This Country Answer reflects the state of the law as of 31 December 2012. Please refer to the explanations in the chapter entitled Preliminary Note.

A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Chile. (Note: Chile is a unitary State. Treaties must be approved by Congress and once ratified become part of the Chilean legal system.)

2. Date of entry into force of the New York Convention

3 December 1975.

(Source: Decree No. 664 dated 2 Oct. 1975, published in the Official Gazette on 30 Oct. 1975.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity?

None.

(b) commercial relationships?

None.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

Chile has a dual arbitration system: domestic and international commercial arbitration are governed by different sets of legal provisions. Awards rendered pursuant to Law No. 19.971-the 2004 Chilean law on international commercial arbitration, which strictly follows the 1985 UNCITRAL Model Law-are not regarded as domestic awards, even if rendered in Chile. Pursuant to that law, the arbitration and thus the award shall be regarded as international in Chile: (i) if the parties to an arbitration clause have, at the time of concluding that agreement, their places of business in different States (if a party has more than one place of business, the place of business shall be that most closely related to the arbitration clause; if a party does not have a place of business, reference shall be made to its customary residence); or (ii) if one of the following places is situated outside the State in which the parties have their places of business: (i) the place of arbitration if determined in or pursuant to the arbitration clause, or any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is most closely connected; or (iii) if the parties have explicitly agreed that the subject matter of the arbitration clause relates to more than one country (provided there are relevant points of connection with a foreign country).

(Source: Law No. 19.971, Art. 1(3),(4).)

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

(i) Law No. 19.971 on international commercial arbitration, published in the Official Gazette on 29 Sept. 2004; (ii) New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, enacted as a Chilean law by Decree No. 664 dated 2 Oct. 1975, published in the Official Gazette on 30 Oct. 1975; (iii) Inter-American (Panama) Convention on International Commercial Arbitration, enacted as a Chilean law by Decree No. 364 dated 19 May 1976, published in the Official Gazette on 12 July 1976; (iv) Washington Convention on Disputes on Investments, enacted as Chilean law by Decree No. 1304 dated 9 Oct. 1991, published in the Official Gazette on 9 Jan. 1992; (v) Arts. 242 to 251 of the Chilean Code of Civil Procedure (Art. 246 makes the rules governing the recognition and execution of foreign judgments also applicable to foreign awards); (vi) Bustamante Code (Pan-American Convention on Private International Law), enacted as Chilean law by Decree No. 374 dated 10 Apr. 1934, published in the Official Gazette on 25 Apr. 1934.

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

Chilean law does not provide for any time limitation specifically applicable to the commencement of legal proceedings for the recognition of foreign awards. This should in principle be subject to the same time limitations as are applicable to the enforcement of domestic judgments and awards once rendered. It could be argued, however, that the limitation period for the enforcement of foreign awards is a matter of substantive/procedural law governed by the law of the country where the foreign award was made and not by Chilean substantive/procedural law.

(Source: Civil Code, Arts. 2514 and 2515.)

Recent case law suggests that proceedings for the recognition of foreign awards can be brought before the Supreme Court at any time after the foreign award has become final, as the Supreme Court is not required to consider any restrictions imposed by time limitations when deciding whether or not to recognize foreign awards. Defences based on time limitations should be brought at a second stage in the first instance civil courts having jurisdiction to rule on proceedings to enforce foreign judgments or awards previously recognized by the Supreme Court of Chile. If the Supreme Court were nonetheless to apply a time limitation and to consider that recognition of foreign awards is an essential requirement for their subsequent enforcement in Chile, the recognition of foreign awards should in principle be subject to the same time limitations as their enforcement (on which, see below).

(Source: Supreme Court judgment, 14 May 2007, in a proceeding of exequatur called State Street Bank and Trust Company v. Inversiones Errázuriz Limitada and Others, Docket No. 2349-2005.)

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

Foreign awards can be enforced in Chile if enforcement proceedings are initiated and served upon the party against whom enforcement is sought within a maximum of 5 years after the date on which the foreign award became final under the law of the country where it was made.

(Source: Civil Code, Arts. 2514 and 2515.)

Once recognized by the Supreme Court, foreign awards shall be enforced in Chile through proceedings known as juicio ejecutivo if commenced within 3 years of the date on which the foreign award became final under the law of the country where it was made. If enforcement proceedings are commenced after the expiry of said 3-year term but before the expiry of a maximum of 5 years from the time the aw ard became final, the award is enforced

through proceedings known as juicio ordinario, which require substantive writs to be filed, evidence to be produced and a substantive judgment to be rendered.

(Sources: Civil Code, Arts. 2514 and 2515; Code of Civil Procedure, Arts. 1, 2, 3, 231, 232 and 434 para. 1.)

