential judgment. Thus, the application could seek to solve management issues or obtain remedies from the tribunal.

When interim measures are granted by the court or tribunal, the petitioner must file the lawsuit within a period of ten days, which may be extended to 30 days, and the lawsuit must also request the conservation of the granted remedy/measure. In the event of failing to file the claim, failing to request the preservation of the measures, or if the court, upon resolving the request, does not maintain those measures, the petitioner shall be responsible for all damages caused by it.

Generally, early judgments are not provided under Chilean Law. However, the defendant, prior to responding to the lawsuit, may request a motion to dismiss based mainly on procedural aspects, such as res judicata or previous settlements. If granted, such a request results in the termination of the lawsuit.

Against such judgment, an appeal may be filed within five days of being served.

Dispositive motions that are commonly made before trial are described in 4.1 Interim Applications/Motions.

The Code of Civil Procedure contains provisions which allow interested parties, different from the plaintiff or defendant, to join a lawsuit. 

In this regard, there are three possibilities: (i) their interests are opposed to the interests of the parties; (ii) their interests align with one of the parties; or (iii) their interests are independent from the parties. The specific requirements for joining the lawsuit will vary depending on those three cases, but in all scenarios it will be necessary to demonstrate the interest in the outcome of the trial.

If their appearance is accepted, the effects of the final judgment will be binding to them as if they were original parties. Additionally, interested parties must accept actions and motions previously executed in the proceedings.

There is no possibility for the defendant to request the plaintiff to pay a sum of money as security for the defendant’s costs, but when responding to the lawsuit the defendant may request of the court that the plaintiff pay the costs, which will be decided at the end of trial.

When an injunctive relief (prejudicial provisional measure) is requested before the trial, a bond or other sufficient security will be required by the court to cover any damage that may arise in this regard. During the trial, if the injunctive relief requested is not expressly provided by law, the court/tribunal may also require a bond to cover any resulting damages, if it deems necessary.

See 4.1 Interim Applications/Motions. The party that has been completely defeated in a lawsuit must bear its costs. However, the court may exempt them from this obligation if it deems that there are reasonable grounds for litigation.

There is no specific timeframe in which a court must deal with an application. Nonetheless, it is possible to argue the urgency of the requested matter, explaining in the submission the reasons for that urgency.

Regarding discovery in civil cases, the future plaintiff has the possibility to request from the court, briefly stating the action they intend to file, certain measures to prepare the lawsuit or to preserve certain items of evidence. Among those measures can be requested the deposition of a witness for whom there is a well-founded fear that, due to serious impediments, their testimony will not be possible to obtain during the trial.

Also, the production of certain documents can be requested which would be relevant for the subject matter of the future trial, such as accounting books, wills, property titles or other public instruments, among others. 

During the trial, it is possible to request the exhibition of documents or contemporary evidence if such documents or evidence have a direct relevance to the subject matter of the trial and the document is not subject to legal confidentiality or privilege.

In civil trials it is not possible to obtain discovery from a third party not named as a plaintiff or defendant. However, it is possible to request and obtain the exhibition and submission of documents held by third parties. 

There is no obligation for the parties to disclose documents, but as a pre-trial motion one of the parties may request discovery of documents, as mentioned in 5.1 Discovery and Civil Cases. In the event of non-compliance with the requested documentation, sanction will vary depending on the request, including fines or the inability to subsequently present the document in the trial.

In civil proceedings, the means of evidence that parties can introduce at trial are determined by law. These may include documentary evidence (in all forms and with a broad interpretation of the word documents, including e-mails, text messages, videos, among others), the deposition of a party, witness testimony and expert reports.

After the conclusion of the discussion stage, the judge will provide the list of issues that must be proven at trial, and a 20-day evidentiary period will be opened for the presentation of evidence. This period may vary in specific circumstances, such as when evidence is presented outside the jurisdictional territory of the court. The way each example of evidence is developed and admitted at trial will depend on the type of evidence.

