Public records can be reviewed to identify the asset position of another party, such as the following:

• real estate registries, which hold information about real estate ownership;
• mining registries, which have information about mining concessions;
• register of commerce, which includes some information about registered corporations;
• National Institute of Industrial Property, which has all trade marks and patents given by the Chilean Authority – this information is available to the public; and
• motor vehicle registration, which holds ownership information about all motor vehicles.

Although Chile does not have discovery (understood as an open-ended fishing expedition), specific evidence may be sought on a pretrial basis through Article 349 of the Chilean Code of Civil Procedure (CCP). A party can request documents in preparation for trial and during the proceedings, as long as they have direct relation to the dispute, are not secret or confidential and the petitioning party bears the cost. If the other party refuses to file the aforementioned documents, they may be sanctioned with fines.

Further, documents may be obtained from a third party when their exhibition is required in conformity to the guidelines established in the said article, which includes financial institutions (such as banks or insurance companies) and public institutions (such as the Financial Market Commission).

As to freezing orders, in commercial and civil litigation, a party may request an injunction on an emergency basis if it is necessary to assure that a future verdict favourable to the petitioner will be enforceable, if issued, and only if there is a prima facie appearance of legitimacy of the petitioner’s claim.

If a pretrial injunction is granted, the petitioner will be required to file the lawsuit within 30 days. If the lawsuit is not filed within this deadline, the injunction will be lifted, and the petitioner will be liable for any damages caused by the injunction.

The different types of domestic judgments are as follows.

• A declaratory relief, in which the court asserts a pre-existing legal situation or right.
• A constitutive judgment, in which the court creates or modifies a legal situation or right.
• An absolutory decision, in which the court absolves the defendant.
• A condemnatory decision, in which the defendant is found guilty, ordering the defendant to do something, to refrain from doing something or to pay an amount of money.
• A provisional judgment, such as granting interim relief motions. These motions are requested in order to maintain the status quo, preserve the subject matter of the dispute, or simply prevent further injury to the claimant.
• Non-contentious judgments regarding matters, such as change of name or opening of a will.

Judgments obtained in default of representation or defence are not considered to have a different nature. If the defendant does not respond to a duly notified lawsuit, all claims will be deemed controverted by the defendant (as a fictional response). The procedure will continue in their absence, and they will be deemed notified of all presentations and rulings. The claimant will have the burden of proving all the facts they asserted on their complaint. The defendant can subsequently appear and become part of the proceedings, but they must accept the process – as is – up to the point of their intervention.

The enforcement of domestic judgments is governed by Articles 434 et seq of the CCP. Domestic judgments, once final, are enforceable by lower courts of justice. A domestic judgment is final once all recourses available to revoke or amend it have been exhausted or lapsed. Once a domestic judgment is final, it does not need to be recognised under any proceeding to be enforceable before Chilean courts.

The enforcement of a domestic judgment could be requested before the court that rendered the decision in the first instance (level) if the award-holder files a motion for a special enforcement procedure within a year of the date on which the judgment was rendered or the final decision was issued. If the enforcement is filed and served past the year but within three years of it becoming final, the petitioner could initiate an enforcement procedure before any court with jurisdiction.

The statute of limitations for initiating an enforcement proceeding is three years after the decision is final (Article 442 of the CCP).

The procedure to enforce a final decision will vary depending on the type of judgment, as follows.

• When a party is required to pay a sum of money, the other party may sue for payment in an enforcement procedure. In the event of non-payment, these procedures allow the seizure or foreclosure of assets of the debtor with the help of local police and auctioning of the assets to pay the owed amounts with the proceeds (imperium).
• When a judgment awards possession over a certain asset, the award-holder may petition the lower court for the asset to be seized or vacated, to allow the award-holder to retake possession.
• When a defendant, in breach of his obligation, has performed an act he should have refrained from doing, the enforcement will order reversal/destruction of what has been done and, if it is not possible, then the other party will be forced to compensate in damages.

Finally, if the debtor fails to comply with a domestic judgment ordering payment of a sum of money, the law permits any creditor to file a liquidation petition against the debtor.

Generally, the award-holder will bear the costs of the enforcement proceedings, until the payment from the debtor is obtained. The costs mainly are related to receptores (public officials), publications in cases of auctions, and auctioneer fees.

