CHILE Law and Practice Contributed by: José Miguel Valdivia, Juan Francisco Sánchez, José Tomás Blake and Tomás Izquierdo, Valdivia Legal
10. Grounds 10.1 Scope of Judicial Review: Merits v Process Courts are prohibited from examining the merits of an administrative decision. Their role is instead to assess whether the proper procedures were followed in the making of the decision. 10.2 Constitutional Challenge Chile has a written Constitution and it is possible to challenge an administrative decision because it is inconsistent with the Constitution. This type of challenge requires a writ to be filed with the Constitutional Court, demonstrating that, in a specific case, a legal provision produces an unconstitutional effect due to the unique cir - cumstances involved. The filing of this writ also pauses the primary trial before the courts. Nota - bly, the claimant, the defendant and the judge all have legal standing to file for this writ. 10.3 Procedural Errors It is possible to bring a challenge to a govern - ment decision on the basis that the decision- maker did not follow the relevant procedure for that decision. Challenging a government decision because the administrative decision- maker did not adhere to the relevant procedural requirements is the most common form of public law litigation in Chile. This is not only possible but is also one of the most effective grounds for a trial in public law litigation. 10.4 Factual Errors It is possible to challenge a government deci - sion on the basis that the administrative deci - sion-maker made an error of fact. However, trials based on these grounds tend to be less effec - tive than those based on procedural require - ments. Some proceedings lack a proper evi - dence phase, making it difficult for the claimant
to demonstrate the existence of an error of fact. With the exception of gross mistakes, where the decision-maker’s error is evident, this basis does not provide strong grounds for claims. In highly technical matters, such as trials against administrative agencies like the Superintend - ency of Electricity and Fuels, a case is unlikely to be won solely on the basis of factual errors. In contrast, claims based on factual errors tend to be stronger before specialised courts, such as those handling environmental and antitrust dispute resolutions. These forums often pos - sess the expertise necessary to consider and evaluate factual errors than general courts more effectively. 10.5 Abdication or Fettering of Discretion It is possible to bring a challenge because the decision-maker has abdicated or fettered their discretion. Gross omissions are also typically subject to litigation. In cases where the decision- maker has wholly abdicated their discretion, individuals may seek remedy through a consti -
tutional writ. 10.6 Bias
Unless decision-maker bias can be labelled as a factual error or unequal treatment, the efficacy
of such a claim remains weak. 10.7 Unequal Treatment
Unequal treatment is a valid basis for contesting administrative decisions. However, the burden of proof is elevated in these cases. The claimant must demonstrate that different treatment has been accorded to individuals in similar circum - stances, thereby highlighting the inconsistency in the decision-making process.
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