CHILE Law and Practice Contributed by: Ricardo Rozas, Max Morgan and Stefano Perretta, JJR Abogados
Unless remedies are waived, the right of appeal aris- es when the decision of the inferior tribunal causes grievance to one or more parties (there are no specific causes). The appeal remedy is available for most first- instance court rulings and is usually heard by a court of appeal. The appeal remedy must comply with basic form requirements. The regular term for appealing is five days; however, in the case of final decisions, the period is ten days counted as of the service of the decision. Depending on the subject of the trial and the type of decision appealed, the processing of an appeal can take up to two years. There is only one appeal stage, and the second- instance tribunal is allowed to review both factual and legal issues. Nonetheless, it is possible to challenge the decision of a second-instance tribunal through exceptional remedies such as cassation (these rem- edies are heard by the Supreme Court). Evidence There are no discovery obligations in Chile, but the parties are free to submit evidence based on: • documents; • witnesses; • parties’ confessions; • inspections ordered by the court; • expert reports; and • presumptions. In insurance and reinsurance disputes, ordinary and arbitration courts are entitled to the following specific faculties relating to evidence issues: • at the request of a party, to accept additional means of proof to those pointed out above; • to decree evidentiary measures ex officio at any stage of the trial; • to request recognition of documents and deal with objections; and • to assess evidence under the “sane critic” doc- trine. Costs Except for minor expenses associated with service, paperwork and auxiliary officers, no court fees are payable in Chile. Lawyer fees can be recoverable, but
only if the judge rules that there was no reasonable basis to litigate. Arbitrators fix their fees in accord- ance with the parties (note: the main local arbitration centres provide referential values based on quantum). 9.4 Enforcement of Judgments Enforcement of Foreign Judgments and Arbitral Awards Foreign judgments and arbitral awards are enforced through a process called exequatur. This process is contemplated in the Civil Procedure Code, under which judgments issued in a foreign country shall be given force in Chile by existing treaties. For their enforcement, the procedures set out in Chilean law shall be followed unless they have been modified by such treaties. If there are no treaties related to the matter, Chile shall grant to the judgment the same force granted to Chilean judgments by the jurisdiction in which the judgment was made. Where the judg- ment comes from a jurisdiction that does not enforce Chilean judgments, it shall not be enforced in Chile. If none of the previous rules may be applied, foreign judgments shall be enforced in Chile provided that: • they contain nothing contrary to the laws of the Republic of Chile, though procedural rules to which the case would have been subject in Chile shall not be considered; • they are not contrary to national jurisdiction; • the party against whom enforcement is sought was duly served with process, though such party may still be able to allege that for other reasons it was prevented from making a defence; and • they are not subject to appeals or further review in the country of origin. A duly legalised copy of the judgment – officially trans- lated into Spanish, if necessary – must be presented to the Chilean Supreme Court to begin the exequatur process. In the case of an arbitral award, its authentic- ity must also be certified by attestation of a high court of the originating jurisdiction. Notice of the enforcement request must be served on the party against whom it is sought. Such party shall have 15 days to respond (which may be extended depending on where the party is domiciled). An opin-
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