05 January 2016

Memorandum on the enforcement of international

arbitral awards in Chile

The purpose of this Memorandum is to address the rules and proceedings applicable to the
enforcement of international arbitral awards issued in Chile.

I. Enforcement provisions under the Chilean International Commercial

Arbitration Act
1.

Articles 35 and 36 of the International Commercial Arbitration Act N 19.971

(ICAA) apply to the recognition and enforcement of all international arbitral
awards, including the awards issued in Chile.

2.

The provisions are identical to Articles 35 and 36 of the UNCITRAL Model Law.
Thus, they closely follow Articles IV and V of the New York Convention on the
recognition and enforcement of foreign arbitral awards.

3.

According to those provisions, the requesting party must provide the original of the
award, duly authenticated or its duly certified copy, as well as the original of the

arbitration agreement or its duly certified copy. If those documents were issued in a
foreign language, a duly certified translation is required (Article 35 ICAA).
4.

Article 36 establishes the conditions under which the request can be denied:
Recognition or enforcement of an arbitral award, irrespective of the country in which it
was made, may be refused only:
(a) at the request of the party against whom it is invoked, if that party furnishes to the
competent court where recognition or enforcement is sought proof that:
(i) a party to the arbitration agreement referred to in article 7 was under some
incapacity; or the said agreement is not valid under the law to which the parties have
subjected it or, failing any indication thereon, under the law of the country where the
award was made; or
(ii) the party against whom the award is invoked was not given proper notice of the
appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to
present his case; or
(iii) the award deals with a dispute not contemplated by or not falling within the terms
of the submission to arbitration, or it contains decisions on matters beyond the scope of
the submission to arbitration, provided that, if the decisions on matters submitted to
arbitration can be separated from those not so submitted, that part of the award which
contains decisions on matters submitted to arbitration may be recognized and enforced;
or

(iv) the composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties or, failing such agreement, was not in
accordance with the law of the country where the arbitration took place; or
(v) the award has not yet become binding on the parties or has been set aside or
suspended by a court of the country in which, or under the law of which, that award
was made; or
(b) if the court finds that:
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the
law of this State; or
(ii) the recognition or enforcement of the award would be contrary to the public policy
of this State.

5.

Articles 35 and 36 provide the substantive requisites that need to be complied with
in order to recognize and enforce an international arbitral awards. They do not
govern procedural issues of the recognition and enforcement proceedings, which
should be governed accordingly by general procedural rules of the Civil Procedural
Code (CPC).

6.

It has been a common ground in Chile that an award issued within the country, does
not need to be recognized in special court proceeding of any kind, but can be rather
directly enforced by first-instance tribunals. Pursuant to Article 134 of the Code of
Judicial Organization, the tribunal competent for entertaining any claim it that of the
domicile of the respondent. This rule should be applicable to enforcement
proceedings.

7.

Nevertheless, we are currently unaware of any enforcement order issued by local

courts under the ICAA.

II. Enforcement options under the Chilean Civil Procedural Code

8.

While the Chilean Supreme Court and the Santiago Court of Appeals have gathered
relevant experience applying ICAA, the first-instance tribunals have not been
exposed to international arbitration matters.

9.

When confronted with a request for enforcement, local tribunals tend to ignore the
ICAA and to resort to the CPC, for procedural as well as for substantive aspects of
enforcement. The tribunals treat international awards local or foreign awards
previously recognized by the Supreme Court as if they were common domestic
awards subject to the CPC only.

10.

We will address the two main ways of obtaining enforcement of an award in Chile,
that is, the incidental enforcement, as well as the enforcement of the award as
execution title. In addition, we will address the possibility of filing a claim for
debt recognition.

III.Incidental enforcement
11.

The enforcement of an award can be achieved through incidental enforcement

(cumplimiento incidental). As a general rule, the incidental enforcement can be
ordered by the same tribunal that issued the decision to be enforced. The request can

be filed within one year from the moment the enforcement has become suitable to
be sought (Article 233 CPC). In other terms, the request can be filed within one
year from the moment the award has become enforceable.
12.

An award issued under ICAA should be deemed enforceable from the moment it is
serviced upon the parties as no ordinary recourses against the award are available.

13.

Even a request for annulment of the award filed under Article 34 of the ICAA, does
not automatically suspend its enforcement.1 The suspension of the enforcement can
be requested by the party that seeks annulment. The court has the discretion to
suspend the enforcement and can order the party to provide appropriate security
(Art. 36 par. 2 ICAA). On one occasion, the Chilean Supreme Court recognized that
a foreign arbitral award was suitable to be executed by an ordinary court in Chile,
notwithstanding to the request for annulment pending in the country of origin.2

14.

So, the incidental enforcement does not require the arbitral award to be firm
(request for annulment may be pending), but only to be executable. This is the main
advantage for the petitioner over the enforcement proceeding explained below (IV).

15.

The incidental enforcement is considered to be a follow-up proceeding with respect

to the main claim. Thus, the procedure is less formalistic and shorter, and the appeal
of the decision on the defenses of the respondent does not suspend the procedure.
The defeated party is able to object to the enforcement based on a limited number of

Pursuant to Article 36 par. 1, the enforcement of the award can be denied if (v) the award has not yet
become binding on the parties or has been set aside or suspended by a court of the country in which,
or under the law of which, that award was made.
2

Supreme Court, Docket N 5.228-2008, 15 December 2009.

