CHILE Law and Practice Contributed by: Andrés Jana, Rodrigo Gil, Francisco Grob and Victoria Demarchi, Jana & Gil Dispute Resolution
13.3 Third-Party Funding Chilean law does not provide any rules or restrictions
only be part of arbitration prior to its consent and the consent of the actual parties to the agreement. How - ever, there are some exceptions to this rule. A third party may be bound by an arbitration agreement that has been assigned to it by law, as occurs in legal sub - rogation and succession cases. Other exceptions are cases where the corporate veil or alter ego theory is applicable. Both comparative law and national jurisprudence have extended the application of the arbitration clause to non-signatory third parties under certain assumptions related to: • cases in which the non-signatory assumes or comes to occupy the place or legal position of one of the contracting parties; and • cases in which the initial contracting parties are maintained but a non-signatory third party is incor - porated – for example, through the stipulation in favour of a third party, the lifting of the veil of legal personality, the group of companies, estoppel, or the “own acts” doctrine. In these cases, there would not properly be a viola - tion of pacta sunt servanda or of the relative effect of contracts, as they assume that those who are affected by an arbitration clause have consented to it in some way. The jurisprudence of the Supreme Court has been mainly in line with the general rule in Chile of not extending the arbitration agreement or the award to third parties, mainly on the basis of the relative effect of the contracts (Supreme Court, Case No 29,699- 2014). Recent Jurisprudence However, some Chilean jurisprudence leads to the conclusion that it is possible to impose the arbitra - tion agreement on a non-signatory party in view of the circumstances of the case, with substantive elements prevailing over the formal element of the absence of the non-signatory party. By way of example, in relation to the application of the arbitration clause to a non- signatory that participated in a bidding process but did not sign the arbitration clause, the court of appeal has ruled to reject the legality of the argument for dis -
for third-party funding. 13.4 Consolidation
The ICAL does not provide a specific regulation with regard to consolidating separate arbitral proceedings. Notwithstanding the foregoing, in view of the power granted to the arbitral tribunal to decide the arbitration in the manner it deems appropriate in the absence of agreement of the parties (Article 19 of the ICAL), it may be understood that it would be possible to consolidate separate proceedings for the purpose of efficiency. As regards arbitral institutions, the ICC Rules specifi - cally regulate this subject matter. Thus, Article 10 of the ICC Rules provides that the court may – at the request of a party – consolidate two or more arbi - trations pending under the ICC Rules into a single arbitration, if: • the parties have agreed to consolidation; or • all of the claims in the arbitrations are made under the same arbitration agreement or agreements; or • the claims in the arbitrations are not made under the same arbitration agreement or agreements, but: (a) the arbitrations are between same parties; (b) the disputes in the arbitrations arise in connec - tion with the same legal relationship; and (c) the court finds the arbitration agreements to be compatible. Furthermore, it is possible to identify a similar rule in the CAM Santiago Rules, which recognise the power of the arbitral tribunal to adopt all relevant measures for the valid, effective and prompt conduct of the arbi - tration (Article 19 of the CAM Rules) in order to avoid unnecessary delays and to ensure efficient and fair means of resolving the dispute (Article 21 of the CAM Rules), which also could include this faculty if it is efficient and if the parties have not agreed otherwise. 13.5 Binding of Third Parties The general rule under Chilean law is that third parties or non-signatories to an arbitration agreement or to the contract that contains the arbitration agreement are not bound by such agreement or by the award issued in the arbitration proceeding. A third party may
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