CHILE Law and Practice Contributed by: Andrés Jana, Rodrigo Gil, Francisco Grob and Victoria Demarchi, Jana & Gil Dispute Resolution
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 interest and also regulates the determination of arbi - tration fees. The ICAL recognises the principle of competence- competence, stating in Article 16 (1) that the arbitral tribunal may decide on its own jurisdiction, even if exceptions arise concerning the existence or validity of the arbitration agreement. This recognition of the principle of jurisdiction comes from domestic arbitration. In domestic arbitration law, there is no explicit provision that confirms the com - petence-competence of an arbitral tribunal. Nonethe - less, Chilean courts acknowledge that arbitral tribu - nals (just like local courts) are entitled to decide issues relating to their own jurisdiction. Consequently, where a party commences an arbitral proceeding in apparent breach of an arbitration agreement, the matter shall be submitted to the decision of the arbitral tribunal – given that such tribunal is the authority entitled by law to rule on its own jurisdiction. 5.2 Circumstances for Court Intervention Jurisdiction of Arbitral Tribunal If, as a preliminary matter, the arbitral tribunal declares itself to have jurisdiction (see 3.2 Arbitrability ), either party – within 30 days of receipt of notice of such decision – may request the president of the respective court of appeal to resolve the matter, and the decision of this court will be final. This rule does not apply in cases where the arbitral tribunal, as a preliminary mat - ter, declares that it has no jurisdiction. 5. Jurisdiction 5.1 Challenges to Jurisdiction
In general, appellate courts are reluctant to intervene in jurisdiction matters (see 5.1 Challenges to Juris- diction ). Negative Rulings on Jurisdiction The respective court of appeal could address issues of jurisdiction of an international arbitral tribunal if a party asks for an international arbitral award to be set aside. Nonetheless, there are no cases in which a court of appeal has reviewed a negative ruling on jurisdiction by an arbitral tribunal. 5.3 Timing of Challenge In international arbitrations, objections to jurisdiction must be raised in advance of or together with the statement of defence. A plea that the arbitral tribunal exceeds the scope of its authority must be raised as soon as the matter that is allegedly beyond the scope of the tribunal is raised during the arbitral proceed - ings. In either case, the tribunal may admit a later plea if it considers the delay justified (Article 16 (2) of the ICAL). Once the award is rendered by the arbitral tribunal, parties can challenge the jurisdiction of the arbitral tribunal before the respective court of appeal. 5.4 Standard of Judicial Review for In cases where a party commences court proceedings in breach of an international arbitration agreement, the national courts’ approach is to refer parties to arbitra - tion, unless the agreement is null and void, inoperative or incapable of being performed. There is therefore a general reluctance of national courts to allow such proceedings. 5.6 Jurisdiction Over Third Parties There are no specific rules in Chilean domestic or international arbitration law with regard to the effects of the assignment of an agreement that contains an arbitration clause to a third party. Parties to an assign - ment are therefore well advised to specifically agree that the arbitration clause will also be part of the assignment. Jurisdiction/Admissibility See 11.1 Grounds for Appeal . 5.5 Breach of Arbitration Agreement
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