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exception mainly related to a possible payment of the debt or execution of a

settlement agreement or for similar reasons (Article 234 CPC).
16.

Articles 635 and 643 of the CPC authorize the arbitral tribunal to order the
incidental enforcement under the condition that its term period has not yet expired.

17.

Usually, the arbitral tribunals term expires shortly after the award is issued. In
domestic arbitration, the parties often extend arbitral tribunals jurisdiction and
authorize it to order the awards incidental enforcement. This would be rather
surprising in international arbitration. In addition, it has to be noted that arbitral
tribunals lack public powers. Thus, they can only order measures that do not require
use of public forces.3 For that last type of measures, for example a debt collection
action, arbitral tribunals are due to request the auxiliary assistance from local courts
(par. 3 Article 635 CPC).

18.

Due to these reasons, it is often preferable to seek enforcement of the award directly
through ordinary courts. In those cases, when the enforcement of a decision is
sought before a different tribunal that the one that issued the decision, the
proceedings to follow are the enforcement proceedings that will be explained below
(par. 2 Article 237).

19.

However, on some occasions, the courts have ordered incidental enforcement of the
awards despite being the original tribunal that issued the award. As an example can
be named the case where the award did not determine the amount to be paid, which

Aylwin Azcar, Patricio, El juicio arbitral, Santiago: Editorial Jurdica, 5th ed., 2005, pp. 404-410.

requires filing a new claim within the framework of incidental enforcement

proceedings (Art. 235, N 6a). This was allowed by the ordinary tribunal, who
followed the incidental enforcement procedure.4
20.

Notwithstanding the above, the regular procedure for the enforcement of awards by
the courts, is the enforcement procedure explained below.

IV. Enforcement proceedings

21.

A final arbitral award is deemed to be an execution title or leave of enforcement,

that can be enforced by way of summary enforcement proceedings (Article 434
CPC). To be deemed an execution title, the award has to be firm (firme y
ejecutoriado), that is, there should be no recourses available against it. As noted
above, to request the incidental enforcement, it is not necessary for the award to be
firm.

22.

As a general rule, the enforcement of a decision that orders the debtor to pay, to do
or to refrain from doing, requested after one year has elapsed, must be conducted as
enforcement proceedings before ordinary courts (par. 1 Article 237 CPC).

23.

This applies when the enforcement is sought before a different tribunal that the one
that issued the decision (par. 2 Article 237). Thus, if the enforcement is sought
before the ordinary court and not the arbitral tribunal that issued the award, the rules
of enforcement proceedings apply.

Civil Tribunal of Santiago N 20, Docket N. 8.247-2015, 31 December 2015.

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24.

The statutory limitation period for requesting the enforcement is of three years from
the moment that the award has become firm, that is, when all recourses for
annulment have been overruled, or the terms to submit the recourses have expired
(Article 442 CPC)

25.

In order to achieve the enforcement, the debt must comply with the following
requirements: to be liquid (meaning, ready for payment) in case of a payment
obligation; to be certain in case of an obligation to perform an action (exigible); and
suitable to be transformed into an obligation to destroy, in case there is an
obligation to refrain from a certain action. At last, the action cannot be barred by
statutory limitation period.

26.

The party subject to enforcement can object to the enforcement on the basis of an
extensive list of objections, which includes: lack of jurisdiction of the enforcing
tribunal; lack of legal standing of the requesting party; inadequacy of the
submission for enforcement; payment of the debt; set-off; nullity of the obligation;
statutory limitation of the debt or of the enforcement action.

27.

However, those objections only can rely on facts that occurred after the award was
issued (par. 3 of Article 237 CPC).5 Usually, the defending party objects on a
number of grounds, which sometimes extends the duration of those proceedings up
to one year.

Casarino, Viterbo, Mario, Manual de derecho procesal, Santiago: Editorial Jurdica, 6th ed., 2007, Vol. V,

p. 138.

28.

If the first-instance tribunal orders enforcement or rejects the request for

enforcement, both parties can appeal its decision, and they can even file a cassation
recourse au fond afterwards.6 The cassation recourse on that matter would be
unusual. The filing of the appeal against the enforcement paralyzes the payment of
the debt to the creditor, but do not stop the auction of the assets. The cassation
recourse does not paralyze the payment, but the Supreme Court may order the
petitioner to issue a monetary warranty.

29.

In both cases, when the plaintiff resorts to incidental enforcement or enforcement

proceedings, Chilean Law establishes different procedures for the payment of an
amount of money, for the execution of other non-monetary obligations, and the
execution of not-to-do obligations. E. g.: If the obligation established in the award is
the signature of a document, the judge may sign the document in defendants
representation, in case he does not fulfill voluntarily.

V. Claim before ordinary courts

30.

An additional third way for award enforcement is to be taken into consideration. In

case the three-year period has elapsed, an ordinary trial can be initiated in the
subsequent two years (Article 2515 of the Civil Code). In that case, the court will be
requested to issue a declaratory judgment confirming the existence of the debt. The

Idem., pp. 63-64.

ordinary proceedings can take up to three years in all instances. After that, the
enforcement of the judicial sentence confirming the award will be requested.

VI. Fraud and simulation

31.

According to Chilean Criminal Law, both fraud and simulation of contract are
considered as different types of fraud (estafa), and criminal action have the same
statutory limitation period, which is five years for simple crimes (Articles 471 N
2 and 94 of the Criminal Code).

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