CHILE Trends and Developments Contributed by: Hernán Fleischmann, Paulo Román, Benjamín Jordán and Juan Zulic, Fleischmann & Román Abogados
in compliance with the LACI, has been limited to the review of the strict grounds that authorise the filing of such an appeal, thereby preventing appeals for annulment from becoming a second instance, in which the facts and the law applied in the award are reviewed once again. However, the attempts to declare the ineffi- ciency of international awards in a non-explicit way through the appeal of a complaint can- not be ignored. In simple terms the appeal of a complaint in Chile is a means of challenge, extraordinary and disciplinary in nature, which applies in those cases in which there has been a serious violation or abuse in the delivery of a final or interlocutory judgment, which is not subject to any other appeal, whether ordinary or extraordinary. In some instances, this type of challenge has been brought against Courts of Appeals judges who rejected appeals of annulment filed to chal- lenge an arbitration award. The complaint, which in this case is heard by the Supreme Court, seeks to invalidate the decision that rejected the appeal so that the appeal of annulment is upheld in the subsequent decision of the highest court. The Supreme Court previously refused to accept appeals filed in these cases. The Supreme Court based its reasoning on the LACI itself, which the Supreme Court deemed established that annul- ment is the only appeal against an international award. The Supreme Court stated “this case will not be accepted since, in accordance with the provisions of Article 34 of Law 19.971, an arbi- tral award may only be appealed before a court through an appeal of annulment to be heard by the respective Court of Appeals, from which it transpires that the legislator intended for the resolutions issued by such courts while trying
the appeal may not be subject to review (case No 62.114-2016, CS)”. Notwithstanding this, an unenforceability action is currently pending before the Constitutional Court. The action, in simple terms, seeks to declare Article 34 of the LACI (where it states that only an appeal of annulment may be filed against an international arbitration award) unen- forceable. The unenforceability action was filed by one of the parties that filed an appeal against the judgment of the Court of Appeals of Santiago (which rejected the appeal of annulment). The unenforceability action was filed with the Constitutional Court prior to the Supreme Court’s ruling on the admissibility of the appeal of the complaint filed. This has given rise to a wide-ranging debate in Chile. There are those who believe that this path calls into question the principle of minimum intervention. Some have even described it as a sort of “guerrilla tactic” which, if successful, “will only discredit our arbitration regulations in the international community” (Romero Seguel, Ale- jandro: Las Tácticas de Guerrilla en el arbitraje), Santiago, El Mercurio Legal, 15 April 2024). The Constitutional Court will have to rule on the unenforceability action filed, which, if accept- ed, will only effect the particular case in which unenforceability is sought, ie, in the venue of the admissibility of the appeal filed against the judges of the Court of Appeals of Santiago (who rejected the annulment of the award) and which is currently pending before the Supreme Court. Prohibition of Unjust Enrichment On 22 August 2024 in case No 28.402-2024, the Supreme Court upheld a judgment issued by the Court of Appeals of Chillán, which ratified the
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