1 Legal framework
1.1 What system of jurisprudence applies in your jurisdiction? What implications does this have for litigation?
Chile has a civil law system, greatly influenced by Napoleon's Civil Code. Almost all Chilean legislation is either based on or inspired by continental law.
Thus, until 2000, when the criminal justice system was reformed, all procedures took place within a written system. There was no day in court and there were no oral arguments, except in appeals.
Together with the criminal reform came reforms to Chilean labour law and family law; and today said procedures follow an oral system, with the parties having their respective day in court. However, the civil procedure is still a written system.
The continental tradition means that in Chile, there is no precedent regarding the rulings of superior courts. The lower court is not obliged to follow previous rulings of the superior courts. Thus, the outcome of a decision rests on the specific judge or judges hearing the case. However, precedents do play an important part in lower courts' decisions and are particularly important guidelines on how a lower court judge should rule on a specific subject.
Moreover, the Supreme Court of Chile has no certiorari process through which it can decide which cases are worth hearing. Thus, almost all parties in civil proceedings can eventually appeal to the Supreme Court and have their case reviewed by that court.
1.2 What rules govern litigation in your jurisdiction?
The rules of each procedure are either codified or included in a specific law that sets out the rules under which the court will hear and determine a specific case.
With respect to civil and commercial disputes, the Code of Civil Procedure establishes the rules under which the first-instance courts, the courts of appeals and the Supreme Court must hear and decide a case. The code also applies to all other proceedings if not contrary to the specific rules of those proceeding.
With respect to all other disputes, there are different codes of procedure or law that determine the rules under which a case is tried.
1.3 Do any special regimes apply to specific claims?
Each code of procedure determines the specific rules under which a claim is heard and decided.
The Code of Civil Procedure provides for different types of procedures, depending on certain considerations of the claim itself – that is, the value in dispute and the nature of the subject matter.
The Code of Criminal Procedure provides for different types of procedures, depending on certain considerations of the accusation brought by the district attorney or plaintiff – that is, the type of crime and the conviction being sought.
The Labour Law and the Family Law likewise provide for different proceedings, depending on the actions brought by the plaintiff.
1.4 Which bilateral and multilateral instruments have relevance to litigation in your jurisdiction?
The only instruments relevant to litigation in Chile are the international treaties that deal with the enforcement of foreign judgments (see question 10.2).
2 Judicial structure
2.1 What courts exist in your jurisdiction and how are they structured?
The judicial structure in Chile is divided into three layers. At the bottom, there are several first-instance courts with jurisdiction over one or more districts. In the middle, there are 17 courts of appeals with jurisdiction over a region or part of a region with many districts. At the top is the Supreme Court of Chile, located in Santiago, which exercises jurisdiction over all of the abovementioned courts.
The Supreme Court is divided into four specialised panels on a subject-matter basis. It is responsible for the directive, correctional and economic supervision of most courts, and has national jurisdiction. Moreover, the Supreme Court acts as a court of cassation – that is, it does not re-examine the facts, but only interprets the relevant law.
The courts of appeal are located in Chile's main cities. They act as second-instance courts in most matters. In constitutional proceedings, they act as a first-instance court.
The first-instance courts exercise jurisdiction over one or more districts; in more populated districts, they are divided according to specific matters of law. Thus, there are civil, family, criminal and labour first-instance courts, which exercise jurisdiction over their respective matters of law.
The judicial structure also encompasses:
- courts with limited or special jurisdiction over certain matters of law, such as antitrust, environmental, military and tax; and
- some governmental agencies that act as courts in special proceedings.
2.2 What specialist courts or tribunals exist in your jurisdiction?
The judicial structure also encompasses:
- courts with limited or special jurisdiction over certain matters of law, such as antitrust, environmental, military and tax; and
- some governmental agencies that act as courts in special proceedings.
3.1 What formalities apply before litigation can be commenced in your jurisdiction?
There are no formalities before litigation can be commenced in Chile.
