A. LEGISLATION AND RULES
A.1 Legislation
Chile continues to have a dual legal framework in the field. Domestic arbitration is ruled by the Organic Code of Courts (OCC) and the Code of Civil Procedure (CCP), whereas international arbitration is governed by Act No. 19,971 on International Commercial Arbitration (“ICA Act”), which came into force in September 2004 and it is mostly a replica of the UNCITRAL Model Law.
Chile is also a signatory to the New York Convention, the Inter-American Convention for Letters Rogatory, the Panama Convention and the ICSID Convention. Additionally, most of the free trade agreements, as well as the BITs that Chile has entered into instituted specific arbitration mechanisms to settle disputes arising from their application, to the benefit of foreign investors. In addition, the Hague Apostille Convention – which entered into force in Chile in 2016 – has greatly reduced costs and time when it comes to foreign documents, thus enhancing the advantages of the jurisdiction as an arbitration seat.
Chile has a longstanding tradition in arbitration. Domestic courts firmly protect arbitration tribunals by granting them autonomy and independence to carry out their duties. This judicial support, alongside the well-recognized quality of arbitrators and national arbitral venues, good infrastructure, and the credibility that the judicial branch has earned over decades, has positioned Chile as a reliable seat for arbitration in Latin America.
Although there are no recent legislative bills to introduce amendments to the ICA Act, the Constitutional Convention – an elected assembly that is drafting a new Constitution proposal to be voted on in the second half of 2022 – is developing a section concerning the judicial branch, in which arbitration will be expressly mentioned. Despite that it is expected that arbitration will continue to be recognized and that the Constitution will encourage alternative dispute resolution mechanisms, mandatory arbitration (i.e. a statutory obligation to resort exclusively to arbitration in certain matters) may be banned. Up to this date, conflicts between shareholders and the partition of communal property and marital partnership, among others, are matters of mandatory arbitration.
A.2 Institutions, rules and infrastructure
There are two main arbitration institutions in Chile – the Arbitration and Mediation Centre of the Santiago Chamber of Commerce (CAM) and the National Centre of Arbitration of Chile (CNA). Other minor arbitration institutions are located throughout the country.
A.2.1. CAM
CAM is the leading arbitration institution in the country. It was founded in 1992 as a nonprofit branch of the Chamber of Commerce of Santiago with the support of the Bar Association of Chile.
The CAM has its own procedural rules for both international and domestic disputes unless both parties agree to establish different rules. In April 2021, the CAM Santiago released new procedural rules for domestic arbitration.
The CAM has also a Dispute Boards service, an alternative system of early resolution of disputes, under which a panel of independent experts helps the parties to solve their disputes through informal assistance. Additionally, the CAM has created a new special mediation service for small and medium-sized businesses.
CAM headquarters are located in the city center of Santiago[1] but CAM has opened a venue in the borough of Las Condes that is closer to the main law firms’ offices[2]. Procedural tracing is conducted through E-CAM, its online system.
A.2.2. CNA
CNA was created in 2007 by independent professionals to constitute an alternative to institutional arbitration in Chile. CNA Santiago handles arbitration and mediation for solving domestic disputes. It is located in the financial district of Santiago[3].
A.2.3 Regional institutions of arbitration
There are also other regional arbitration institutions, such as the Center for Arbitration and Mediation of the Region of Valparaíso, located in the port of Valparaíso,[4] while Biobío Arbitration and Mediation Center is located in the city of Concepción,[5] and the Center of Conciliation and Arbitration has its venue in the southern city of Puerto Montt.[6]
B. CASES
As expressly provided by the ICA Act, the only way to challenge an international arbitral award is by submitting a request for annulment (recurso de nulidad) before a court of appeals. In this regard, the Chilean superior courts (Supreme Court and courts of appeals) have (i) consistently rejected actions other than the request for annulment over arbitral rulings; and (ii) still to this date, they have never granted an annulment of an arbitral award based on the ICA Act. Therefore, the criterion held by the Supreme Court to challenge an arbitral award is still narrow and restrictive, thus protecting the value of the arbitral award[7].
Moreover, the Supreme Court (which is in charge of recognizing foreign awards) tends to adopt a very protective approach of the ICA Act, since it only rejects recognition on specific occasions.
Recent case law developments include:
B.1 Benchmark Genetics Chile S.A. (formerly Salmones Chaicas S.A.) v. Atlantium Technologies S.A.[8]
Benchmark filed an appeal against a resolution issued by arbitrator Emilio Sahurie within the enforcement stage of an arbitral award. Benchmark argued that the arbitrator did not consider their arguments and dismissed their request to impede the execution of the arbitral award issued. Consequently, they filed an appeal against the decision on the grounds that the arbitrator lost impartiality and that he was no longer able to dictate any further procedural orders. Even though Benchmark’s counsel conceded that a request for annulment is the only way to challenge an arbitral order under the ICA Act, there was no other option than filing an appeal to overturn unlawful decisions that compromised the ability of the arbitrator.
