CHILE Law and Practice Contributed by: Andrés Jana, Rodrigo Gil, Francisco Grob and Victoria Demarchi, Jana & Gil Dispute Resolution
request (see 4.2 Default Procedures ). In the case of a three-member tribunal, where the co-arbitrators can - not reach an agreement on the appointment of the president, or where one of the parties fails to name a co-arbitrator, any party may request the president of the respective court of appeal to make the appoint - ment (see 4.2 Default Procedures ). In addition, the president of the court of appeal is also entitled to intervene in the arbitrators’ appointment: • when one of the parties does not comply with the agreed method; and • when a third party, including an arbitral institution, does not comply with the rules previously agreed on by the parties for the arbitrators’ appointments (Article 11 (4)(a), (b), (c) of the ICAL). Regarding limitations, the ICAL provides some guid - ance as to selecting the arbitrator. However, there is no appeal available against the appointment of an arbitrator by the president of the court of appeal. 4.4 Challenge and Removal of Arbitrators Under the ICAL, an arbitrator may be challenged “only if circumstances exist that give rise to justifiable doubts as to [the arbitrator’s] impartiality or independ - ence, or if [the arbitrator] does not possess qualifica - tions agreed to by the parties. A party may challenge an arbitrator appointed by [themselves], or in whose appointment [they have] participated, only for reasons of which [they become] aware after the appointment has been made” (Article 12 (2) of the ICAL). Unless the challenged arbitrator withdraws or the other party agrees on the challenge, the tribunal will decide on the challenge (Article 13 (2) of the ICAL). If the tribunal rejects the challenge, the challenging par - ty may request the president of the respective court of appeal to decide on the challenge within 30 days of receiving notice of the decision of the tribunal. The decision of the president of the court of appeal is not subject to appeal and the arbitral tribunal may, in the meantime, continue the proceeding and even issue its award (Article 13 (3) of the ICAL). Recent Chilean appellate court case law does not show an
increase in the number of challenges against arbitra - tors under the rules of the ICAL. Parties arbitrating under the CAM Rules must be aware that CAM Santiago will decide on the challenge without having to state the reasons for its decision. However, if the challenge is rejected, Article 13 (3) of the ICAL applies and the party that requested the challenge may “appeal” the decision by requesting that the president of the court of appeal decides on the challenge. 4.5 Arbitrator Requirements The ICAL specifically requires a potential arbitrator to “disclose any circumstances likely to give rise to justifiable doubts as to [their] impartiality or independ - ence” (Article 12 (1) of the ICAL) before confirmation and throughout the proceeding. As regards arbitral institutions, the ICC Rules require that a prospective arbitrator sign a statement of acceptance, availabil - ity, impartiality and independence in which they must disclose any facts or circumstances that might be of such a nature as to call into question the arbitrator’s independence in the eyes of the parties, as well as any circumstances that could give rise to reasonable doubts as to the arbitrator’s impartiality (Article 12 (2) of the ICAL). For that purpose, the notes to parties and arbitral tri - bunals on the conduct of arbitration establishes a list of potentially relevant circumstances regarding arbi - trators’ independence and impartiality. Furthermore, CAM Santiago does not specifically define conflicts of interest for arbitrators under its rules of international arbitration and has not yet issued a code of ethics for arbitrators under its framework. The CAM Rules do require, however, that a candidate arbitrator sign a written declaration confirming their independence and impartiality in the specific case (Article 11 of the CAM Rules). To a greater extent, if the arbitrator is Chilean, the Chilean Bar Association – of which membership is optional – has a code of ethics providing guidelines regarding the counsel–client relationship, counsel’s confidentiality duty, and conflict of interest. For arbi - trators, it provides restrictions to avoid conflicts of
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