Chile does not have a specific law on domestic arbitration. However, the Code of Civil Procedure (“CCP”) and the Code of Judicial Organization (“CJO”) contain provisions dedicated specifically to the enforcement of awards (domestic and foreign). Since 2004, international commercial arbitration, which is understood as an arbitration with an international element, is regulated by Law No 19971 on International Commercial Arbitration (“ICAL”).

Yes, Chile has been a contracting state of the New York Convention since 1975. It did not make any reservation under Art. I (3).

Domestic arbitral awards do not have to be recognized and can directly be enforced by the civil courts of first instance (Art. 635 CCP).

Foreign arbitral awards have to be recognized first by the Supreme Court through a declaration of enforceability called exequatur. Once recognized, enforcement may be requested from the court “which would have had jurisdiction to hear the case in the first or only instance if the proceedings had been brought in Chile” (Art. 258 CCP). Thus, the award-creditor must first identify the court that would have had competence if the matter would have been brought before regular civil courts. In most cases this means that the competent court to hear a civil claim is the court of the award-debtor’s domicile (Art. 134 CJO).

Since 2016, the Electronic Filing Law No. 20886 has been in force in Chile. According to this law, award-creditors must file their applications to the competent courts electronically through the Virtual Judicial Office.

For the recognition of foreign awards, the exequatur procedure starts with the filing of a digital claim, complying with the requirements of Art. 254 CCP. It must be accompanied by the original duly authenticated award or duly certified copy thereof, together with the original of the arbitration agreement or its respective certified copy.

To initiate court proceedings for the enforcement of any award (domestic, foreign and international), a written application must be submitted digitally in the form of a claim. It must comply with the requirements of Art. 254 CCP and be accompanied by the final award rendered by an arbitral tribunal sitting in Chile or by a foreign arbitral award previously recognized and authorized for enforcement by the Supreme Court.

There are no additional requirements for the court to have jurisdiction. The applicant does not need to identify assets within the jurisdiction of the court.

Court costs are regulated in Titles IV and XIV of the CCP. They are divided into personal costs (attorneys’ fees) and procedural costs (fees paid to judicial officials, known as receptores judiciales, responsible for administrative tasks such as the service of legal documents). As for the amount of costs, each court has its own particular method and criteria for determining costs, which is why it is not possible to provide a generalized answer to this.

As a general rule, the party which is defeated in respect of the total claim shall bear the costs of the litigation (which includes court fees and the other party’s attorney’s fees) (Art. 144 CCP). Thus, the losing party pays principle applies in Chile.

Adversarial. For instance, once the application for recognition of a foreign award has been declared admissible by the Supreme Court, notice of the application will be given to the party against whom enforcement is sought so that it may present its case within a fixed term (Art. 245 CCP). If the Court deems it necessary, it may even take evidence before deciding (Art. 250 CCP).

The documentation that is set out in Art. IV of the 1958 New York Convention. Pursuant to Art. 35(2) ICAL, the party applying for recognition of a foreign award must supply the duly authenticated original award or a duly certified copy thereof, and the original arbitration agreement or a duly certified copy thereof.

Yes. If the arbitral award or arbitration agreement is not in Spanish (the official language of Chile), the party must supply a duly certified translation (Art. 35(2) ICAL).

Any application or suit in contentious or non-contentious matters before any court in Chile must be filed by an attorney licensed to practice law in Chile. However, for the ensuing appearances before courts, the parties may also be represented by non-attorneys such as young law graduates or law students in their final stages of studies (but only under the supervision of a licensed Chilean attorney).

As for the recognition procedure, since that takes places before the Supreme Court, the parties must be represented by attorneys licensed to practice law in Chile or by a procurador del número (Art. 398 CJO). Procuradores del número are public servants that act as a type of legal consultants specific to the Chilean jurisdiction, but are not necessarily admitted as attorneys. Their main functions include providing notices about the status of the matters under their charge, or about the orders and resolutions issued in them, to the main attorneys entrusted with the matters (Art. 397 CJO).

Service of judicial documents is regulated in Title VI of the CCP. They are unilateral, which means that the consent of the served party is not required (Art. 39 CCP). There are different types of service for different types of legal documents, each with its own requirements.

The most important type of service is personal service, which requires physical contact between the receptor judicial, the judicial official who performs the service, and the person served (Art. 40 CCP). During the enforcement procedure, the first court decision, which orders the enforcement and requires payment from the debtor, must be personally served to them. However, if they cannot be located, the law provides for service to be conducted through subsidiary service rules (Art. 44 CCP). This allows a copy of the legal document to be left at the debtor’s domicile.

In the case of service outside its jurisdiction, in Chile, the procedure for letters rogatory is briefly regulated in Art. 76 CCP. Although, according to this article, their handling is jointly divided between the Supreme Court and the Ministry of Foreign Affairs, currently the filing of international letters rogatory is centralized in the Directorate of International Affairs and Human Rights of the highest court.

The main difference is that foreign arbitral awards must first be recognized by the Supreme Court, as explained above. Once recognized, the enforcement procedure is the same.

