CHILE Law and Practice Contributed by: Andrés Jana, Rodrigo Gil, Francisco Grob and Victoria Demarchi, Jana & Gil Dispute Resolution
tral tribunal is composed of Chilean arbitrators, there is a tendency to follow the “costs-sharing approach” rule, as it is the default rule applied by almost all courts and in almost all cases in Chile. Conversely, if the arbitral tribunal is composed of foreign arbitrators, there is a tendency to apply the approach generally used at international level (ie, “costs follow the event”). By way of example, in Constructora EMEX Limitada v European Organisation for Astronomical Research in the Southern Hemisphere , the arbitral tribunal allocated costs differently from the aforementioned approaches, and this decision was subsequently chal - lenged through an annulment action. Ultimately, the court of appeal rejected the request for annulment, determining that there was no violation of public policy and that the tribunal had ruled reasonably within its powers (Case No 9211-2012, Court of Appeal of San - tiago). The ICAL establishes the request for annulment as the only means of challenging the arbitral award. The request for annulment may be based on the grounds specifically set forth in Article 34, which are the same as those established in the Convention on the Rec - ognition and Enforcement of Foreign Arbitral Awards 1958 (the “New York Convention”). Article 34 also regulates the procedural aspects of this recourse, such as the time limit for the request’s filing and the power of suspension granted to the court, as well as the court’s preference for hearing and ruling. As for the legal nature of the petition for annulment, although the ICAL defines it as a remedy, part of the jurisprudence has qualified it as an action that would give rise to a new and independent proceeding from the previous arbitration proceeding. Thus, it can be concluded that – unlike domestic arbitration – the ICAL recognises the petition for annulment as the only action against arbitral awards. 11. Review of an Award 11.1 Grounds for Appeal Annulment In addition, this petition (which will be heard by the court of appeal) is structured “on the basis of spe -
cific grounds that point to the examination or external review of the award and not to the merits or content of the decision on the merits”. This undoubtedly consist - ent with a modern arbitration institution. As regards the request for annulment, the court of appeal has ruled that it is an extraordinary recourse, of strict law and in accordance with the grounds estab - lished by law, granting jurisdiction to the court to examine compliance with the forms of the arbitration trial – especially with regard to the formal guarantees that the law itself establishes in an imperative manner (Santiago Court of Appeal, Case No 9134-2007 dated 4 August 2009). In turn, the Supreme Court has ruled that a request for annulment is the only means of challenging an arbitra - tion award, rejecting a complaint against the judges who ruled on the request for annulment (Supreme Court, Case No 7701-2012 dated 29 January 2012 and Case No 7341-2013 dated 16 November 2013). The Constitutional Court has also ruled that the annul - ment action is the sole avenue for challenging an international arbitral award, rejecting a petition that sought to declare the word “only” in Article 34 of the ICAL unconstitutional (Constitutional Court, Case No 15.144-2024 dated 30 January 2025). It has also been held that parties may waive the possibility of challeng - ing an award in advance (Supreme Court, Case No 7854-2013 dated 21 April 2016). Varying Recourse Based on Principles of Free Will and Good Faith In 2020, in an entirely exceptional ruling, the Supreme Court allowed parties to modify the recourse regime based on the principles of party autonomy and good faith. The parties had agreed in their arbitration agree - ment that appeals and cassation appeals would be permitted against the final award. The court of appeals rejected the appeal against the arbitration award, determining that – according to the appeal – ICAL rules were applicable, meaning only an annulment action could be filed against the award. The requesting party filed a complaint appeal, which was dismissed by the Supreme Court. However, the Supreme Court invalidated the court of appeals’ decision, stating that – due to the principles of party
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