In the case of witness testimony, a list of the individuals who are to testify must be submitted within five days of the beginning of the evidentiary period. Testimonies are taken in oral hearings by an external officer called a “receptor” and must be taken during the 20-day period. 

There is an obligation for the parties in the lawsuit to testify under oath regarding facts related to the claim, which can be requested until the expiration of the evidentiary period. A questionnaire must be submitted and shall remain in the custody of the court until the time of the deposition. If a party fails to appear to provide their testimony, inferences may be drawn regarding the questions contained in the questionnaire. 

Parties may submit an expert report as documentary evidence, and subsequently the expert may be examined under the rules governing witness testimony. Nevertheless, there is also the possibility that the judge requests an expert report, either upon request of a party or ex officio.

Legal privilege is recognised in different areas of the Chilean legal system. In the Code of Civil Procedure, it is stated that lawyers shall not be compelled to testify about facts that have been confidentially communicated to them in the context of their professional practice. This regulation is similarly replicated in the Code of Criminal Procedure. Indeed, the Criminal Code classifies the disclosure of a client’s confidential communication by a lawyer as a crime.

In those regulations, there is no distinction between external and in-house counsels.

The Code of Ethics of the Bar Association also contains detailed regulations regarding legal privilege, which applies only to those who are members of the Bar Association.

Beyond the rules set out in 5.5 Legal Privilege,discovery may be denied by the court if the document has no relevance to the subject matter of the trial or if the document is subject to confidentiality or privilege.

If parties request the exhibition and submission of accounting information, the general rule is that, with exceptions, complete disclosure of accounting books cannot be granted and only partial disclosure may be sought.

The granting of injunctive relief is based on the principles “periculum in mora” and “fummus bonis iuris”. Therefore, in the presence of a reasonable probability of success of the claim, and in the circumstance that a delay in the process could pose a danger to the enforcement of the judgment, this type of measure may be granted. In addition, there are other factors to be considered, such as the suitability of the measure or its proportionality.

Within injunctive reliefs, we can identify both innominate and nominated measures. The first ones are related to requests made to the judge for taking necessary actions that are deemed suitable and appropriate for the specific case. Nominated measures are expressly provided for in the legislation, and relate, among other things, to the retention of specific assets or the prohibition for engaging in acts or contracts related to specific assets. 

The only regulation related to the arrangements for urgently obtaining an injunctive relief illustrates the possibility of dispensing the requirement to provide supporting evidence when there are serious and urgent grounds. In any case, such supporting documents must be submitted within a maximum period of ten days. 

The Arbitration and Mediation Center of the Santiago Chamber of Commerce ("CAM Santiago") provides for an emergency arbitration procedure in which the arbitrator has competence to consider, judge and enforce injunctive relief. This procedure includes tight deadlines for the resolution of the request as the arbitrator shall be appointed within two days from the request and must accept the appointment within a period of two days.

Once appointed, the arbitrator shall initiate the procedure on the following day, determining whether a hearing with the parties will be convened or not. In the absence of any other pending matter, the emergency arbitrator shall proceed to render a decision within a period not exceeding five days.

Injunctive relief can be obtained on an ex parte basis, except in cases where the law expressly requires the intervention of both parties.

If injunctions are requested before trial, the applicant must file their lawsuit within a period of ten days, which may be extended to 30 days, seeking the maintenance of the requested measure. If the lawsuit is not filed, and extension of the requested measure is not sought, or the court does not maintain those measures, the applicant will be held liable for all the damages suffered by the respondent.

The party requesting a pre-trial interim measure shall provide a bond or other sufficient guarantee, determined by the court, for the purpose of covering any resulting damages.

Injunctive relief may be granted against the worldwide assets of the respondent, which must be requested by the Supreme Court to the country where the assets are located. However, the request must refer to specific assets, and its execution shall be subject to the general rules applicable to the matter.

An injunctive relief cannot be obtained against third parties, notwithstanding that they may be affected by the resolution granting it. An example of this is the prohibition on entering into acts and contracts regarding specific assets, an obligation that also applies to third parties.

