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FTAA - NEGOTIATING GROUP ON DISPUTE SETTLEMENT
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c. Is the jurisdiction a party to the Inter-American Convention on International Commercial Arbitration, signed in
Panama on 30 January 1975 (Panama Convention)? Is there a domestic implementing law?
Chile is party to the Inter-American Convention on International Commercial Arbitration of 1975, which was incorporated
into domestic law through Decree Law 1376 and published in the Official Gazette on July 12, 1976. Chile made no reservations.
d. Is the jurisdiction a party to any other international agreement related to international commercial arbitration?
Chile is not party to any other international agreement relating to international commercial arbitration.
2. Arbitration
a. What is the source of law for international commercial arbitration within your jurisdiction? Please cite.
There is no special law that regulates arbitration internally. The Code of Civil Procedure and the Judiciary Code contain
provisions applicable to arbitration, provided the parties have not agreed otherwise.
b. Does the law contain different rules for domestic and international arbitration?
There are no significant differences in the rules between domestic and international arbitration.
c. Are there limitations on the types of disputes that may be arbitrated?
Issues that may not be arbitrated are the exception, and relate primarily to criminal and family issues.
d. Does the law specify rules for arbitration or do the parties have autonomy to set their rules?
The Code of Civil Procedure and the Judiciary Code contain specific provisions applicable to arbitration, but this does
not prevent the parties from establishing their own rules.
e. What is the role of the courts during an arbitration? May the courts intervene prior to or during the arbitration
process?
The arbitrators have the power to issue an award settling the dispute, but do not have the power to adopt compulsory measures
during the proceedings. Consequently, it corresponds to the regular courts of law to adopt measures to enforce compliance with
the award or the appearance of witnesses.
f. Can the courts grant interim relief pending the outcome of an arbitration?
Arbitrators may grant interim relief before issuing an arbitral award, but since they do not have the power to adopt
compulsory measures, recourse must be had to regular courts to implement such measures.
g. Does the law require citizenship or a particular bar membership for participation in an arbitral proceeding, as
arbiter or representative of a party?
The parties may appoint an arbitrator with different capacities:
- De jure arbitrator: issues awards in accordance with the law and is subject, both in procedures and in the issuing of the
final award, to the rules established for regular judges, according to the nature of the suit filed
- Ex aequo et bono arbitrator: issues awards in accordance with equity and is not required to adhere, in procedures or the
award, to rules other than those the parties have expressed their agreement to submit to arbitration.
Any person may be appointed as an arbitrator, who is of legal age, has assets that are unencumbered, and knows how to read
and write, regardless of nationality. Nonetheless, de jure arbitrators must be lawyers, a profession that can only be
exercised by Chilean nationals, notwithstanding existing international treaties.
To represent a party before a regular, arbitral or special court, one must be a lawyer qualified to exercise the profession.
However, in certain matters such as those heard by ex aequo et bono arbitrators, the representative does not have to be a lawyer.
h. Does the law require that the proceedings be conducted in a particular language?
The parties are free to choose the language in which the arbitration proceedings shall be conducted. Nonetheless, if the
award has to be enforced in Chile, it must be translated into Spanish.
i. Does the law have mandatory choice of law provisions?
No, the arbitration rules set out in the Code of Civil Procedure and Judiciary Code are suppletory to the will of the parties.
j. Does the arbitration law prescribe rules for decision-making by the arbiters and the form of an award?
The arbitration must be subject to the stipulations of the contract, and the parties may even agree that a foreign law be the
applicable law for settling the dispute. The award must contain certain minimum basic elements.
k. Is the confidentiality of arbitral proceedings and awards protected by law?
The arbitral ruling is notified exclusively to the parties to the dispute. Nonetheless, once notified, the record of arbitral
proceedings must be filed with the official who would be responsible for its custody if the case had been heard by the regular
courts.
l. On what grounds will the courts set aside or decline to enforce an award?
Recognition and enforcement of an arbitral award may only be set aside in those cases envisaged by the New York Convention or
the Panama Convention.
m. What is the procedure for the enforcement of an award?
Recognition of foreign arbitral awards requires first completing the exequatur procedure before the Supreme Court.