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

The Supreme Court has exclusive jurisdiction to rule on exequatur proceedings to recognize foreign awards.

(Sources: Code of Civil Procedure, Art. 247; Law No. 19.971, Arts. 35 and 36.)

When the Supreme Court recognizes a foreign award, it authorizes enforcement of the award by 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. This will be the court at the place where the party against whom enforcement is sought is contractually and/or generally domiciled. In the case of legal entities, the foreign award is enforced by the first instance civil court at the place where the legal entity has its main place of business. If the legal entity conducts business in several places, the foreign award is enforced by the first instance civil court at the place where the branch involved in the agreement giving rise to the dispute is domiciled. If the legal entity is not domiciled and does not conduct business in Chile but simply possesses real estate assets in Chile, the foreign award will be enforced by the first instance civil court at the place where the real estate assets are located.

(Sources: Code of Civil Procedure, Art. 251; Organic Code of the Judiciary, Arts. 134, 135, 140, 141 and 142.)

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

There are no specific jurisdictional standards to be met for the Supreme Court or the first instance civil court to rule, respectively, on recognition or enforcement of foreign awards, other than that the applicant must have legitimate standing to request recognition or enforcement of the foreign award, i.e. was the party in whose favour the foreign award for which recognition or enforcement is sought was obtained, either directly or through a legal representative.

(Source: Code of Civil Procedure, Art. 4.)

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

Exequatur proceedings in the Supreme Court are inter partes. The party against whom recognition of a foreign award is sought must be served with the exequatur and is allowed 15 days-which may be extended depending on the place where service of process takes place-to file a motion for exequatur to be refused. Before the Supreme Court issues its final judgment on the exequatur, the prosecutor of the Supreme Court is required to issue a written report expressing an opinion on whether or not the foreign award should be recognized. The Supreme Court may give the defendant an opportunity to prove its case that recognition of the foreign award should be refused, if it considers this necessary before issuing its final judgment on the exequatur.

(Source: Code of Civil Procedure, Arts. 248 and 250.)

The enforcement of a foreign award already recognized is pursued in inter partes proceedings in the first instance civil court that would have had jurisdiction over the case under Chilean procedural laws if it had been brought before a first instance civil court in Chile. For this purpose, the civil court shall follow the rules governing juicio ejecutivo proceedings if enforcement of the foreign award is sought within 3 years of the date on which the foreign award became final. In such proceedings the defendant always has the right to request that enforcement of the foreign award be refused on the basis of specific and limited defences laid down by law. If enforcement of the foreign award is sought after the expiry of the 3-year term but before a maximum of 5 years from its becoming final, the first instance civil court shall follow the rules governing juicio ordinario proceedings in which the defendant always has the right to request that enforcement of the foreign award be refused.

(Source: Code of Civil Procedure, Arts. 1, 2, 3 and 434 to 529.)

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

The judgment of the Supreme Court in exequatur proceedings can be the subject of a motion for reconsideration only on the basis of factual mistakes in the Supreme Court's decision. Such motion is decided by the Supreme Court itself.

(Source: Code of Civil Procedure, Art. 182.)

The decision of the first instance civil court in proceedings to enforce a foreign award is subject to appeal in the relevant court of appeal and the decision issued by such court of appeal may be challenged in the Supreme Court on the grounds that it lacks certain formal requirements (recurso de casación en la forma) or contravenes Chilean substantive law (recurso de casación en el fondo).

(Source: Code of Civil Procedure, Arts. 182, 186 and 764.)

(b) How many levels of appeal or recourse are available against this decision?

There is no appeal against the decision of the Supreme Court granting or denying recognition of a foreign award (other than the motion of reconsideration mentioned in 10(a) above which, strictly, is not an appeal).

(Source: Code of Civil Procedure, Art. 182.)

There are two levels of appeal-the second dealing only with issues of law-against the decision of a first instance civil court granting or refusing enforcement of a foreign award.

(Source: Code of Civil Procedure, Arts. 182, 186 and 764.)

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

The execution of a foreign award against the defendant's assets can be ordered by the first instance civil court in inter partes proceedings to enforce a foreign award only after the Supreme Court has recognized the foreign award in exequatur proceedings. Exequatur proceedings usually take between 4 and 12 months depending on the nature and complexity of the case and the litigiousness of the parties. Enforcement of a foreign award may be sought immediately after its recognition.

If enforcement of the foreign award is sought within 3 years of its becoming final and thus in juicio ejecutivo proceedings, the defendant's assets are immediately attached but execution is not possible until the first instance civil court has rendered its final judgment in the case, regardless of possible challenges. In such an event, the relevant court of appeal would require the plaintiff to provide security prior to realization of the assets.