The case was brought before the Court of Appeals of Santiago. The court found such appeal to be inadmissible under the ICA Act, for it rules out any remedy other than a request for annulment of an arbitral award. This prohibition was also expressly contained in the arbitral rules. As it was an issue clearly solved by both the applicable law and the particular rules, the court dismissed the appeal. Although Benchmark’s counsels decided to request the court to reconsider its position, the court ruled again in favor of the arbitrator in February 2020.
B.2 Inversiones VyV SpA v. GyM Chile SpA and GyM S.A.[9]
In December 2019, the Court of Appeals of Santiago rejected a request for annulment submitted by GyM Chile SpA and GyM S.A. against an arbitral award that forced them to pay USD 6 million. The losing parties decided then to file two resources of cassation, an extraordinary way to invalidate civil rulings suffering from serious procedural and substantial defects.
The Supreme Court unanimously rejected both requests, on the grounds that (i) the ICA Act did not allow parties to appeal from an international arbitral award, and that (ii) the nature of the annulment ruling issued by a court of appeals (which is not a decision on the merits of a case, but on the legal validity of the award) did not match the requirements set in the CCP to file a resource of cassation.
B.3 Sudamérica SpA and CCF Sudamérica SpA v. the Justices of the First Chamber of the Court of Appeals of Santiago[10]
In February 2020, the First Chamber of the Court of Appeals of Santiago declared the inadmissibility of an appeal brought against an international arbitral award. The court found that though the Arbitration Agreement expressly allowed parties to file an appeal against the final award, this provision was incompatible with the ICA Act, which made the request for an annulment the only way available in the Chilean lex fori to challenge an award.
Subsequently, the losing party submitted a request of complaint against the Justices that rejected their appeal. By doing this, Sudamérica’s counsel expected the Supreme Court to overturn the ruling, to grant the appeal and to impose disciplinary sanctions over such board of judges – on the grounds of alleged serious misconduct or abuse. In their view, the judges wrongfully altered their freedom of contract.
In September 2020, the Supreme Court rejected the request of complaint but acted ex officio to invalidate the ruling issued by the court of appeals. Following the principles of contractual freedom, good faith and estoppel, the court concluded that it was permissible for the parties to state in their arbitration agreement whatever means of challenge they deemed appropriate, apart from the request for annulment set out in the ICA Act.
Whilst this ruling confirms that free agreement of the parties is the cornerstone for international arbitration and the very source of jurisdiction for arbitral tribunals, it equally raises questions on the legal ability of the parties to set aside some aspects of the lex fori. Scholarly opinions questioned this Supreme Court’s decision[11].
[1] Monjitas 392, Floor 11, borough of Santiago, city of Santiago de Chile. Its website is: www.camsantiago.cl
[2] San Sebastián 2812, floor 5, borough of Las Condes.
[3] Apoquindo 3600, Floor 5, borough of Las Condes, city of Santiago de Chile. Its website is http://www.cna.cl/
[4] Plaza Justicia (without number), Floor 1, city of Valparaíso. Its website is http://www.abogados-valparaiso.cl/
[5] Caupolicán 567, Office 201, city of Concepción. Its website is http://www.cpcc.cl/centro-de-arbitraje-y-mediacion/
[6] O’Higgins 144, city of Puerto Montt. Its website is http://www.colegioabogados.info/centro-conciliacin-y-arbitrajes
[7] We make reference to the following leading cases: “D’Arcy Masius Benton & Bowles Inc. v. Arbitrator Mr. Jorquiera” [Court of Appeals of Santiago, Docket No. 865-2006], “Huber / Coderch Mitjans Jorge – Sociedad Río Bonito S.A. – Sociedad Queltehue S.A.” [Court of Appeals of Santiago, Docket No. 1739-2015; Supreme Court, Docket No. 30967-2015]; “Ingeniería Proyersa Ltda. v. Arbitrator Mr. Figueroa” [Court of Appeals of Santiago, Docket No. 2685-2016; Supreme Court, Docket No. 62114-2016], “Publicis Groupe Holdings B.V. v. Arbitrator Mr. Vial” [Court of Appeals of Santiago, Docket No. 9134-2007], “Administradora Río Claro S.A. v. Arbitrator Mr. Jana” [Court of Appeals of Santiago, Docket No. 3390-2017], among others.
[8] Court of Appeals of Santiago, Docket No. 14054-2019.
[9] Court of Appeals of Santiago, docket No. 4394-2019 and Supreme Court, docket No. 11139-2020.
[10] Court of Appeals of Santiago, docket No. 12017-2019 and Supreme Court, docket No. 19568-2020.
[11] e.g. Vásquez, María Fernanda (2020): “The Minimum Intervention Principle in International Commercial Arbitration: The Case of a Questionable Ruling by the Chilean Supreme Court” (title in English). In: Revista de Derecho de la Pontificia Universidad Católica de Valparaíso, N° 55, pp. 289-301.