Consequences of a respondent’s non-compliance of an injunction will vary depending on the case, including fines and the annulment of legal acts related to the asset or person subject of the measure. 

The way in which trials are conducted will depend primarily on the subject involved. In civil matters, proceedings are largely conducted in writing, with certain exceptions such as witness testimony. However, appeals generally involve oral arguments by attorneys.

In family, criminal cases, or labour matters, despite the existence of written submissions, oral hearings are conducted in which the parties present their evidence and arguments.

As referred to in 7.1 Trial Proceedings, family and labour proceedings contemplate oral hearings in which parties present their evidence and arguments for the trial. In such cases, those hearings do not have a fully determined structure and will largely depend on the discretion of the respective judge.

In Chile, there are no circumstances in which jury trials are available in civil cases.

As mentioned in 5.4 Alternatives to Discovery Mechanisms, the admission of evidence is determined by law, which also provides for the manner and timing of its introduction and admission at trial. 

In civil proceedings, it is the judge who establishes the facts to be proven, and the parties must render the evidence they deem necessary for those purposes.

Furthermore, the way in which each means of proof will be evaluated by the judge is also determined by the law, which establishes the preference to be given to one mean over another and the guidelines in this regard.

Parties may submit an expert report at trial, and the expert can be then questioned under the rules of witness testimony. There are cases where the law expressly requires expert reports. Furthermore, the judge may, upon the request of a party or on their own initiative, order an expert testimony regarding matters related to foreign laws or facts that require specialised knowledge in a particular science or art. In the event it is sought by either party, this can only occur during the evidentiary period.

Unless specific circumstances apply, transcripts of hearings are available to the public on the judiciary’s website. These exceptions are mainly related both to matters that are inherently confidential by nature and to requests that the parties may make to maintain confidentiality.

In family, labour or criminal proceedings, which are mainly oral, the judge plays a significant role and is responsible for guiding the conduct of the hearing. In civil cases, given that proceedings are mostly conducted in writing, their involvement is minimal, with the final decision being reserved for the final verdict. 

A commercial proceeding before ordinary Chilean courts lasts between five and seven years, between two and four years before trial courts, between one and two years before courts of appeals, and about one year before the Supreme Court.

In the case of arbitrations, the usual duration is of two years (which is also the maximum provided by law for domestic arbitral proceedings). 

Court approval is not required for a settlement, except in cases expressly specified by the law, such as settlements concerning future alimony in family matters. 

Since it is an agreement negotiated directly between the parties, it can remain confidential if parties agree.

Since a settlement is considered a contract between the parties, they are enforced as such. In cases in which the settlement is documented in a public deed and involves a liquid obligation, its enforcement can be pursued through an executive procedure.

Since a settlement is considered a contract between the parties, it can be set aside in accordance with contract law. In this regard, there are grounds for requesting annulment, such as a settlement obtained through fraud.

According to its content, there are mainly four forms of available awards to a successful litigant:

• Awards that compel the fulfilment of an obligation. These serve two purposes: to declare the right and to impose an obligation.
• Awards declaring the creation, modification, or extinction of a legal status.
• Awards declaring the existence or non-existence of a legal status.
• Awards that do not entail a pronouncement of substantive issues, but rather involve injunctive relief.

The Chilean legal system only provides for the compensation of damages actually suffered by the plaintiff. Therefore there is no regulation related to punitive damages, although certain courts use the concept of moral damages to apply a form of punitive justice.

A successful party may collect interests based on the period before judgment is entered. There is a debate whether the interest begins to accrue from the moment the obligation becomes due or from the moment it is notified to the debtor. In any case, judgments usually provide for the moment in which interests begin to accrue. Such interest shall accrue until it is paid.

The enforcement of a domestic judgment corresponds to the court of first or sole instance that issued it. 

The way in which this process is carried out depends on the respective judgment, but it may involve the assistance of the police or the seizure of assets.

A series of circumstances must be taken into consideration when determining whether a judgment from a foreign country is enforceable in Chile or not.