The Chilean Constitution sets forth the right of every person "to file petitions to the authority" and the obligation of the judiciary to adjudicate such petitions. The only requirement for the person commencing litigation is to do so in the proper jurisdiction and in the manner set forth by law.
3.2 Do any pre-action protocols or similar rules apply prior to the commencement of litigation? What are the consequences of non-compliance?
Under Chilean law, there are no pre-action protocols or rules required to commence litigation. However, there are two exceptions to this rule. The first relates to public or private health institutions acting as a defendant in a claim for damages. The parties in such disputes must first enter into mediation; only if the mediation fails can the claimant commence litigation. The second relates to disputes between the administration and contractors regarding public concessions. Before commencing litigation, the parties must submit the dispute to an expert technical panel.
Voluntary pre-action mediation is also provided for in the labour, family and consumer laws. The parties can submit their dispute to mediation, which will interrupt the limitation period of the statute.
Finally, in civil litigation and arbitration, parties are likely to exchange letters to explore the possibility of a settlement.
3.3 What other factors should a party consider before commencing litigation in your jurisdiction?
The first factor to consider – whether in civil and/or commercial litigation – is the court's jurisdiction. The subject matter of the claim will determine the precise court in which the claim should be filed.
However, a specific claim could have more than one court with jurisdiction to hear the claim, as the Chilean jurisdiction rules and labour procedural laws in some cases allow for the claimant to choose the jurisdiction.
The second factor is the statute of limitations (see questions 3.2 and 4.1).
The third factor is whether interim measures will be requested before the commencement of litigation. If so, the Code of Civil Procedure requires that the claimant provide a bond to secure future damages caused to the defendant (see question 4.6).
4 Commencing litigation
4.1 What rules on limitations periods apply in your jurisdiction?
There are several statutes of limitations, depending on the complaint brought by the plaintiff. For example:
- contractual civil complaints have a five-year statute of limitations;
- commercial complaints have a four-year statute of limitations; and
- tort complaints have a four-year statute of limitations.
In criminal proceedings, the statute of limitations will depend on the nature or type of crime. For example:
- misdemeanours have a six-month statute of limitations;
- felonies have a five-year statute of limitations; and
- crimes have a 10-year statute of limitations.
In non-criminal proceedings, the statute of limitations can be waived by the defendant if not raised as an affirmative defence.
4.2 What rules on jurisdiction and how this is determined apply in your jurisdiction?
The court will determine whether it has jurisdiction over a claim by following the rules of competence set forth in the Chilean Courts Statute.
The court's competence – that is, the legal ability to hear and adjudicate a case – is often defined by:
- the subject matter in litigation;
- its economic value; and
- the venue or location of the contract or the thing being disputed.
The subject matter will determine whether the civil courts, family courts, criminal courts or labour courts will have jurisdiction to hear and adjudicate the case.
The elements that will determine the appropriate judicial district in which to file a claim include:
- the domicile of the defendant;
- the main office of a company;
- the location of real estate; and
- the location where a contract is executed.
Once a case has commenced in a competent court, all other courts lose competence over that case. Thus, the question of competence must be raised by the defendant in its first presentation.
4.3 Are class actions permitted in your jurisdiction?
Yes, but only for specific matters of law. Before 2004, Chilean law did not permit class actions. Today, class actions are permitted in consumer protection cases brought under the Consumer Protection Law, the Antitrust Law and the Urban Planning and Construction Law.
The courts must rule on the admissibility of the collective action. The only specific requirement for this type of claim is that claimant be one of the following:
- the National Consumer Service;
- a consumer association; or
- a group of consumers (at least 50 people for actions brought under the Consumer Protection Law and six under the Urban Planning and Construction Law) with a question or law or fact that is common to the group.
For the general requirements, see question 4.4.
The recent reform of the Antitrust Law allows for collective actions seeking damages to be filed with the Antitrust Court, under the rules set forth in the Consumer Protection Law.