Receptores are in charge of the service of notice, the seizure of assets and enlisting the assistance of local police for forcing entry to premises. Each procedure carried out by a receptor could cost up to USD100. In case of an auction, the interested party must pay the auctioneer fees, which are (generally speaking) a proportion of the value of the auctioned asset. Also, other costs such as evaluation by experts, publication of notices in local newspapers with the auction information or remuneration of the asset depositary may applied.

Enforcements procedures are of expeditious execution. However, the timeframe may vary depending on several factors:

• whether the debtor challenges the enforcement;
• whether its assets are easily traceable;
• the delay in seizing them; and
• whether third parties file motions to claim ownership or possession of attached or seized assets.

Please refer to 1.1 Options to Identify Another Party’s Asset Position.

Enforcement can be challenged under procedural or substantive grounds. The grounds for challenging will vary if the enforcement petition is filed and served within the year after the decision is final or after this timeframe. If the former, then the debtor will have only three days to challenge the enforcement based solely on substantive grounds mentioned in Article 234 CCP, such as the following:

• payment;
• granting of delays or extension of deadlines;
• settlement;
• loss of its enforceable character;
• compensation; and
• transaction, among others.

This challenge must be based upon written documents accounting for events occurring after the domestic judgement becomes final and must have a plausible basis.

If the enforcement is filed and served more than a year since the decision became final but within three years from this term, then the debtor will have eight days to challenge the enforcement based on procedural matters and substantive grounds stated in Article 464 CCP.

Procedural challenges could be:

• lack of jurisdiction;
• lack of capacity or representation of the party seeking enforcement;
• pending litigation; and
• forfeiture of the bond, among others.

Substantive challenges could be:

• falsehood of the title leading to the enforcement;
• lack of any of the requirements or conditions established by law for the title to be enforceable;
• payment or remission of the debt;
• granting of delays or extension of the deadline;
• compensation; and
• obligation’s annulment, among others.

No other requirement is needed. Until the challenge is dismissed, the award-holder cannot auction nor dispose of the seized or attached assets.

All final domestic judgments that order a payment and a specific performance are enforceable.

Final judgments on declaratory reliefs in which the court asserts a legal situation or right are not enforceable since, for the former, the purpose pursued by the parties is satisfied with the sole circumstance that the judgment becomes final. For constituting rights, these judgments are normally complied with through annotations in certain registries, not requiring the intervention of imperium.

Pursuant to the final paragraph of Article 752 of the CCP, the enforcement of any judgment ordering the Chilean state to make any payment must be complied with by the President of the Republic issuing the respective Decree through the relevant Ministry. Therefore, in the case of judgments issued against the Chilean state, the enforcement procedure established in Articles 434 et seq of the CCP is not applicable and no enforcement is needed.

There is no central register for domestic judgments. However, all case files are kept in electronic dockets that are available to the parties and the public through the website of the Judicial Power and there are paid databases which hold a large number of judgments. These electronic dockets can be reviewed without any limitations, hold all the filing details and cannot be removed.

However, before electronic dockets, files were handled through physical filings. Now most of those files are archived and therefore not available to the public. To review them, a petition must be filed to the court that heard the case.

Finally, some electronic dockets are barred from the public, based on grounds of privacy, such as family and tax law cases, preliminary interim measures, and criminal cases for investigations to succeed.

Decisions rendered by foreign courts need to be recognised according to the exequatur proceeding before being enforceable in Chile (Article 242 et seq CCP). The process for obtaining judicial recognition of a foreign judgment (exequatur) is separate from the process for enforcement of a recognised foreign judgment. The purpose of the exequatur proceeding is to determine whether the foreign judgment will be recognised.

The petition for the recognition of a foreign judgment must be requested before the Chilean Supreme Court. Only the Chilean Supreme Court has jurisdiction to grant recognition of foreign judgments, throughout the exequatur proceeding (Article 247 CCP).

Chilean law places no restrictions on the defences that may be filed by the defendant. However, due to the scope of the exequatur proceeding, the defences should be related to the set of criteria defined by Chilean law for recognition of foreign judgments (ie, minimum requirements for international due process).

