CHILE Law and Practice Contributed by: Andrés Jana, Rodrigo Gil, Francisco Grob and Victoria Demarchi, Jana & Gil Dispute Resolution
autonomy and good faith – parties may modify the recourse regime (Supreme Court, Case No 19,568- 2020 dated 14 September 2020). 11.2 Excluding/Expanding the Scope of Appeal Although it is not a developed discussion, accord - ing to the new jurisprudential twist adopted by the Supreme Court (see 11.1 Grounds for Appeal ), just as it is recognised that the parties may vary the system of remedies on the basis of free will and good faith, they may also agree to exclude or expand the scope of appeal or challenge under the national law based on the foregoing principles. 11.3 Standard of Judicial Review As mentioned in 11.1 Grounds for Appeal , the motion for annulment is structured on the basis of specific 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. Chile was among the first Latin American states to ratify the New York Convention in 1975. In Chile, the New York Convention applies to all foreign arbitral awards without exception, as Chile did not make the reciprocity reservation contained in Article I(3) of the New York Convention. 12.2 Enforcement Procedure Enforcing Awards The enforcement of international arbitral awards based in Chile is regulated in Articles 35 and 36 of the ICAL. Under Article 35 of the ICAL, an arbitral award shall be considered as binding, irrespective of the country in which such award was issued. Enforcement is requested before the competent civil court, and the party against whom enforcement is sought may raise the exceptions contained in Article 36 of the ICAL, which establishes the standards for recognition or enforcement of international arbitral awards. Examples of such exceptions include: 12. Enforcement of an Award 12.1 New York Convention
• incapacity of the parties or lack of validity of the arbitration agreement; • lack of notification of the executed party; • exceeding the provisions of the arbitration agree - ment; • when the subject matter of the dispute is not sus - ceptible to arbitration; or • when the execution would be contrary to Chilean public policy. Refusing Recognition One of the grounds recognised by the ICAL for refus - ing recognition or enforcement of an international arbitration award is that the award has been annulled or suspended by a court of the country in which, or under the law of which, it was rendered (Article 36 (v) of the ICAL). The suspension of the arbitral award by a court of the country in which, or under the law of which, the award was rendered constitutes a ground to refuse enforce - ment of the award (Article 36 (v) of the ICAL). Also, in the case of an annulment procedure pending abroad, the Supreme Court has ruled that the award is not binding on the parties. Citing Article 28 No 6 of the ICC Rules 1998, the Supreme Court has stated that the award rendered by such court is unreformable in the system provided by such rules, so that the appeal filed before such court does not suspend the effects of the award – which remains in force – and it is possible to enforce the award as long as there is no contrary resolution (Supreme Court, Case No 5228-2008 and Case No 7854-2012). Immunity From Execution As a general rule, the Chilean state and its entities are subject to immunity from execution. Nevertheless, the state and its entities may waive such immunity in cer - tain cases. Specifically, Decree Law No 2,349, which governs international contracts for the public sector, provides in Article 2 that the state and its organisa - tions, institutions and companies may renounce their immunity from execution. It should be noted that this has a restricted scope, as it applies only to the enforcement of awards rendered in proceedings directly related to international contracts containing such waiver.
128 CHAMBERS.COM
Powered by FlippingBook