4.4 What are the formal requirements for commencing litigation?
The plaintiff must file a complaint in writing in compliance with Article 254 of the Code of Civil Procedure. Article 254 requires the plaintiff to state in a complaint:
- the court in which the claim is being filed;
- the plaintiff's full name, address and profession. If the plaintiff is being represented by another person, the complaint must also state that person's name and the nature of such representation;
- the name, address and profession of the defendant;
- the facts and legal grounds of the claim; and
- the request for the relief being sought.
The Code of Civil Procedure does not require that any evidence be filed with the complaint.
4.5 What are the procedural and substantive requirements for commencing litigation?
First, the plaintiff must file a claim in the Judicial Virtual Office – the judicial website for the filing of claims and presentations by parties. The claim will be randomly assigned to a specific court in the district in which it was filed. The court to which the claim is assigned will then review it and rule on its admissibility. If ruled admissible, the claim will then be served on the defendant.
It is only with service of the claim that the proceeding starts; and the defendant will be given a specific timeframe in which to file its response and counterclaim.
4.6 Are interim remedies available in your jurisdiction? If so, how are they obtained?
In Chile, a claimant can request interim remedies before and during trial. These are used to alter or preserve the status quo, depending on the circumstances – particularly where the defendant must halt its action to prevent possible injustice and irreparable harm to the claimant.
For these motions to be granted, the claimant must show:
- a likelihood of prevailing on the merits, by filing evidence to support its claim; and
- that it would suffer irreparable injury if relief were not granted.
If requested before trial, the court will require a bond from the claimant to cover any damages that may result from the request for interim remedies.
The Code of Civil Procedure provides for the following remedies:
- seizure of disputed property;
- appointment of a financial controller;
- seizure of assets; and
- cease and desist orders.
In addition, a judge may order other remedies if necessary.
4.7 Under what circumstances must security for costs be provided?
The defendant cannot file to obtain a sum of money from the plaintiff as security for costs. Nevertheless, a bond may be required by the court to cover any damages that may result from the request for interim relief (see question 4.6).
5.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply to certain types of documents?
There are no rules relating to disclosure under Chilean law.
However, there are some rules pertaining to disclosure, which also provide for the imposition of sanctions on a party that fails to comply with a court order. These rules vary depending on the specific subject matter of the proceedings (eg, civil, labour, criminal).
Under the Code of Civil Procedure, a party may request the court to compel the opposing party to produce certain documents by showing that the documents are directly related to the case and are not secret or confidential. This request may be filed before or during trial. If requested before trial, there is an additional requirement: the requesting party must show that this is a previous and necessary step to commence litigation. If a party does not comply with the court order, it will forfeit the right to produce those documents at a later stage of the proceedings.
Under the Labour Code, the parties may file the same request and must comply with the same requirements. If a party fails to produce the documents requested without justifiable cause, the facts that the opposing party is seeking to prove on the basis of those documents will be considered proven as a matter of law.
Under the Code of Criminal Procedure, the district attorney for the Public Prosecution Ministry can assert the confidentiality of certain evidence for a maximum of 40 days. However, the defendant can ask the court to order the district attorney to produce the evidence or to limit the period of confidentiality.
5.2 What rules on third-party disclosure apply in your jurisdiction?
Documents may be obtained from a third party if they are directly related to the case and are not secret or confidential.
A party must request the court to order a third party to produce specific documents, stating the grounds for such request. If the third party does not comply with the court order, the party may request sanctions.
5.3 What rules on privilege apply in your jurisdiction? Does attorney-client privilege extend to in-house counsel?
In civil cases, there are rules on privilege regarding documents and witnesses. With regard to documents, there is a general rule of confidentiality, which allows a party to object to the opposing party's request to produce documents on grounds of confidentiality. For example, it could assert attorney-client privilege to avoid producing documents that are subject to such privilege.
With respect to witnesses, there are specifics rules on privilege in relation to the following:
- fourth-degree relatives;
- communications to clergymen; and
There has been no ruling by the Supreme Court with respect to attorney-client privilege extending to in house counsel.
