CHILE Law and Practice Contributed by: Andrés Jana, Rodrigo Gil, Francisco Grob and Victoria Demarchi, Jana & Gil Dispute Resolution
the 2006 amendments that regulate interim measures and preliminary orders in more detail. Under Article 17 of the ICAL, unless otherwise agreed by the parties, the arbitral tribunal may – at the request of a party – order such interim measure of protec - tion as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. Therefore, the interim relief of the arbitral tribunal is binding. In this regard, it is possible for the arbitrator to order the issuance of a bank guarantee or attachments. The arbitral tribunal may also require the relevant party to provide appropriate security. Local courts may also grant interim measures while the constitution of the arbitral tribunal is still pending. When the interim relief is granted by a local court, the CCP shall apply (see 6.2 Role of Courts ). 6.2 Role of Courts Preliminary Relief If the arbitral tribunal has not yet been constituted (see 6.1 Types of Relief ), parties must request the preliminary relief before a national court, while pro - ceeding with the constitution of the arbitral tribunal. Once the preliminary relief has been granted, the party must submit its request for arbitration within ten days (which can be extended to 30 days). At the moment of presenting its claim, the party must also request the continuation of the measure. If it fails to do so, or if the request is rejected, the party that had requested the preliminary relief in the first place will be considered liable for any damages and will be presumed to have acted with malice (Article 280 of the CCP). The ten-day (or extended 30-day) period for presenta - tion of the request for arbitration may be problematic if the preliminary relief had been issued by a local court, pending the constitution of the arbitral tribunal, as the tribunal may not yet have been constituted during this period. Legal practice has established that, in this case, the continuation of the preliminary relief may be requested before the same court that issued it. Regarding interim relief in aid of foreign-seated arbi - trations, the Chilean courts have ruled in favour of its admissibility, affirming the jurisdiction of Chilean local
courts to order it based on Article 9 of the ICAL and affirming the non-necessity of exequatur for this type of judicial proceedings. Thus, in Case No 5468-2009 ( Western Technology Services International Inc v Cau- chos Industriales SA ), the Supreme Court – rejecting a request for exequatur from an international arbitral tribunal constituted in Dallas, aimed at guaranteeing the effective compliance with the obligation not to compete that fell on the other party – resolved that “an interim and extendable relief, according to the arbitral tribunal, does not comply with the standard for requesting exequatur, so that it must be filed directly before the ordinary Chilean courts, according to Arti - cle 9 of the ICAL”. Emergency Arbitrators Emergency arbitrator relief is not provided for in the ICAL. Thus, if the arbitral tribunal has not yet been constituted, the only alternative to the party seeking interim relief is to resort to the ordinary jurisdiction, as stated in Article 9 of the ICAL. In such cases, the interim measure’s requirement will be regulated under the rules of the Chilean CCP. However, if the parties agree to conduct the arbitra - tion under the ICC Rules, which do mention the figure of the emergency arbitrator, the appointment of an emergency arbitrator will be valid. 6.3 Security for Costs The ICAL does not specifically provide for the security for costs. Article 17 of the ICAL allows the arbitral tribunal to order preliminary relief in respect of the subject matter of the dispute (see 6.1 Types of Relief ). However, the wording of Article 17 of the ICAL and the preliminary relief regulation are wide enough to allow for security for costs as a relief, especially consider - ing they refer to an arbitration proceeding and not to a proceeding before a national court. There have been no known cases regarding security for costs.
7. Procedure 7.1 Governing Rules The procedure is regulated in the ICAL.
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