CHILE Law and Practice Contributed by: Andrés Jana, Rodrigo Gil, Francisco Grob and Victoria Demarchi, Jana & Gil Dispute Resolution
diction to hear disputes relating to the challenge or removal of arbitrators (see 4.4 Challenge and Removal of Arbitrators ). • Preliminary relief – regarding preliminary reliefs, if the arbitral tribunal has not yet been constituted (see 6.1 Types of Relief ), parties must request the preliminary relief before a local court (see 6.2 Role of Courts ). • The production of evidence – the arbitral tribunal and the parties, with previous authorisation of the former, may apply to the local courts for assistance in the taking of evidence (Article 27 of the ICAL). International commercial arbitration in Chile is ruled by the ICAL, in force since 2004. This law was drafted based on the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”) and has no relevant deviations from it. The legislative history of the ICAL demonstrates that Chilean lawmakers considered it essential to preserve the original UNCITRAL proposal as closely as possible to foster international arbitration development in Chile. Consequently, modifications to the ICAL relative to the UNCITRAL Model Law are minimal and specifically address local court jurisdiction. In this context, local court intervention was restricted to explicitly regulated circumstances, including arbitrator appointment on behalf of parties (Article 11 of the ICAL), challenges (Article 13 of the ICAL), removal (Article 14 of the ICAL), jurisdictional matters (Article 16 of the ICAL), and annulment requests (Article 34 of the ICAL). 2.2 Changes to National Law Domestic arbitration in Chile is governed by the Code of Civil Procedure (CCP) and the CJO. These regu - lations have remained largely unchanged due to the effective functioning of domestic arbitration in Chile. While pending CCP reform legislation exists, it does not propose substantial modifications to domestic arbitration provisions. 2. Governing Legislation 2.1 Governing Law Nevertheless, several reform initiatives have emerged over the years. The first attempt originated in the
early 1990s with a formalistic proposal that sought to preserve arbitration’s procedural emphasis rather than expand party autonomy. This legislation proved unsuccessful and was withdrawn in 2002. Additional reform efforts have included ongoing governmental discussions since 2013 focused on developing new comprehensive legislation that could reshape Chile’s arbitration framework, though these initiatives have not yet materialised. The proposed draft bill would comprehensively regulate domestic arbitration in both its functional and organisational dimensions. The most significant proposed reform involves eliminating the current dualist system, under which two distinct models presently co-exist: • a model for international commercial arbitration, which is flexible and deformalised; and • a model for domestic arbitration, which is more rigid and formalist. By aligning the rules governing domestic and interna - tional arbitration, this reform would achieve normative coherence while guiding domestic arbitration through modern and more flexible principles. For international arbitration, Article 7 (1) of the ICAL (see 2.1 Governing Law ) provides that an arbitration agreement may take the form of either an arbitration clause within a contract or a separate agreement. Article 7 (2) requires that the agreement be in writing. Under this provision, an agreement is deemed written when it is “contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication [that] provide a record of the agreement, or in an exchange of state - ments of claim and defence in which the existence of an agreement is alleged by one party and not denied by another”. 3.2 Arbitrability Chilean law prohibits arbitration in the following mat - ters: 3. The Arbitration Agreement 3.1 Enforceability
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