5.4 How have technological advances affected the disclosure process in your jurisdiction?
Since 2007, and pursuant to Article 348bis of the Code of Civil Procedure, parties and third parties can file electronic documents (ie, emails and all sorts of electronic files).
All electronic files must be presented or shown to the court in a hearing so that the relevant documents can be introduced as evidence. The opposing party will be given a period in which to analyse and object to the documents if necessary.
5.5 What specific considerations should be borne in mind during the disclosure process, for both plaintiff and defendant?
The party seeking disclosure must specify in its request the direct relationship between the document for which disclosure is sought and the subject matter of the case. Moreover, the party seeking disclosure must establish in its request that the request does not pertain to confidential documents.
The opposing party can always object to the request and buy some time to produce the requested documents and avoid sanctions.
6.1 What types of evidence are permissible in your jurisdiction?
In civil proceedings, the evidence permissible in court is established in the Civil Procedure Code. Said Code determines the evidence admissible in court and the procedure under which it must be produced by the parties.
In criminal, labour law and family law proceedings, all evidence is permitted if it is relevant to the case.
6.2 What rules apply to expert evidence in your jurisdiction? What specific considerations should be borne in mind when preparing and presenting expert evidence?
Civil proceedings: In civil proceedings, the parties cannot present expert opinions as such. The parties may introduce an expert witness, but he or she will not be considered as an expert by the court. Under the Code of Civil Procedure, an expert introduced by a party as a witness is just a witness.
To obtain an expert opinion under the Code of Civil Procedure, a party must request the court to appoint an expert accordingly. After assessing the relevance of the expert's evidence, the court will set up a hearing to appoint the expert and determine the scope of his or her opinion. The request must be presented to the court as a pre-trial motion or in the evidentiary stage. In its request, the party must state the scope of the opinion and the scientific, technical or other specialised knowledge that the expert should possess.
Once appointed by the court, the expert must accept the appointment and set up a hearing. At this hearing, the parties must make their observations on the scope of the opinion and present the evidence relevant to this opinion. The expert must give his or her opinion in writing and the parties will have a three-day period in which to object to it or make observations.
Criminal proceedings: In criminal proceedings, experts are introduced as witnesses. The parties may call for as many expert witnesses as they see fit. However, the court can exclude some or all of them under the exclusionary rules set forth in the Code of Criminal Procedure.
In labour and family law proceedings, the parties can request the court to appoint an expert under the same rules as in civil proceedings.
6.3 What other factors should be borne in mind when preparing and presenting evidence in your jurisdiction?
Generally, the parties should introduce all evidence in the evidence stage, which lasts for 20 business days. However, the Code of Civil Procedure allows for various extensions to this period, depending on the circumstances and the evidence that is sought to be introduced.
Thus, it is fundamental for a party's case to be fully prepared for this 20-day period before it commences, in order to file all motions and requests necessary for the evidence to be introduced.
Under the Code of Civil Procedure, parties cannot directly interrogate the witnesses, but must direct their questions through the judge. Moreover, all questions must be written down by the court clerk before being asked. These limitations make interrogations less dynamic and make it more difficult for the parties to fully cross-examine a witness.
7 Court proceedings
7.1 What case management powers do the courts have in your jurisdiction?
In civil proceedings, the court has little or no case management powers. Once the proceedings commence with service of the claim on the defendant, the court has no power to suspend or stay the proceedings, unless a party requests this on specific grounds.
However, in the evidentiary stage and under certain circumstances, the court has the power to set dates for new witness hearings if a witness fails to appear at the original hearing date.
In criminal, labour and family proceedings, a pre-trial hearing is held for purposes such as the following:
- to determine the evidence that the parties will present in trial;
- to rule on motions to exclude evidence; and
- to ask the parties about stipulations of facts.
The pre-trial hearing is a prior and necessary step for trial.
7.2 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?
All hearings are public under Chilean law.
