Frequently Asked Questions
When is an arbitration considered international?
According to Law Number 19.971, an arbitration is considered international if: a) The parties that have agreed to have an arbitration have, at the time of that agreement, their establishments in different States, or b) One of the following places is located outside of the State in which the parties have their establishments: i) The place of arbitration, if it has been determined in the arbitration agreement or pursuant to the arbitration agreement; ii) The place of performance of a substantial part of the obligations of the commercial relationship or the place with which the object of the dispute has a closer relationship, or c) The parties have expressly agreed that the matter object of the arbitration is related to more than one State.
On the other hand, if one of the parties has more than one office, the office will be the one that has a closer relationship with the arbitration agreement; and if a party does not have any office, their habitual residence will be taken into account.
When is an arbitration considered commercial?
According with Law Number 19,971, the expression “commercial” must be interpreted in a broad sense so that it encompasses all the issues that arise in relationships of this nature, contractual or not. These include, for example, any commercial operation of supply or exchange of goods or services, distribution agreement, representation or commercial mandate, transfer of credits for collection, leasing of capital goods with option to purchase, construction of works, consulting, engineering, licensing, investment, financing, banking, insurance, operating agreement or concession, business associations and other forms of industrial or commercial cooperation, transport of goods or passengers by air, sea, rail or byroad/highway.
Can an international arbitration tribunal decide on its own jurisdiction?
The international arbitral tribunal has the power to decide on its own jurisdiction, including on the exceptions relating to the existence or validity of the arbitration agreement. For this purpose, an arbitration clause that is part of a contract will be considered as an independent agreement from the other terms of the contract. The decision of the arbitration tribunal deciding that the contract is null shall not ipso jure imply to the nullity of the arbitration clause.
Are the seat and place of arbitration the same?
The seat is a legal concept, while the place of arbitration is a concept that refers to a physical space. The seat of an arbitration influences the domestic courts that will support the arbitration (for instance the Court of Appeals of a given city, upon hearing a petition for annulment) and the law applicable to the case. In the other hand, the place of arbitration refers to the place where the arbitral tribunal may meet to either hold deliberations among its members, to hear witnesses, experts or parties, to examine merchandise consignments or other property or documents.
What remedies proceed again the international arbitral award?
Against an international arbitration award, only the request for annulment before the respective Court of Appeals is admissible, which can only be interposed three months from the date of receipt of the award or, if the petition has been made in accordance with Article 33 of Law Number 19971 (correction and interpretation of the award and additional award), from the date such request has been resolved by the arbitration tribunal.
Who are the mediators of the CAM Santiago?
The mediators’ team within the nominee of the CAM Santiago are renowned professionals, who have been brought up and trained in collaborative conflict resolution mechanisms; they have significant experience in the field of commercial conflicts. You can learn about their profiles by visiting our nominee section.
Is it necessary to have previously included a mediation clause in a contract to request this mechanism from the CAM Santiago?
As in the case of arbitrations and dispute boards at the CAM Santiago, in the face of a civil or commercial conflict, the parties may jointly request the initiation of mediation. Although it is not necessary that the clause has been previously included in a contract, you must have the consent of the other party for the mediation process to be carried out.
How to include mediation of the CAM Santiago in a contract?
If the parties are drafting a contract and decide to consider the mediation clause, it is important to keep in mind our recommended model clause and, also to keep in mind that, even in the case of a multi-tiered clause, when agreeing a mediation, the parties agree in good faith to discuss any disagreements that may occur, before filing contentious actions. In this way, an concrete instance of dialogue is established between the parties.
Is it necessary for the parties to be represented by an lawyer in a CAM Santiago mediation?
The parties may attend the mediation sessions by themselves, without the need for an attorney to represent them. Mediation, unlike a Court trial, where legal representation prevails, is developed considering the leading role of the parties and their personal appearance in the process, without prejudice to the advice of their lawyers. Therefore, it is recommended, to the extent possible, to attend the first hearing, with the people directly involved in the conflict, accompanied by their lawyers, who will help them negotiate and make an informed decision regarding their rights and legal obligations.
How does a mediation process unfold at the CAM Santiago?
Mediation is a process of dialogue and therefore consists of stages that unfold in succession. The mediator, depending on the type of conflict, may hold joint or individual hearings.