Domestic commercial arbitration and international commercial arbitration, having already complied with exequatur formalities,
are subject to the same award enforcement procedures: enforcement of the final award may be requested from the arbitrator that
issued it, provided the period for which the arbitrator was appointed has not expired, or to the corresponding regular court,
at the choice of the party seeking enforcement. However, when the enforcement of the arbitral ruling requires urgent proceedings
or the use of other compulsory measures, or, when it is necessary to involve third parties who are not parties to the agreement
to submit to arbitration, it is necessary to have recourse to regular courts for enforcement of the ruling.
n. Please list any institutions available within your jurisdiction that provide international commercial arbitration services.
Provide internet address where available.
The institutions that provide international commercial arbitration in Chile are the following:1
- Mediation and Arbitration Center of the Santiago Chamber of Commerce, Calle Monjitas 392, piso 3, Santiago,
Tel: (562) 3607015, fax: (562) 6333395, e-mail:
camsantiago@ccs.cl, web site:
www.camsantiago.com
- Mediation and Arbitration Center of the Chilean-American Chamber of Commerce (AmCham), av. Kennedy 5735 piso 2, Torre
Poniente, Las Condes, Santiago, Tel: (562) 2909768/67, fax: (562) 212 0515, e-mail:
arbitraje@amchamchile.cl,
web site: www.amcham.chile.cl
- Region V Arbitration and Mediation Center of the Regional Chamber of Commerce and Production Valparaíso A.G.,
Pasaje Ross #149, office no. 205-206, piso 2, Valparaíso, Tel: (56-32) 239767, fax: (56-32) 212770, web site:
www.camvalpo.cl
3. Alternative forms of Dispute Resolution (ADR)
a. Are other forms of alternative dispute resolution (mediation, conciliation) available for the resolution of commercial
disputes within your jurisdiction?
Apart from arbitration, there is mediation and conciliation. These mechanisms normally require the consent of the parties
prior to being initiated, and when the parties settle by these means the result is executed in a settlement agreement.
b. Does the law or do the courts mandate or encourage the use of ADR in commercial disputes? Are there any legal impediments
to using ADR for the resolution of commercial disputes?
Conciliation is a mandatory prior stage in many civil proceedings. The new consumer protection law also establishes this
mechanism as compulsory. There is a legislative bill currently going through parliament that imposes forced mediation for
other issues.
c. Can courts enforce agreements to mediate or use other forms of non-binding dispute resolution in commercial disputes?
Where an ADR has been agreed to, an individual may have recourse to local courts to enforce that agreement.
d. Are there any organizations that specialize in ADR for commercial disputes not already mentioned?
Number 2, letter n).
e. What rules govern confidentiality and admissibility of evidence in other proceedings
In commercial matters between private parties, proceedings before regular courts are public.
4. Legal Sources and References
In addition to the references above is there an authoritative Internet site containing up-to-date information on dispute
resolution facilities available in this jurisdiction?
There is no official or authorized Internet site containing up-to-date information on institutions or organizations for the
resolution of international commercial disputes.
5. Bibliography
Please list respected reference works relating to arbitration and ADR in your jurisdiction.
- Eyzaguirre Echeverria, Rafael, “El Arbitraje Comercial en la Legislación Chilena y su Regulación Internacional,”
EDITORIAL JURÍDICA DE CHILE.
- Aylwin Azocar, Patricio, “El Juicio Arbitral,” EDITORIAL JURÍDICA DE CHILE.
- Casarino Viterbo, Mario, “Manual de Derecho Procesal (Tomo II),” EDITORIAL JURÍDICA DE CHILE.
1. The names and addresses of institutions providing arbitration services and alternative mechanisms for the solution of
private commercial disputes are provided for information purposes only, without any type of guarantee, either express or
implicit. The dissemination of information on these institutions does not constitute any guarantee or recognition as to
the quality or reliability of the services provided by these institutions.
There are no legal restrictions on the use of mediation for solving commercial disputes between private parties, but there
are some limitations when the state is involved in the dispute.
In the case of ADR proceedings, there are no specific provisions in this regard. Nonetheless, the parties may impose
contractually a confidentiality commitment on the mediator.
Note:
español
