Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
Private international law is generally understood to mean the body of legal rules governing the rights and duties of the citizens of sovereign states towards the citizens of other sovereign states. In Chile, as in other nations, it also comes into play in international cases in efforts to determine judicial jurisdiction, →choice of law and the effect given to a foreign judgment. Importantly, such norms may also apply when the Chilean state acts in a private capacity, for example, through state-owned corporations. As such, Chile’s system of private international law includes the analysis of international judicial jurisdiction, applicable law, recognition of rulings and judgments, and international legal cooperation.
Sources of private international law in Chile are both internal and conventional, including substantive, mandatory and conflict-of-law regulations.
1. National law
The fundamental grounds for private international law in Chile can be found in: (i) arts 10 and 19 of the Constitution of the Republic of Chile, latest version published in the Official Gazette on 22 September 2005 (henceforth Constitution) on nationality and the fundamental rights of all persons; (ii) among others, arts 14–18, 57, 60, 135, 955, 997, 998, 1027, 1028, 1716, 1718 and 1723 of the Civil Code of Chile, newest version published in the Official Gazette on 16 May 2000 (henceforth CC), which regulate the →territoriality of Chilean law, personal status and legal capacity, property, acts and contracts, successions, wills and prenuptial agreements; (iii) among others, arts 76, 242–51, 345, 362, 411 and 860 of the Code of Civil Procedure of Chile, published in the Official Gazette on 30 August 1902 (henceforth CCP) on international letters rogatory and exequatur in general; (iv) arts 5, 6, 100, 106–20, 174 and 425 of the Criminal Code of Chile, published in the Official Gazette on 12 November 1874; (v) among others, arts 13, 20bis and 431–54 of the Code of Criminal Procedure of Chile, published in the Official Gazette on 12 October 2000, regarding active and passive extradition; (vi) arts 80–4 of Law 19.947 on Civil Matrimony, published in the Official Gazette on 17 May 2004, which regulates both →marriage and divorce (→Divorce and personal separation); (vii) among others, arts 1, 6, 53, 148, 149 and 420 of the Organic Court Code of Chile, published in the Official Gazette on 9 July 1943, on international judicial jurisdiction; (viii) arts 5, 19 and 20 of the Labour Code, published in the Official Gazette 16 January 2003; (ix) among others, arts 64, 113, 114, 869 and 931 of the Commercial Code, published in the Official Gazette on 23 November 1865; (x) Decree Laws 1.094 on the Entry and (Conditions of) Stay of Foreigners in Chile, published in the Official Gazette on 19 July 1975, and 2.349 on International Contracts in the Public Sector, published in the Official Gazette on 13 October 1978; (xi) arts 33–5 of Law 19.620 on the Adoption of Minors, published in the Official Gazette on 5 August 1999; (xii) Law 19.971 on International Commercial Arbitration, published in the Official Gazette on 29 September 2004; (xiii) arts 121–24 of Law 18.046 on Corporations, published in the Official Gazette on 22 October 1981; (xiv) arts 4, 6, 16, 29, 46 and 88 of DFL 251 on Insurance Companies, published in the Official Gazette on 22 May 1931; and (xv) arts 299–326 of Law 20.720 on cross-border insolvency, published in the Official Gazette on 9 January 2014, among others.
p. 1As a general rule, custom is not considered law unless the law itself calls for such recognition. In the area of international commerce, custom (→lex mercatoria) may be construed as law even in the absence of formal regulations.