If the Supreme Court grants the exequatur, the enforcement must be requested before the first instance civil court that would have had jurisdiction to rule on the case had it been brought before a first instance civil court in Chile. Then, if the enforcement petition is filed and served within three years of it becoming final (and is thus carried out according to the expedited proceeding), the defences are limited to those indicated by Article 464 CCP. But, if the enforcement is requested between the third and fifth year after it became final (and thus carried out according to the ordinary proceeding), there are no limits with regard to the defences that the defendant can raise.

If the foreign judgment has been recognised by the Supreme Court, the enforcement proceeding may begin with the same rules that apply to the enforcement of domestic judgments, that is, the enforcement proceeding to be carried out before the Chilean Courts (please see 2. Domestic Judgments).

As explained in 2.2 Enforcement of Domestic Judgments, the enforcement proceeding will vary according to the type of judgment (eg, specific performance judgments, where courts order the defendant to do something, to refrain from doing something or to pay an amount of money).

In principle, final decisions such as money judgments, permanent injunctions or orders for specific performance issued by a foreign court are enforceable in Chile, although the proceeding to pursue its enforcement might vary (see 2.2 Enforcement of Domestic Judgments). However, for a judgment to be enforceable, some requirements must be met, as explained in 3.4 Process of Enforcing Foreign Judgments.

Additionally, Chilean courts tend to refuse the recognition of foreign interim measures. As the exequatur is conceived to recognise “final decisions”, the Supreme Court has ruled that such procedure applies only to final awards, and not to interim measures or provisional orders. For instance, the Supreme Court denied the recognition of an interim measure issued by an arbitral tribunal under the auspices of the American Arbitration Association. In this case, the Supreme Court held that, in cases of arbitration taking place abroad, interim measures requiring enforcement in Chile must be requested directly in national courts, according to the Law No 19,971 on International Commercial Arbitration (see Supreme Court, Case No 5468-2009).

Also, Chilean courts tend to refuse exequatur aimed at obtaining the enforcement in Chile of seizures against real estate located in the national territory. Following Article 16 of the Chilean Civil Code, the Supreme Court has held that Chilean law does not recognise foreign jurisdiction regarding real estate located on Chilean territory (see Supreme Court, Case No 17,741-2015).

Finally, it is worth noting that, under Chilean law, a court’s final judgment has no binding force except between the parties and in respect of that particular case. Thus, a foreign judgment is only enforceable against the parties to whom it is directed, and regarding which it is possible to evaluate whether the legal requirements for recognition were met. Enforcing a judgment against a party other than the named judgment debtor would violate Chilean public policy.

According to Chilean law, international treaties and reciprocity govern the recognition and enforcement of foreign judgments.

First, if an international treaty regarding the recognition and enforcement of foreign judgments has been agreed with the foreign judgment’s country of origin, the foreign judgment will need to comply with the specific requirements of that treaty.

Second, in the absence of any of those treaties, the recognition of the foreign judgment will depend upon reciprocity. Chilean law establishes that foreign judgments will be recognised and executed with the same terms and conditions as Chilean judgments in that country.

Third, if the foreign country does not allow Chilean judgments to be enforced, then the foreign judgment is unenforceable.

Fourth, if the previous rules do not apply, the foreign judgment will be recognised in Chile through an exequatur proceeding if:

• it does not contravene the Chilean public policy;
• it does not contravene the Chilean jurisdiction over the matter;
• it was duly served to the counterparty; and
• it is final and conclusive according to the foreign country laws.

As to the proceeding of the exequatur itself, the law established the following steps.

• When a plaintiff files an exequatur petition, it must notify the defendant, who has 18 working days (plus additional days depending on where the service of process took place) to answer the exequatur.
• The defendant may not respond or may answer the exequatur petition by either accepting or opposing it.
1. If the defendant does not respond, the proceeding continues as if the defendant had opposed the exequatur petition.
2. If the defendant decides to oppose the exequatur petition, the law establishes no restrictions on the defences that may be filed. Normally, though, the defences are related to the set of criteria defined by Chilean law for recognising the judgment.
• Then, the Supreme Court will request its prosecutor to provide a written opinion on whether the exequatur petition should be accepted or not. This opinion is needed even if the defendant decides to accept the exequatur petition.
• If the Supreme Courts deems it necessary, it also may open an eight-day evidentiary period (counted as working days) for the parties to prove their allegations.
• Based on the parties’ filings, the prosecutor’s written opinion, and any evidence submitted, the Supreme Court will decide on the exequatur petition and whether to recognise or reject the foreign judgment.

