CHILE Law and Practice Contributed by: Andrés Jana, Rodrigo Gil, Francisco Grob and Victoria Demarchi, Jana & Gil Dispute Resolution
tiago Court of Appeal, Case No 9134-2007 dated 4 August 2009, rejecting ground No 2 (b)(ii) of Article 34 of the ICAL). Therefore, in relation to ground No 2 (b)(ii) concerning public policy, the court of appeal has understood that it must point to the infringement of the most basic and essential rules of the Chilean state – the simple invocation of local public policy not being sufficient. In the context of public policy, it is essential to differ - entiate between domestic public policy and interna - tional public policy. International public policy applies specifically to international commercial arbitration and encompasses only the most fundamental principles of a legal system, rather than all local regulations. Con - sequently, objections based on procedural formalities outlined in civil procedure codes or court organisation - al statutes should be dismissed, unless they concern the core foundational principles of Chile’s legal frame - work. This approach has been consistently applied by Chilean courts (see, for example, Santiago Court of Appeal, Case No 9134-2007 dated 4 August 2009; Santiago Court of Appeal, Case No 1971-2012 dated 9 September 2013; and Santiago Court of Appeal, Case No 11466-2015 dated 28 June 2016). 13. Miscellaneous 13.1 Class Action or Group Arbitration Chile does not provide for class action arbitration or class arbitration. 13.2 Ethical Codes The Code of Professional Ethics of the Chilean Bar Association, in force since 1 August 2011, applies in the case of affiliates. In the case of non-affiliates, since 2012 it has been possible to find Supreme Court rul - ings defending the theory that the 2011 Code of Pro - fessional Ethics applies to all lawyers in Chile. 13.3 Third-Party Funding Chilean law does not provide any rules or restrictions
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 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
for third-party funding. 13.4 Consolidation
The ICAL does not provide a specific regulation with regard to consolidating separate arbitral proceedings.
227 CHAMBERS.COM
Powered by FlippingBook