2. Conventional law
Chile has signed and ratified a number of international treaties on private international law, including the following:
General Regulations: the Havana Convention of 1928 (adopted on the Sixth Panamerican Conference on International Private Law, Havana, Cuba, 1928), and 437 arts of the Convention on private international law or ‘Bustamante Code’ (Bustamante Code on Private International Law of 20 February 1928, OAS, Law and Treaty Series, No 34) and the corresponding annex. In 1932, the National Congress of Chile approved the Convention, noting the following reservation: ‘for Chilean law, in relation to disputes arising between foreign and Chilean legislation, the provisions of the current or future legislation of Chile shall supersede said Code, should disagreement between such bodies of law arise’. This broad reservation – expressly prohibited by art 3 of the Convention – limits the scope of the Code’s application to the following cases: (i) where Chilean law does not provide conflict-of-law rules for a particular subject, or refers to international treaties or the ‘principles of international law’; (ii) where domestic conflict of law regulations are consistent with the provisions of the Code; and (iii) where conflicts between foreign laws arise.
United Nations (UNCITRAL): the CISG (United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods, 1489 UNTS 3); the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3); the Hamburg Rules (United Nations Convention of 31 March 1978 on the carriage of goods by sea, 1695 UNTS 3).
OAS (CIDIP): the Inter-American Bills of Exchange Convention (Inter-American Convention of 30 January 1975 on conflict of laws concerning bills of exchange, promissory notes and invoices, OAS, Treaty Series, No 40; 1438 UNTS 211); the Inter-American Checks Convention 1975 (Inter-American Convention of 30 January 1975 on conflicts of laws concerning checks, 1438 UNTS 234); the Inter-American Arbitration Convention (Inter-American Convention of 30 January 1975 on international commercial arbitration, 1438 UNTS 249); the Inter-American Letters Rogatory Convention (Inter-American Convention of 30 January 1975 on letters rogatory, 1438 UNTS 283); the Inter-American Taking of Evidence Abroad Convention (Inter-American Convention of 30 January 1975 on the taking of evidence abroad, 1438 UNTS 385); the Inter-American Powers of Attorney Convention (Inter-American Convention of 30 January 1975 on the legal regime of powers of attorney to be used abroad, 1438 UNTS 263); the Inter-American Foreign Law Convention (Inter-American Convention of 8 May 1979 on proof of and information on foreign law, 1439 UNTS 111); the Additional Protocol to the Inter-American Letters Rogatory Convention (Additional Protocol of 8 May 1979 to the Inter-American convention on letters rogatory, OAS, Treaty Series, No 56; 1438 UNTS 283); the Additional Protocol to the Inter-American Taking of Evidence Convention (Additional Protocol of 24 May 1984 to the Inter-American convention on the taking of evidence abroad, OAS, Treaty Series, No 65; 24 ILM 472); the Inter-American Convention of 23 May 1992 on Mutual Assistance in Criminal Matters (OAS, Treaty Series, No 75), deposited by Chile on 28 May 2004; and the Inter-American Convention on Extradition of 1933, published in the Official Gazette on 19 August 1935, among others
→The Hague Conference on Private International Law: the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89); and the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and co-operation in respect of inter-country adoption, 1870 UNTS 167; 32 ILM 1134).
MERCOSUR: Agreement on Cooperation and Mutual Court Assistance in Civil, Commercial, Labor and Administrative Proceeding among the State Parties of MERCOSUR and the Republic of Bolivia and the Republic of Chile (2002), published in the Official Gazette on 7 August 2009, among others.
III. p. 1International jurisdiction
The drafters of Chilean law have not dealt expressly with the international jurisdiction of Chilean courts. The gap has been primarily filled through the application of international treaties in force in Chile and certain principles of international law recognized by the Supreme Court of Justice. This has allowed, depending on the subject matter or the position held by certain individuals, for an extension or limitation of the jurisdiction of Chilean courts in a number of civil cases of an international nature. Limits on the powers of Chilean courts to act stem fundamentally from: (i) the provisions on jurisdictional immunity and enforcement contained in public international law; (ii) regulations in international treaties ratified by Chile that are applicable to conflicts between nationals and foreigners; and (iii) a set of domestic regulations that limit the powers of domestic courts and/or grant them the power to hear cases involving foreign matters.