For a non-contentious matter, the proceeding is the same, with the exception that no defendant answer is required.

Once the foreign judgment is recognised by the Supreme Court following the exequatur proceeding, its enforcement shall be requested at a lower court, under the same conditions as a domestic judgment, that is, an enforcement proceeding (see 2.2 Enforcement of Domestic Judgments).

The recognised foreign judgment should be enforced through an expedited proceeding if the enforcement petition is filed and served on the defendant within three years of it becoming final. If the requirements to initiate an expedited proceeding are not met, or the petition for enforcement is filed and served on the defendant within five years of it becoming final, the foreign judgment must be enforced through an ordinary proceeding.

The costs arising in the recognition or enforcement proceedings are borne by the interested party. As to the exequatur, there are two costs.

The first one is the fees of receptores who carry out the corresponding service of notice. This first notice must be served on the defendant personally at their home or work address. However, if such address is hard to locate or the endeavour becomes virtually impossible due to the number of defendants, the request may be served by publishing it in a newspaper, following the corresponding legal procedure. This notice will be conducted by the lower civil court having jurisdiction over the defendant’s home or work address. As to receptores’ fees, see 2.3 Costs and Time Taken to Enforce Domestic Judgments.

If the Supreme Court grants an evidentiary period, other costs may apply (such as hiring receptores for the witnesses’ hearings).

The second cost for the exequatur occurs where the foreign judgment was issued in a foreign language: the interested party must file a copy duly translated by an official Chilean state translator.

As to the enforcement itself, since it will be carried out by a Chilean lower court, please see 2.3 Costs and Time Taken to Enforce Domestic Judgments. The typical timeframe for the proceedings to grant an exequatur is six to eight months. Once recognised, the timeframe of domestic judgment applies (see 2.3 Costs and Time Taken to Enforce Domestic Judgments).

The Supreme Court decision on the recognition of a foreign judgment during the exequatur proceeding cannot be subjected to any challenge. If the recognition petition is rejected for not complying with formalities, such as not attaching a duly authenticated or apostille copy of the foreign judgment, the plaintiff can file a new exequatur petition.

If the Supreme Court grants the exequatur, the foreign judgment enforcement will be subject to the same rules as those for challenging domestic judgments (see 2.5 Challenging Enforcement of Domestic Judgments).

Chilean law distinguishes between domestic and foreign arbitral awards, based upon where the tribunal is seated, and consequently, where their final awards are rendered.

According to the Chilean Courts’ Organic Code, arbitral tribunals seated in Chile have jurisdiction over matters brought inside Chilean territory, and their decisions are domestic, regardless of the applicable law. Thus, if an international arbitral award is rendered by an arbitral tribunal seated in Chile, it is an arbitral award rendered by a court of the Republic of Chile and, therefore, it is not subject to the rules of an exequatur for its recognition, and, for its enforcement, the general rules established in the CCP apply, since it is a Chilean arbitral award.

Recognition and enforcement of foreign arbitral awards are governed in Chile by the CCP, Law No 19,971 on International Commercial Arbitration (LACI), the New York Convention and the Panama Convention, as well as the Washington Convention in the case of ICSID arbitration.

If an international arbitration award has been rendered by an arbitral tribunal seated outside Chile, most of the Chilean doctrine advises that the final judgment should be recognised according to the exequatur proceeding to be enforceable in Chile (see 3.4 Process of Enforcing Foreign Judgments).

Domestic arbitral awards are enforceable either by the same arbitral tribunal through the enforcement procedure set by the parties, or the domestic local court through the applicable enforcement proceeding. Unlike local courts, arbitral tribunals have no imperium, that is, they cannot request the practice of imposing compulsory measures to obtain forced compliance, such as ordering the use of local police.

Recognised foreign arbitral awards can be enforced under the same conditions as domestic arbitral awards. This enforcement will be submitted to the court that would have been responsible for hearing the business in the first or sole instance if the lawsuit had been filed in Chile. The means of enforcement of a judgment will vary depending on the type of award rendered by the arbitral tribunal.

