CHILE Trends and Developments Contributed by: Hernán Fleischmann, Paulo Román, Benjamín Jordán and Juan Zulic, Fleischmann & Román Abogados
The Law on International Commercial Arbitration 9 September 2024 was the 20th anniversary of the entry into force of Law No 19971 on Inter- national Commercial Arbitration (the “LACI”). According to the history of that legislation, the bill was the joint initiative of the Chilean Bar Association, the Arbitration and Mediation Cen- tre of the Santiago Chamber of Commerce and the Arbitration and Mediation Centre of the Chil- ean-North American Chamber of Commerce. The LACI closely follows the Model Law of the UN Commission on International Trade Law. When it was submitted to the Chilean Chamber of Deputies, it was stipulated that it was aimed at helping Chile take a prominent place as a centre of arbitration in international commerce, espe- cially in Latin America. In order to achieve that (along with other pro- posed objectives) the LACI took up the principle of minimum intervention of state courts in arbi- tral disputes subject to the LACI. Essentially, the principle was that in the matters regulated by the LACI, no court would be able to intervene unless otherwise stipulated. The jurisdiction of state courts in international commercial arbi- tration is specific and restricted. It is therefore limited to providing assistance and supervising the arbitration. In terms of the means of challenging an arbi- tral award, the LACI clearly states that only an appeal of annulment may be brought against it on the grounds (and according to the specific requirements) set out in Article 34. The jurisdic- tion of the Court of Appeals hearing the appeal is therefore limited to examining or reviewing the existence of the grounds and the facts of the case.
However, it is of no use to have robust and strict legislation or regulations on international com- mercial arbitration if they, and the principles that support them, are not respected by the entities called upon to enforce them and make them operational: the Chilean state courts. It seems that, over the two decades that the LACI has been in force, that the Chilean state courts (and specifically, the Courts of Appeals (courts that have jurisdiction to hear the appeal of annul- ment of the LACI)) have correctly enforced the rules of the LACI and respected the principles governing it. The judgment handed down by the Court of Appeals of Santiago on 25 January 2024 is illus- trative of this. In its judgment the Court of Appeals said: “To this effect, it should be considered that the higher courts have understood that the Law 19.971 incorporates into national law the most widespread and uniform international arbitra- tion statute among the countries that practice international trade. In addition, it is necessary to establish that this law constitutes a regula- tory statute that includes different principles of private international law, which characterise international commercial arbitration as an auton- omous statute different from domestic arbitra- tion. It should also be noted that these principles include the presumption of validity of the award and the fact that the limit of legitimacy and effec- tiveness of the jurisdictional decision is given by the international public order, which conceptu- ally differs from the national public order.” This is not an isolated judgment. Since the LACI has been in force, the Courts of Appeals have not accepted appeals for annulment filed against international awards. Their intervention,
280 CHAMBERS.COM
Powered by FlippingBook