If enforcement of the foreign award is sought after the expiry of the 3-year term but before the expiry of the maximum term of 5 years from the time the award becomes final, in which case the rules governing juicio ordinario proceedings apply, the first instance civil court may, if required, order interim or conservatory measures such as prohibiting the defendant to sell and/or dispose of its assets in order to guarantee enforcement of the foreign award. Execution against assets is not possible until the relevant court of appeal has confirmed the judgment rendered by the first instance civil court. If the court of appeal's decision is challenged in the Supreme Court, the plaintiff may realize the assets only after security has been provided.

(Source: Code of Civil Procedure, Arts. 191, 290, 438, 475 and 773.)

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

A party requesting recognition of a foreign award in the Supreme Court shall submit: (i) the award, (ii) the arbitration clause and (iii) certification from the country where the award was made that the foreign award is final pursuant to the laws of that country. The Supreme Court has determined that Law No. 19.971, the New York Convention and the Panama Convention override the provisions of Art. 246 of the Code of Civil Procedure requiring certification by the ordinary court where the award was issued that the award is authentic and final.

A party seeking enforcement by a first instance civil court of a foreign award previously recognized by the Supreme Court must submit the same documents as were submitted to the Supreme Court plus the judgment of the Supreme Court recognizing the foreign award.

(Sources: Law No. 19.971, Art. 35; New York Convention, Art. IV; Code of Civil Procedure, Arts. 246 and 247.)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

It is necessary to provide the entire foreign award, the arbitration clause, and it is also strongly advisable to provide the entire contract containing the arbitration clause.

(Sources: Code of Civil Procedure, Arts. 246 and 247; Law No. 19.971, Art. 35; New York Convention, Art. IV; Bustamante Code, Arts. 423 and 424.)

(c) Are originals or duly certified copies required?

Either originals or a duly certified copy. If certified copies are to be provided, they need to be authenticated by the Chilean consul of the country where the foreign award was made and also certified in Chile by an officer of the Chilean Ministry of Foreign Affairs.

(Sources: Code of Civil Procedure, Arts. 247 and 345; Law No. 19.971, Art. 35; New York Convention, Art. IV; Bustamante Code, Art. 424.)

(d) How many originals or duly certified copies are required?

One original or certified copy of each of the foreign award and the contract or document containing the arbitration clause is required.

(Sources: Code of Civil Procedure, Arts. 247 and 345; Law No. 19.971, Art. 35; New York Convention, Art. IV; Bustamante Code, Art. 424.)

(e) Does the authority or court keep the originals that are filed?

The Supreme Court keeps the documents filed in exequatur proceedings. A certified copy of the judgment issued by the Supreme Court recognizing the foreign award, plus a certified copy and translation of the foreign award, will then serve as the basis for enforcement proceedings in the first instance civil court. Both the Supreme Court and the first instance civil court keep the original documents until the end of, respectively, the recognition and enforcement proceedings, unless a written and reasoned request for return of the documents is submitted by the interested party and approved by the Supreme Court or the first instance civil court.

(Source: Code of Civil Procedure, Arts. 29 and 36.)

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes.

(Sources: Code of Civil Procedure, Art. 345; Law No. 19.971, Art. 35.)

(b) If yes, into what language?

Spanish.

(Source: Code of Civil Procedure, Art. 347.)

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

Yes, the translation must be performed and certified by an officer of the Chilean Ministry of Foreign Affairs.

(Source: Code of Civil Procedure, Art. 347.)

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

It is necessary to provide a full translation of all documents.

(Sources: Code of Civil Procedure, Arts. 246 and 247; Law No. 19.971, Art. 35; New York Convention, Art. IV; Bustamante Code, Arts. 423 and 424.)

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

A request to set aside or suspend a foreign award, made at the place where the foreign award was issued, does not constitute sufficient ground for the Supreme Court to stay recognition, or a first instance civil court to stay enforcement, of a foreign award in Chile.

(Source: Supreme Court, December 15, 2009, Kreditanstalt für Wiederaufbau v. Inversiones Errázuriz Limitada, Docket No. 5228-2008.)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

A party may request the Supreme Court to refuse recognition of a foreign award on the grounds listed in Art. V of the New York Convention, which are identical to those listed in Law No. 19.971. However, these provisions do not explicitly override those of the Code of Civil Procedure relating to the enforcement of foreign judgments and awards in Chile. Therefore, it could validly be argued that a party may request the Supreme Court to refuse recognition of a foreign award (i) if the foreign award contravenes Chilean public policy and/or (ii) if the arbitral award was rendered in a case that should have been brought and settled in Chilean courts, i.e. disregards their jurisdiction.

