CHILE Law and Practice Contributed by: Andrés Jana, Rodrigo Gil, Francisco Grob and Victoria Demarchi, Jana & Gil Dispute Resolution
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 - regarding it – given that, at the time of participating in the process, it accepted the existence of the clause and consented to it (Santiago Court of Appeal, Case No 1886-2011). Nevertheless, there is also jurisprudence of the Supreme Court in the sense of not extending the arbitration clause to third parties because it would otherwise be an infringement of the relative effect of the contracts (Supreme Court, Case No 29699-2014). No special rule has been found in Chilean law regard - ing the capacity of the national court to bind foreign third parties.
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 29699- 2014).
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