For example, in Holzmann v Gainsborg (1950) and again in Cortés Delgado y otros v Maruha Corporation (2007), the Supreme Court of Chile ruled that ‘to resolve any matters of international jurisdiction … one first needs to determine whether there are any international treaties in place with the country of which the litigant is a national or in which he is domiciled; [and], second, the provisions of domestic law. In the absence of the latter, one must turn to the general principles of International Law in consonance, naturally, with the requirements of domestic legislation’.
As a result, the jurisdiction of Chilean courts may be extended or restricted based on international treaty, domestic law or agreement between the parties (→choice-of-law agreement).
The →nationality of the plaintiff or the respondent is not an element that alone determines international jurisdiction (art 57 CC), except in cases of jurisdictional →immunity. Chile has signed and ratified the Vienna Convention on Diplomatic Relations of 18 April 1961 (500 UNTS 95) and the Vienna Convention on Consular Relations of 24 April 1963 (596 UNTS 261).
Pursuant to Chile’s domestic legislation (art 134 Organic Court Code), the respondent’s domicile (→Domicile, habitual residence and establishment) determines the court of competent jurisdiction.
In cases of →succession, the final domicile of the deceased governs jurisdiction (arts 148 and 149 Organic Court Code), although for tax purposes a probate ruling must always be requested from a Chilean judge when the proceedings involve property located in Chile (art 27 of Law 16.271 on Inheritance Tax, Allowances and Grants, published in the Official Gazette on 10 July 1965).
In uncontested proceedings, the petitioner’s domicile determines the competent jurisdiction.
Unless otherwise stipulated by the parties, tort cases are to be governed by the law of the place in which the negligence or fault giving rise to them occurred (arts 168 and 172 Bustamante Code).
In conventional law, the →place of performance of the obligation or alternatively the defendant’s domicile or place of residence (art 323 Bustamante Code) is the determining factor, unless otherwise stipulated by the parties.
In bankruptcy proceedings, international jurisdiction is determined by the domicile of the insolvent party.
With regard to real actions on movable, immovable or mixed property (→Property and proprietary rights), international jurisdiction is determined by the court of the property’s location (arts 324–26 Bustamante Code). In the case of movable property, should it prove impossible to ascertain the location, the competent court is that of the respondent’s domicile.
A choice-of-law agreement may be used by the parties to establish freely, expressly (art 321 Bustamante Code) or tacitly (art 322 Bustamante Code), the ordinary or arbitration court that has standing to hear a private international matter. Chilean law acknowledges the full validity of such submissions in arts 16(2) and 1545 CC; art 113, final paragraph of the Commercial Code, arts 1 et seq DL 2349 (1978) on International Contracts in the Public Sector and art 7 of Law 19.971 on International Commercial Arbitration. Moreover, art 318 Bustamante Code states that choice-of-law or venue agreements are valid provided they meet the following requirements: (i) at least one of the litigants is a national of or has their domicile in the contracting state to which the judge belongs; (ii) such choice of law is not banned in the country of choice; (iii) where real or mixed actions involving immovable property are concerned, the law of the location of such property must permit choice of law; and (iii) in cases of appeal, jurisdiction will not be granted to a court different from the one to which the first instance trial court is subordinated.
p. 1Up to 1999, the Supreme Court held that Chileans were generally precluded from choosing other fora due to the provisions of art 1462 CC, which deems such agreements void on the grounds that they involve illegal subject matter (see SCS of 25 January 1999). However, in that year, the Court reversed its position (see SCS of 14 May 2007 in State Street Bank and Trust Company v Inversiones Errázuriz Ltda. y otros; SCS of 22 January 2008 in Hochschild SACI v Ferrostal AG; and SCS of 28 July 2008 in Marlex Limitada v European Industrial Engineering, among others), acknowledging the validity of such agreements and the submission to foreign ordinary judges and arbitrators solely in the case of international contracts (DL 2349, Code of Private International Law/Law 19.971 on International Commercial Arbitration, Inter-American International Commercial Arbitration Convention, New York Convention).