However, the contents of specific proceedings – that is, the evidence and presentations by parties – may be confidential to non-parties. For example, this is the case in criminal and family law proceedings. In antitrust proceedings, the parties may request that certain documents be kept out of the public record and be accessible only to the parties.
7.3 How is the applicable law determined? What happens in the event of a conflict of laws?
It is for the claimant to state the applicable law in its case and for the defendant to challenge that statement as applicable. However, given the Chilean rules of jurisdiction, before hearing a case, a court must determine whether the subject matter of the dispute is within its jurisdiction. If not, the court must rule that it has no jurisdiction over the dispute, even in the absence of a motion filed by a party.
7.4 What rules apply to the joinder of third parties?
The Code of Civil Procedure provides that an interested party can join ongoing litigation:
- to support the claimant or defendant's case;
- to assert an independent claim, different from that of the parties; or
- to oppose the parties' claims.
In all cases, the law provides that the third party must accept the status of the proceedings, meaning that it cannot request the court to nullify or void anything that has previously been done in those proceedings.
In the joinder motion, the third party must assert its reason for joining the proceedings and its standing to do so.
As the third party is then part of the proceedings, the judgment will affect it in the same way as it does the plaintiff and defendant.
7.5 How do the court proceedings unfold in your jurisdiction? What specific considerations should be borne in mind at each stage of the process, for both plaintiff and defendant?
Civil proceedings: Civil proceedings are divided into four parts. The first is the pleading stage, which starts with the claimant filing its claim. The defendant then has a short timeframe in which to file its response to the complaint. Each party then has an even shorter period to submit one more written presentations stating additional legal reasons to support or oppose the claim, respectively.
Once the pleading stage is over, the court will set a date for a settlement hearing. This hearing is mandatory for the process to move forward. Usually, the hearing is just a formality and agreement is seldom reached.
The second stage is the evidence stage, during which the parties submit to the court all evidence to support their case (eg, witnesses, documents, expert opinions). To commence this stage, the court must render a decision on the disputed issues of the material facts of the case – that is, the facts that are legally relevant to a claim regarding which the parties have a genuine disagreement. The parties can ask the court to reconsider this decision and can even appeal if a reconsideration petition is dismissed. The appeal will not stay the proceedings.
This period is noticeably short – just 20 business days. However, in most cases the court will set new dates for witness hearings and any other hearing that will involve third parties, expert opinions and relevant evidence that must be submitted to the court.
The court will skip this stage if there are no genuine issues of material fact rather than of law, or if the defendant accepts responsibility.
The third stage is the judgment stage, during which the court will make its final decision.
The fourth stage is the post-judgment stage. The parties can appeal the first-instance judgment to the court of appeal of the district in which they are litigating. A party that disagrees with the decision of the court of appeal can then file an annulment petition with the Supreme Court.
In civil proceedings, the parties have a very short period in which to file presentations and evidence. Thus, it is of fundamental importance to start preparation for trial before commencing litigation with regard to the relevant facts and evidence.
Criminal proceedings: Criminal proceedings also involve four stages. The first is the investigation, in which the district attorney investigates the alleged crime. The district attorney can request an arraignment hearing, at which the defendant will be informed of the charges and the investigation period will be set. Moreover, the district attorney and/or the claimant can request that the defendant be detained or be subject to one or more less restrictive measures.
The second stage commences once the investigation has closed. The district attorney has a specified period in which to determine whether to:
- file a complaint;
- not proceed with the case; or
- ask the court to dismiss it.
The victim and the defendant can file their own motions – that is, motions which oppose that filed by the district attorney. The court will set a date to hear and decide on the motions filed by the parties. If the defendant is going to trial, the court will set a pre-trial hearing and rule on each preliminary motion that the parties have filed.
The third stage is the trial, which ends with a judgment rendered by the criminal court.
The fourth stage is the post-trial stage, during which one or both parties can file an annulment petition, asking the court of appeal or the Supreme Court to render the judgment void.