In general terms, in the first stage, the mediator will inquire the interests of the parties, the objectives and the alternatives of each party. This elements will be analyzed to finally propose the different alternatives to reach an agreement.
The CAM Santiago has Rules of Mediation, which establishes the rules according to which the processes will carry out, and a Code of Ethics, where the guiding principles of the mediation procedure are found.
It is important to keep in mind that any questions that may arise about the process can be directed to the mediator, who will help resolve the parties' concerns. No decision during the mediation process will be adopted, without the mediator confirming that the parties have all the necessary information to take it.
What is the juridical value of the parties agreement resulting from a mediation?
Once the parties have reached an agreement, the parties and the mediator will write a document that sets the rights and obligations that each of them assumes within this agreed solution. If the parties wish, this document will be transcript into a public deed, taking the form of a transaction contract, or another figure, depending on the need of the case. It is important to note that, in Chile, for a transaction to be considered as an enforceable instrument, it must be formalized in a public deed.
What is the status of the Singapore Convention on the Mediation in Chile?
The CAM Santiago has constantly followed the process of negotiations of the United Nations Convention on International Settlement Agreements Resulting from Mediation. The text of the Convention was adopted by the United Nations General Assembly on 20 December 2018 (A / RES / 73/198) and Chile signed the Convention along with 46 other States on 7 August 2019.
Chile has not yet ratified the Convention, due to the fact that although the signature is an exclusive attribution of the President of the Republic (article 32 N ° 15 of the Political Constitution of the Republic), the Executive must send a project to be approved by the Chilean Parliaments (article 54 of the Chilean Constitution) as a prior step to depositing the instrument of ratification with the United Nations.
What are the objectives of the Dispute Boards at the CAM?
Our objective is to offer the community a highly qualified, efficient and effective mechanism aimed at the prevention and early resolution of disputes, in medium to long-term execution projects with high technical content, as well as contributing to the promotion of a culture of collaboration and dialogue whenever carrying out business.
What type of Dispute Boards are found in the Rules of Dispute Boards of Santiago CAM?
Our Dispute Board Regulations cover Dispute Review Boards (DRB), Dispute Adjudication Boards (DAB) and Combined Dispute Boards (CDB).
The DRBs provide early informal assistance to discrepancies or disputes and issue Recommendations related to them. Upon receiving a Recommendation, the parties may voluntarily abide by it.
The DABs provide early informal assistance in discrepancies or conflicts and issue Decisions related to them. A Decision is binding on the parties from the moment it is received and is understood to be part of the contract. The parties must comply without delay even if there is a manifestation of disagreement.
The CBDs provide early informal assistance in disputes or controversies and issue Recommendations or Decisions.
What role does the CAM play in relation to Dispute Boards?
The CAM fulfills three essential functions for the proper functioning of the system. First, it has the authority to appoint the members of the Dispute Board, in the event that the parties fail to reach agreement on such members or on the Chairman of the Dispute Board within the periods established in the Regulations or in the contract. Second, the CAM resolves conflicts that arise over the requirements of impartiality and independence of the members of the Dispute Board and about their fees. Third, the CAM must keep an updated version of the Rules and standard clauses available to the public, along with a list of experts to be nominated and offer its facilities and infrastructure for the development of hearings and other actions that are requested.
How can the parties agree on a Dispute Boards at the CAM?
The parties may agree to the application of the Dispute Boards Regulation through a clause in the contract or through any expression of will to this effect quoted in a subsequent agreement. In the referred agreement, the parties must establish whether the Dispute Board is a DRB, a DAB or a CDB. If the parties do not indicate anything about it, it is understood that a DRB was agreed.
Where did Dispute Boards originate?
According to Christopher Koch, the first Dispute Board was implemented in 1975 at the Eisenhower Tunnel Project in Colorado (United States) and the first international use of a Dispute Board took place at the El Cajon Dam Project in Honduras in 1981.
What has the Competition Court (TDLC) stated in Chile?
In use of the powers and duties conferred by Article 18 N ° 4 of DL 211 issued on the 12 of March of 2020, in its Proposal for Normative Modification N ° 20/2020 (ERN 26–2018) on the Regulation for Contracts of Public Works, the Competition Court suggested to the President of the Republic, via the Chilean Minister of Public Works, the dictation or modification of the legal or regulatory precepts related to the bidding of public works’ contracts, including the recommendation to incorporate an early dispute resolution mechanism between the client and the winner of the contract.