CHILE Law and Practice Contributed by: Andrés Jana, Rodrigo Gil, Francisco Grob and Victoria Demarchi, Jana & Gil Dispute Resolution
• criminal cases; • minor offences and city ordinances; • family law issues such as child support and peti - tions for marital property division; • disputes between legally incapacitated persons and their legal representatives; and • disputes that must be heard by the judicial prose - cutor (fiscal judicial) and therefore affect the public interest (Articles 229–230 of the CJO). Disputes arising under the Labour Code are also excluded from arbitration, owing to the public policy aspects of labour issues and the prohibition on waiv - ing labour rights. However, the Labour Code does permit arbitrations related to collective bargaining processes in the form prescribed by the Labour Code. Reluctance or Refusal to Enforce Arbitration Clauses Although not addressed by the Chilean legislation or judiciary to date, Chilean courts might be reluctant to enforce an arbitration clause with regard to self- executing instruments such as securities, cheques or promissory notes. In addition, Chilean courts might refuse to enforce an arbitration clause relating to envi - ronmental issues, the registration of IP rights or civil responsibility for violations of antitrust or competition law because such matters are part of Chilean public policy. However, since 2014, the Network Information Center of Chile (NIC Chile) – an institution dependent on the Universidad de Chile, which is responsible for the registrations of “.cl” domain names that identify Chile on the internet – has been submitting disputes aris - ing from the “.cl” domain to arbitration. In addition, in 2018 the Chilean Institute of Industrial Property ( Instituto Nacional de Propiedad Industrial ) signed a memorandum with the World International Intellectual Property Organization to promote alternative dispute resolution procedures. Accordingly, Article 1 (5) of the ICAL specifically states that the law does not change the domestic regulations on non-arbitrable matters. Furthermore, the legislative history of the ICAL (see 2.1 Governing Law ) indicates that matters related to public policy (eg, labour, family
or consumer rights) cannot be subject to international arbitration. 3.3 National Courts’ Approach The ICAL (see 2.1 Governing Law ) does not define which law should govern the arbitration agreement. As it is not expressly established, it has been understood that the parties are free to determine the law or laws by which the arbitration agreement shall be governed. In the absence of such a decision, the implicit will of the parties must be sought among the provisions of the agreement when it comes to rights and obligations arising out of such provisions. If this is not possible, the Chilean law – as the law of the seat– shall apply. In this regard, in one case, the Supreme Court con - sidered only Law No 19,971 as the applicable law to revise an arbitration agreement ( Almendra y Miel SA v GLG , Supreme Court, Case No 82,442-2016). In another case, the Supreme Court – when reviewing an arbitration clause in a contract governed by the laws of the state of Minnesota – used the rules of the Chilean Civil Code to interpret it ( Medtronic USA Inc v Med Implant y Compañía Limitada , Supreme Court, Case No 9,248-2013). In general, national courts have been inclined to enforce arbitration agreements (see 5.5 Breach of Arbitration Agreement ). 3.4 Validity The doctrine of separability of the arbitration clause is expressly acknowledged in the ICAL (see 2.1 Gov- erning Law ), which – following the UNCITRAL Model Law – states that “an arbitration clause [that] forms part of a contract shall be treated as an agreement independent of the other terms of the contract” for the purposes of establishing the tribunal’s jurisdiction (Article 16 (1) of the ICAL). Therefore, under the ICAL, the invalidity of a contract may not affect the validity of its arbitration clause. This has been recognised by the Santiago Court of Appeal ( Tampico Beverages, Inc v Productos Naturales de la Sabana SA Alquería , Santiago Court of Appeal, Case No 6,975-2012).
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