Labour law and family law proceedings: Labour law and family law proceedings also have four stages. The first stage starts with the complaint. The defendant will be served with this complaint and will be given the opportunity to file a response.
The second stage is the pre-trial hearing, at which the court will rule on the motions filed by the parties and set a trial date.
The third stage is the trial, which ends with a judgment rendered by the court.
The fourth stage is the post-trial stage. In labour law proceedings, one or both parties may file an annulment petition, asking the court of appeal or the Supreme Court to render the judgment void. In family law proceedings, the parties can appeal the judgment of the first-instance court. A party that disagrees with the decision of the court of appeal can then file an annulment petition to the Supreme Court of Chile.
7.6 What is the typical timeframe for the court proceedings?
In civil and commercial proceedings, depending on the type of proceedings, a case can last from three to seven years.
In criminal proceedings, a case can last from six months to four years.
In labour law and family law proceedings, a case can last from one to two years.
8 Judgment and remedies
8.1 What types of judgments, orders and other remedies are available in your jurisdiction?
The available judgments, orders and other remedies available in Chile are:
- interim remedies;
- interlocutory judgments; and
- final judgments.
With respect to interim remedies, see question 4.6.
With respect to interlocutory judgments, these are non-final and are made between the time of filing and before a final judgment is issued. Such rulings decide non-final issues in dispute. However, some interlocutory judgments result in the end of litigation, such as:
- a motion to dismiss on grounds of jurisdiction; and
- a pending litigation defence – that is, an ongoing proceeding with the same parties and the same subject matter.
Final judgments resolve all issues in dispute and settles the parties' rights with respect to those issues.
9.1 On what grounds may a judgment be appealed in your jurisdiction?
In civil and commercial proceedings, the parties have the right to appeal if an error of law or error of fact was made by the first-instance court and this error wrongly influenced the decision. The Code of Civil Procedure allows the parties to appeal at several points of the proceedings, and not just the final judgment: the parties can appeal decisions on interim measures, jurisdiction and all other decisions not barred by law. Family law proceedings follow the same rules.
In criminal and labour law proceedings, few decisions can be appealed, as the rulings of the lower courts are generally not reviewable under appeal by the superior courts. However, the parties can request that the superior court nullify and void a judgment or part of the proceedings on the grounds of due process or error of law that wrongly influenced the final decision.
9.2 What is the appeals process? Is the judgment stayed while the appeal is pending?
Generally, if an appeal is filed against a judgment, the proceeding will be stayed. This is also true of a request to nullify and void part of the proceedings in criminal and labour law.
On the contrary, an appeal against another court's decision will not stay the proceedings, unless provided for by law or ordered by the court of appeals.
9.3 What specific considerations should be borne in mind during the appeals process, for both plaintiff and defendant?
In Chile, there is no rule of precedent regarding the rulings of the superior courts. The lower court is not obliged to follow previous rulings of the superior courts. Thus, the outcome of a decision rests on the specific judge or judges who hear the case. However, precedents do significantly influence the decisions of the lower courts and are particularly important guidelines as to how lower court judges should rule on a specific subject.
Moreover, the Supreme Court has no certiorari process through which it decides what cases are worth hearing. Thus, almost all parties in civil proceedings can eventually appeal to the Supreme Court and have their case reviewed by that court.
With respect to criminal and labour law proceedings, a request to nullify and void the judgment or part of a proceeding can be heard either by the court of appeals or by the Supreme Court. In this case its decision will be final.
10.1 How are domestic judgments enforced in your jurisdiction?
Domestic judgments are enforceable before the same court that rendered the judgment or another court with jurisdiction.
The claimant must ask the court that rendered the judgment to start a special enforcement procedure to enforce it. This must be requested within one year of the date on which the judgment was rendered or the final decision on appeal was issued.
If the request is submitted more than one year but less than three years after the judgment was rendered or the final decision on appeal was issued, the claimant can petition any court with jurisdiction to assist in the enforcement procedure through the liquidation of sums, the application of fines and the order of police assistance if necessary.