Pursuant to Chilean bankruptcy laws, recognition of a foreign award shall not be stayed by the Supreme Court in the event that the party against whom recognition is sought becomes bankrupt. However, where the enforcement of a foreign award that has been recognized by the Supreme Court is sought against a bankrupt debtor, the first instance civil court shall order that the case, once filed, be referred to the first instance civil court in which the bankruptcy proceedings have been instituted. This court determines whether enforcement of the foreign award should be granted and the final amount of the monetary recovery to which the enforcing party is entitled, given the assets of the bankrupt debtor and rights and claims of other unpaid parties.

(Sources: Law No. 19.971, Art. 36; New York Convention, Art. V; Code of Civil Procedure, Art. 245.)

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

Yes. Prior to granting a stay of the legal proceedings, the Supreme Court in exequatur proceedings, or the first instance civil court in proceedings to enforce a foreign award previously recognized by the Supreme Court, may request that the party against whom recognition or enforcement of the award is sought provide security.

(Sources: Law No. 19.971, Art. 36; New York Convention, Arts. V and VI.)

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

Documents filed in exequatur proceedings in the Supreme Court and enforcement proceedings in the first instance civil court form part of the public record. However, a request based on confidentiality or other grounds may be made for the documents to be kept in the custody of the secretary of the court. If this is granted, only the parties and judges directly involved will have access to the documents.

(Sources: Organic Code of the Judiciary, Art. 9; Code of Civil Procedure, Art. 29.)

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

The case files and hearings in exequatur proceedings in the Supreme Court are public. However, records of the hearings are private. The case files in enforcement proceedings in a first instance civil court are also public. However, parties may request the Supreme Court and/or the first instance civil court to order that the court secretary keep the case files or parts of them in custody so as at least partially to limit public access to them.

(Sources: Code of Civil Procedure, Art. 34; Organic Code of the Judiciary, Art. 9.)

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove names of parties or avoid publication of confidential information (such as business or State secrets)?

Judgments on the recognition and enforcement of foreign awards are published. There is no mechanism available either to impede publication of the judgments or to request and obtain removal of the names of the parties involved in the case.

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

Interim foreign awards shall not be recognized and enforced in Chile if they presuppose measures of compulsion prohibited in domestic arbitrations (e.g. order to apprehend defendant to compel payment of an obligation). If the interim foreign award amounts to an injunction over property as security for the result of a final, foreign arbitral award, it is doubtful that it will be recognized and enforced in Chile. According to traditional thinking and case law, based on Art. 16 of the Civil Code, foreign courts and arbitrators have no jurisdiction over assets located in Chile. This is, by far, the prevailing opinion in Chile.

(Source: Civil Code, Art. 16.)

Partial foreign award are generally recognized and enforced as long as they can be considered final and enforceable under the law where they were made.

(Source: Civil Code, Art. 16.)

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

A foreign award granting non-monetary relief will generally be recognized and enforced in Chile as long as it can be considered as final and enforceable under the law where it was made. However, if the non-monetary relief granted by the foreign award were to have a direct effect on assets located in Chile, its recognition and enforcement in Chile would be considered to fall foul of the yardstick of Art. 16 of the Civil Code (see Q.16 above).

(Sources: Law No. 19.971, Art. 36; Civil Code, Art. 16.)

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

Generally speaking, the Supreme Court and the first instance civil court would simply grant or deny recognition and enforcement of the foreign award. However, it is possible that the Supreme Court could set aside part of a foreign award if that part exceeds the arbitrator's jurisdiction, or if the subject matter of that part of the award may not be submitted to arbitration under Chilean law, or if the recognition and enforcement of the foreign award in that particular part would be contrary to Chilean public policy. Further, a first instance civil court could deny enforcement of part of the foreign award if, after exequatur has been approved, a motion to refuse enforcement were to be brought on the basis of defences explicitly mentioned in Art. 464 of the Code of Civil Procedure.

(Sources: Law No. 19.971; Art. 36; New York Convention, Art. VI.)

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

A foreign award which has been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention shall not be recognized and enforced in Chile.

(Sources: Law No. 19.971, Art. 36; New York Convention, Art. VI.)

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

There are no other procedural or practical requirements relating to the recognition and enforcement of foreign awards in Chile which are worth mentioning, except that the defendant's assets against which enforcement is sought need to be identified in enforcement proceedings in a first instance civil court only if enforcement of the award is sought within 3 years of its becoming final, in which case it is subject to the rules governing juicio ejecutivo proceedings.

(Source: Code of Civil Procedure, Art. 438.)

Country Rapporteur:

Jaime Irarrázabal C.

Other contributor:

Ricardo Riesco E.