CHILE Law and Practice Contributed by: Ricardo Rozas, Max Morgan and Stefano Perretta, Jorquiera & Rozas Abogados
• the port of loading or discharge as provided for in the contract of carriage by sea is located in Chile; • the bill of lading or other document evidenc - ing the contract of carriage by sea (such as the sea waybill, through bill of lading or short form bill of lading) stipulates that the contract will be governed by Chilean law (such as through a “paramount clause”); or • one of the optional ports of discharge pro - vided for in the contract of carriage by sea is the actual port of discharge and such port is located in Chile. Accordingly, and as opposed to charterparties, foreign law and jurisdiction clauses stated in bills of lading issued under a contract of carriage of goods by sea should not be recognised and enforced by Chilean courts. In this respect, it is worth noting that paramount clauses have, on occasion, been held as unwritten by the Chilean Supreme Court where they would be contrary to public order rules of law. 6.2 Enforcement of Law and Arbitration Clauses Incorporated Into a Bill of Lading Courts in Chile recognise and enforce law and arbitration clauses of charterparties incorporat - ed into the relevant bill of lading. Nonetheless, a bill of lading issued in compliance with a char - terparty is covered under the Chilean adoption of the Hamburg Rules if it governs the relation between the carrier and the holder of the bill of lading other than the charterer. 6.3 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards Chile is a party to the Convention on the Rec - ognition and Enforcement of Foreign Arbitral Awards, 1958 (the “New York Convention”). In this respect, foreign judgments and arbitral
awards are enforced through the exequatur process. This is considered in the Code of Civil Procedure, under which judgments issued in a foreign country shall be given force in Chile by existing treaties. For a foreign judgment to be enforced, the pro - cedures set out in Chilean law shall be followed, unless they have been modified by existing trea - ties. If there are no treaties concerning the mat - ter in question, Chile shall grant to the judgment the same force as granted to Chilean judgments by the jurisdiction in which the judgment was made. If the judgment comes from a jurisdiction that does not enforce Chilean judgments, it shall not be enforced in Chile. If none of the previous rules may be applied, foreign judgments shall be enforced in Chile provided that: • they contain nothing contrary to the laws of the Republic, except that procedural rules to which the case would have been subject in Chile shall not be considered; • they are not contrary to national jurisdiction; • the party against whom enforcement is sought was duly served with process, except that the party may still be able to allege that, for other reasons, it was prevented from mak - ing a defence; and • they are not subject to appeals or further review in the country of origin. Procedure for Enforcement of a Foreign Judgment A duly legalised copy of the judgment – official - ly translated into Spanish, if necessary – must be presented to the Chilean Supreme Court to begin the exequatur process. In the case of an arbitral award, its authenticity must be certified by attestation of a high court of the originating jurisdiction.
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