10.2 How are foreign judgments enforced in your jurisdiction?
Foreign judgments will be recognised and enforced by the courts of Chile, without re-examination of the issues, under the following circumstances:
- If Chile has entered into a treaty with the country in which the judgment was issued, that treaty will apply.
- If there is no such applicable treaty, the rule of reciprocity will apply – that is, substantial reciprocity of treatment will be assured as regards enforcement in that country of similar judgments issued by similar courts of Chile. Thus, if the country in question enforces Chilean judgments, the Chilean courts will enforce the judgments of its courts. If no enforcement is granted to Chilean judgments in that country, the same rule will apply to the judgments of its courts in Chile.
If neither of the above rules applies, a foreign judgment will be enforceable in the same way as a Chilean judgment as long as the following requirements are met:
- The foreign judgment is not contrary to Chilean law. The procedural rules of the relevant country will not be taken into consideration in this regard;
- The foreign judgment is not in violation of Chilean jurisdiction;
- The judgment debtor was duly served with the process. If the judgment debtor can prove breach of due process, this requirement will not be met; and
- The judgment is final and conclusive, and no appeals are pending against it.
The petitioner must file an exequatur petition with the Supreme Court requesting enforcement of the judgment. This will start the exequatur proceedings, which will end with a Supreme Court ruling either granting or denying enforcement of the foreign awards.
10.3 What specific considerations should be borne in mind during the enforcement process, for both plaintiff and defendant?
A defendant can present several defences to the enforcement claim. Thus, the enforcement proceedings may take more than six months before the judgment creditor can collect the sum due to it. This allows the defendant more time to make financial preparations to pay the sum due.
However, the plaintiff can ask the court to seize moveable property or real estate belonging to the defendant. If this request is granted, the relevant assets will no longer be under the defendant's control. This could make it more expedient for the defendant to settle and pay the sum due.
11 Costs, fees and funding
11.1 What costs and fees are incurred when litigating in your jurisdiction?
Chilean law distinguishes between the costs of the procedure and representation costs.
With respect to the costs of the procedure, these will include the following:
- service of process;
- summons and certain rulings of the court;
- the costs of obtaining an expert opinion; and
- all other costs incurred due to the process.
With respect to representation costs, these comprise attorneys' fees only.
In principle, the courts can order the losing party to pay the costs of the litigation, which can include both procedure and representation costs. In practice, however, the courts seldom award costs to the prevailing party.
11.2 Are contingency fees and similar arrangements permitted in your jurisdiction?
Yes. Moreover, there are no limitations to fee arrangements under Chilean law.
11.3 Is third-party funding permitted in your jurisdiction?
Third-party funding is not regulated under Chilean law. Thus, there are no particular rules or limitations on third-party funding.
Moreover, in recent years, third-party funding has become one of the many solutions available to fund litigation where the claimant does not possess the means to commence and sustain litigation.
11.4 What other strategies should parties consider to mitigate the costs of litigation?
As there is no legal obligation for the plaintiff to provide security for costs and costs are seldom awarded to the prevailing party, the costs of litigation in Chile are relatively low.
12 Trends and predictions
12.1 How would you describe the current litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
The legislature is soon to pass a law that will change litigation in Chile forever. The law will provide for virtual hearings, allowing for the entire trial to take place on a virtual platform from anywhere in the world.
A reform of the civil procedure system is also underway. However, this reform will not become law for at least the next four years.
13 Tips and traps
13.1 What would be your recommendations to parties facing litigation in your jurisdiction and what potential pitfalls would you highlight?
In civil and commercial disputes, if a party is facing litigation as either plaintiff or defendant, the most important recommendation is to prepare thoroughly before commencing litigation. This is especially true for the defendant, as it has only a short period of time to file its response to the complaint. Thus, the defendant's attorney should prepare thoroughly for the complaint in order to successfully represent his or her client.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.