All arbitral awards that order a payment of money and specific performance are enforceable. As explained in 2.6 Unenforceable Domestic Judgments, final judgments on declaratory reliefs in which the arbitral tribunal asserts a legal situation or right, and enforcement of any award ordering the Chilean state to make any payment, are not enforceable.

Domestic arbitral awards are enforceable by either the same arbitral tribunal through the enforcement procedure set by the parties or the domestic local court through the applicable enforcement proceeding (see 4.2 Variations in Approach to Enforcement of Arbitral Awards).

Recognition and enforcement of foreign arbitral awards are governed in Chile by the CCP, Law No 19,971 on International Commercial Arbitration (LACI), the New York Convention and the Panama Convention, as well as the Washington Convention in the case of ICSID arbitration.

Once the foreign arbitral award is recognised by the Supreme Court following the exequatur proceeding, the request for its enforcement shall be made to a lower court, under the same conditions as a domestic arbitral award, that is, an enforcement proceeding (see 2.2 Enforcement of Domestic Judgments).

It is also worth observing that arbitral awards (domestic or international) must be converted to local currency to be enforced. According to Law No 18,010, the interested party must indicate in the enforcement request the conversion of the foreign currency into local currency, annexing a bank certificate as proof. The same law establishes that Chilean courts cannot deny the enforcement of an award based upon issues related to the currency conversion.

Finally, investment arbitration awards under the ICSID Convention do not require exequatur, being enforceable “as if it were a final judgment of a court in that state” (ICSID Convention, Article 54).

If the domestic arbitral award is enforced by the domestic local court, the costs applied are the ones explained in 2.3 Costs and Time Taken to Enforce Domestic Judgments (receptores’ and auctioneers’ fees). If the domestic arbitral award is enforced by the same arbitral tribunal (without imperium), the arbitration costs will include the arbitral tribunal’s fees and the centre expenses (if any).

As to foreign arbitral awards, the interested party must file with the exequatur petition the following documents in order to be paid.

• A duly authenticated original award or a duly certified copy thereof and the original arbitration agreement or a duly certified copy thereof (required by Article 35 LACI).
• According to Article 246 CCP, the interested party “must prove the authenticity and efficacy of an arbitral award by means of a sign of approval granted by a superior court of the country in which the award was rendered”, which is an additional requirement to those established by the LACI and the New York Convention.
• The foreign arbitral award issued in a foreign language must be duly translated by an official Chilean state’s translator for an exequatur proceeding to be requested (as required by the New York Convention).

As to the timeframe, and as stated in 2.3 Costs and Time Taken to Enforce Domestic Judgments and 3.5 Costs and Time Taken to Enforce Foreign Judgments, it always depends on different factors, but in principle these proceedings are of expeditious execution.

As to challenging the enforcement of a domestic arbitral award, see 2.5 Challenging Enforcement of Domestic Judgments. Article 36 of Law No 19,971 provides exclusive grounds to refuse recognition or enforcement of an arbitral award, including the following.

• The arbitration agreement was ineffective because:
1. a party to the arbitration agreement was under some incapacity;
2. the agreement is invalid under its governing law; or
3. the agreement is invalid under Chilean law because the agreement does not specify a governing law.
• The losing party was not given proper notice of the appointment of the arbitral tribunal or proceedings or was otherwise unable to present its case.
• The award deals with a dispute not contemplated by or falling within the terms of the arbitration agreement or contains decisions on matters beyond the scope of the submission to arbitration.
• The composition of the arbitral tribunal or arbitral procedure violates the parties’ agreement or, absent any agreement, the law of the arbitral seat.
• The award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which or under the law of which the award was made.
• The subject matter of the parties’ dispute cannot be resolved by arbitration under Chilean law.
• Recognition or enforcement of the arbitral award would be contrary to Chilean public policy.

These grounds must be raised before the Chilean Supreme Court by the opposing party within the exequatur proceeding.

If the exequatur is granted, the recognised foreign arbitral award will be enforceable under Chilean rules and thus the debtor could challenge the enforcement based on procedural matters and substantive grounds stated in Article 464 CCP.

Finally, it is worth noting that the Chilean Supreme Court has historically been supportive of the recognition and enforcement of foreign arbitral awards, after interpreting the limited grounds for refusal established in the New York Convention and the LACI with a pro-recognition and enforcement bias.