These include the following:

• The existence of international treaties with the country whose judgment is being sought for enforcement.
• In the absence of treaties, the existence of reciprocity in the enforcement of judgment with the foreign country. In cases where the foreign country does not enforce judgments from Chilean courts, such judgments will not be recognised as valid in Chile.
• If those rules cannot be applied, the following requirements must be met: the judgment must not contain anything contrary to Chilean laws; it must not conflict with national jurisdiction; and the judgment must have been duly served, in addition to being final and enforceable in the country where it was rendered. Nonetheless, the party against whom the judgment is to be enforced may prove that it was prevented from presenting means of evidence. 

If any of those requirements are met, the judgment must be submitted to the Supreme Court with a duly certified copy, and it will be the Supreme Court that authorises its enforcement.

In case the enforcement relates to an arbitral award, the proceeding shall follow the rules of Law N° 19.971 on International Commercial Arbitration, which follows the UNCITRAL Model Law.

The civil legal system operates under the premise of double instance; so, unless expressly stated, all decisions made by a court are subject to review by its hierarchically superior, with a generic ground for the admissibility of the appeal being the presence of a detriment to the requesting party.

In civil matters, all final and interlocutory resolutions issued by trial courts are directly appealable, unless it is expressly denied by law. In the case of other types of rulings, they are only appealable in specific circumstances and always as a subsidiary procedure, after a motion to reconsider.

In cases of unappealable final judgments or interlocutory judgments that conclude the proceeding issued by the Court of Appeals there is the possibility of them being reviewed by the Supreme Court through an annulment remedy, which has limited ground for admissibility.

See 10.1 Levels of Appeal or Review to a Litigation and 10.3 Procedure for Taking an Appeal.

An appeal must be filed before the court that issued the ruling within a period of five days from the date on which it was duly served. In appeals against final judgments, this period would be ten days. The petition, which must be written, must include both the factual and legal arguments upon which it is based, as well as specific requests to the court. Failure to meet these requirements will result in the judge declaring the appeal inadmissible. The appeal will be heard by the hierarchically superior court of the one that issued the ruling.

Regarding annulment remedies, they must be filed in a term of five, ten or 15 days, depending on the type of ruling. The requirements for both admissibility and granting these remedies are more rigorous that in the case of general appeals. As an illustrative example, the grounds in which the annulment is based must have been previously alleged during the trial. Finally, it can only be requested based on very specific grounds related to the application of substantive law or the way the trial was conducted.

The appeal is the mechanism through which the principle of double instance is materialised in the Chilean legal system. Therefore, the main limitations faced by the Appeal Court are the formulations and requests made by the parties in the appeal brief. This implies that the Appeal Court can review both factual and legal aspects that it deems appropriate and that have been raised at the first instance. It can also admit new evidence. 

Additionally, the decision of the Appeal Court cannot result in a more onerous outcome for the appellant than what was ruled at the first instance.

The court cannot impose any conditions on granting an appeal beside the accomplishment of legal requirements. 

After the hearing of the appeal, the appellate court may confirm, revoke, or modify the first instance decision. It should be noted that, as mentioned, in the event of revoking or modification of the judgment, the request made by the appellant will serve as a limitation as the new judgment cannot impose a worst outcome for the appellant than the first instance’s judgment.

In cases of modifications, the Court of Appeals shall make the necessary additions to the resolution to support the decision rendered. When the judgment is revoked, the court shall invalidate the decision and the grounds on which it was based, replacing them in accordance with the law.

The party that has been completely defeated in a lawsuit must bear its costs. However, the court may exempt them from this obligation, if it deems that there were reasonable grounds for litigation.

Among these costs are both court’s services and the lawyer’s fees, which will be determined by the court itself. Parties can challenge the amount of the costs to be paid within three days of being notified.

As mentioned in 11.1 Responsibility for Paying the Costs of Litigation, the court must consider whether the defeated party had reasonable grounds for litigation or not.

Interests are not considered as part of the costs to be awarded.