There are no specific provisions regarding the recognition and enforcement of partial or interim awards (both in domestic and foreign arbitration). To date, the Supreme Court has only recognized final awards. Along these lines, in Western Technology v. Cauchos Industriales (11 May 2010, Case No. 5468-09), the Supreme Court rejected the request for recognition of a precautionary measure (injunction) ordered by an arbitral tribunal in Texas, arguing that it did not establish permanent rights for the parties, which is a requirement established in the rules of the CCP.

Art. 36 ICAL provides the same grounds for refusing recognition and enforcement of an international arbitral award as those indicated in Art. V of the 1958 New York Convention. This article applies to international arbitral awards, which includes both domestic awards with an international connection, as well as foreign awards.

As previously mentioned, domestic arbitral awards do not need to be recognized. To refuse their enforcement, the award-debtor will have limited defenses which are listed in Art. 464 CCP. These include incompetence of the court, claimant’s incapacity, lis pendens, false title, previous payment, set-off, res judicata and others. These defenses are available in almost every enforcement proceeding, so they can also be invoked for the enforcement of a previously recognized foreign arbitral award.

Courts have restricted and limited the public policy violation defence when dealing with arbitral awards. In a 2009 ruling, the Court of Appeals of Santiago stated that the ground for annulment of an arbitral award based on violation of public policy “must be applied restrictively, limited only to the infringement of basic and fundamental rules of the Chilean state; this in order to avoid limiting the enforcement of international awards in Chile by simply invoking local public policy.” (4 August 2009, Case No. 9134-2007).

In Vergara Varas v. Costa Ramírez (9 September 2013, Case No. 1971-2012), the Court of Appeals of Santiago ruled that the ground for annulment based on the violation of Chile’s public policy “refers to what in classical private international law is called international public policy. The application of the notion of international public order, instead of the public order that governs domestic law, causes the annulment of arbitral awards under this concept to be limited to extremely serious violations of the fundamental principles and rules of Chilean law.” As an example, the Court noted that it would be manifestly contrary to domestic law if the right of the parties to equal treatment and due process is violated, or if fraud or corruption of the arbitral tribunal is involved.

Yes, it is. Once the exequatur of a foreign award is granted, the award acquires the status of an enforceable title, and its enforcement may be requested by means of an enforcement proceeding over a period of three years (Art. 442 CCP). As for domestic awards, as set out above, they do not need to be recognized. Hence, they are immediately enforceable upon having been rendered and the term for challenging the award has passed.

No, there are no remedies available. The exequatur procedure is under the exclusive jurisdiction of the highest Chilean court, so there are no remedies against the Supreme Court’s rulings on the matter. All appropriate defenses must be raised during the enforcement stage, such as, for example, that the award has been set aside at the seat of arbitration after the decision recognizing the award (see answer 21 below).

No remedies are available for the reason stated in the previous answer. However, if the recognition was rejected due to formal issues, case law indicates that the award-creditor can reapply for the recognition of the award. This was the case in Quote Food Products v. Sociedad Sacramento (5 July 1999, Case No. 3832-98). In that case, the Supreme Court granted the exequatur, rejecting the res judicata objection and holding that the merits of the case had not been ruled upon after the award-creditor’s request to recognize the same award had previously been rejected due to non-compliance with the formalities of the documentation submitted.

Yes. Art. 464 CCP lists the defences that may be asserted by the award-debtor in an enforcement proceeding. Set-off is one of the 17 possible defences listed in said article.

The fact that the award has been set aside by a court in which, or under the law of which, the award was made is one of the grounds stated in the ICAL for rejecting recognition or enforcement of an international arbitration award, which includes domestic arbitral awards with an international connection and foreign arbitral awards (Art. 36(v) ICAL).

In EDFI v. ENDESA (8 September 2011, Case No. 4390-2010), the Supreme Court refused the recognition of an arbitral award issued in Buenos Aires, on the ground that the award is not legally effective in the country where it was issued, having been previously annulled by the Supreme Court of Argentina.

As previously mentioned, there is no remedy against the decision of the Supreme Court recognizing the award. However, if the award is annulled elsewhere after such decision, that fact may be raised as a defense during the enforcement proceedings. Since domestic awards do not need to be recognized, the same defenses may be raised during their enforcement procedure.

Title V of the CCP regulates precautionary measures, in particular Art. 290 provides four interim measures that the award-creditor may request at any stage of the trial to ensure the effectiveness of the decision: (i) the seizure of the object of the claim; (ii) the appointment of one or more court-designated person monitoring the administration of the object of the claim; (iii) the retention of specific assets; and (iv) the prohibition to enter into acts or contracts on specific assets.

Security for costs is not expressly foreseen under Chilean law.

However, if an application for setting aside or suspension of an international award has been made in the court of the country in which that award was made, the court where recognition or enforcement is sought may, if it considers it proper and on the application of the party claiming recognition or enforcement of the award, order the other party to provide any security it considers appropriate (Art. 36(2) ICAL).