The most popular ADR is arbitration. In Chile, arbitration is widely used, both voluntarily and mandatorily. For instance, under Chilean law, corporations must include an arbitration agreement in case of conflicts between shareholders, the company, and management. 

Chile has a long-standing tradition of respecting arbitration and arbitral awards, minimally interfering with arbitral proceedings. For instance, since the International Commercial Arbitration Law was issued, Chilean courts have rejected all annulment remedies filed before them.

Chilean legal system promotes ADR by requiring its mandatory participation in certain proceedings. In addition to the cases mentioned in 3.1 Rules on Pre-action Conduct where mediation is mandatory, there are certain proceedings where resolution through arbitration is also compulsory. Some examples in which arbitration is mandatory are the liquidation of marital community, division of assets, or disputes among shareholders of a corporation.

If someone goes to the ordinary courts for a matter that should have been resolved through arbitration and the court’s lack of jurisdiction is required and granted, the plaintiff may be liable for the costs.

In Chile the main local institution offering and promoting ADR is the Arbitration and Mediation Center of the Santiago Chamber of Commerce (CAM Santiago). It is a very well-organised institution that manages both domestic and international arbitrations, as well as dispute boards and mediation. 

The International Chamber of Commerce has gained a larger presence over the past several years. 

In Chile, regulations regarding the conduct of arbitration could be categorised as dualistic, where different laws apply depending on whether it is a domestic or international arbitration case. 

In the field of international arbitration, in 2004 Chile enacted Law 19.971 on International Arbitration which was inspired by the UNCITRAL Model Law from 1985. On the other hand, domestic arbitrations are regulated by the Organic Code of Courts and the Code of Civil Procedure.

Regarding the enforcement of foreign arbitral awards, besides Law 19.971, Chile is also a signatory to the New York Convention, which means that judgments issued by foreign arbitration tribunals are recognised in the country if the requirements referred to in 9.5 Enforcement of a Judgment from a Foreign Country are met.

Articles 229 and 230 of the Organic Code of Courts expressly prohibit certain matters from being resolved through arbitrations. These include issues related to family law, criminal cases, local police matter, disputes between a legal representative and their represented party, as well as cases where the judicial prosecutor must be heard.

Based on the principle of minimal intervention by ordinary courts, in the case of international arbitration, the avenues for challenging an award are limited solely to the annulment remedy of Law N° 19.971 on International Commercial Arbitration, and under specific and exhaustive grounds. These relate mainly to issues pertaining due process of law, including incapacity of the arbitrator, defects in the appointment of the tribunal or if the award is contrary to Chilean public policy, among others.

In domestic arbitrations, the award can generally be challenged using any of the remedies available under the Chilean legal system, if the necessary requirements are met, without prejudice to any agreements made by the parties. However, parties usually waive remedies in most arbitration agreements. 

According to Law 19.971, for the enforcement of foreign arbitration awards a written application must be submitted to the competent court, along with the duly authenticated award or a certified copy, as well as the arbitration agreement. If those documents are in a language different from Spanish, a duly certified translation must be also provided. Nevertheless, even though it is not a requirement stipulated by the law, in practice the Supreme Court still considers the fulfilment of requirements mentioned in 9.5 Enforcement of a Judgment from a Foreign Country.

In the case of domestic arbitration, enforcement must be requested before the same arbitrator if the term of service has not expired, or to the competent ordinary civil court, being at the discretion of the party seeking the enforcement. However, if it involves coercive measures or affects third parties not involved in the arbitration, it is necessary to resort to the assistance of the ordinary civil courts, because arbitrators lack coercive powers.

During the past several years, Chile has been working on a civil procedural reform. Such reform considers a complete reformulation of the Chilean civil proceeding, intended to substantially reduce its duration by incorporating a trial based on oral hearings. The civil procedural reform is currently in the Chilean Congress, in its second constitutional legislative procedure. 

It is not clear when the civil procedural reform will come into force. Once legally enforceable, it will most likely be implemented by stages, as it requires important structural adjustments for the judiciary.