IV. Applicable law
1. Principle of territoriality in Chilean law
The fundamental choice-of-law rule on which the entire Chilean system of private international law rests is found in art 14 CC, which provides that: ‘The law is binding upon all inhabitants of the Republic, including foreigners’. As such, the provision considers any person or property in Chile, and any acts that take place within the territory, to be subject to Chilean jurisdiction with the exceptions set forth by law that allow for the application of Chilean law abroad and vice versa.
2. Application and proof of foreign law
Domestic law does not regulate the matter of the application and proof of foreign law. Both doctrine and jurisprudence with rare exception agree that foreign regulations are ‘law’. Nonetheless, it is incumbent on the parties to prove their content and invoke such norms in court.
Article 1 of the 1985 bilateral Convention on the Application of and Information on Foreign Law between Chile and Uruguay, published in the Official Gazette on 21 October 1985, states that: ‘The judges and authorities of the Parties, when so established by their conflict-of-law provisions, shall be obligated to apply foreign law in the same fashion as would the judges or administrative institutions of the originating State of such law.’ The Convention further states that domestic judges must ‘apply foreign law in the fashion most analogous to the way the judge in the country of origin would apply such norm’.
The interpretation preferred here is that while foreign regulations constitute ‘law’ for the purposes of proving such statutes and their application, they are not ‘facts in issue’. Indeed, as seen above, judges are obliged to apply this body of law in the same manner as would a judge in the place of origin, that is, as if it were their own →lex fori. This requires that judges assimilate or incorporate the foreign law into their own legal system. The legal consequences of such logic are as follows: (i) judges must apply the foreign law in the same manner as would their peers in the state of origin of the foreign body of law – as such, Chilean judges must consider not only the applicable statutes, but also doctrine and jurisprudence in force in the foreign state; (ii) foreign law, in its capacity as a ‘fact not at issue’, is not an object of the litigation and therefore does not necessarily need to be argued and proved in the proceedings. This does not mean that the parties may not provide such evidence – indeed, they may. However, should they choose to abstain from such presentation, their case will not be enervated, as the obligation to incorporate the foreign statutes falls primarily on the judge. In fact, the judge is required to apply foreign law sua sponte, and as such the parties need not argue, and far less present evidence of such law. They need only accredit the ‘facts in issue’ in the case; (iii) appeals to the Supreme Court lie on substantive grounds of interpretation and application of the law (recurso de casación en el fondo).
Article 411 CCP states that ‘reports may also be heard from expert witnesses: … (2) On points of law with regard to foreign legislation’.
Further, foreign law as evidence is addressed in arts 408 ff Bustamante Code. As has been seen, since these provisions are not contrary to existing domestic Chilean statutes, they are fully applicable in local courts. Article 408 states that: ‘The judges and courts of each contracting State shall, when appropriate, apply ex officio the laws of the others, without prejudice of the probative means referred to in this chapter’. Article 409 further notes that ‘[a] party that invokes the application of the law of any contracting State in one of the others, or that dissents therefrom, may prove the text, force, and meaning by means of certification from two practising attorneys in the country whose legislation is involved, which must be duly legalized p. 1previously’. Article 410 Bustamante Code states that: ‘In the absence of proof or if the judge or court should, for any reason, deem the proof insufficient, the judge or court may, on his or its own motion, before ruling, request by diplomatic means that the State of origin of the legislation in question provide a report on the text, force and meaning of the applicable law’. Finally, art 411 of the Code indicates that ‘each contracting State shall be obligated to provide to the others, in the shortest timeframe possible, the information referenced in the preceding article and said information shall emanate from the Supreme Court or any of its chambers or divisions, the Office of the Attorney General, or the Secretariat or Ministry of Justice’.
Finally, it is important to note that Chile has ratified the Inter-American Foreign Law Convention.
3. Form in acts and contracts
The form taken by acts and contracts shall be governed by the place in which they were signed. That is, the principle of lex locus regit actum is respected (art 17 CC: ‘the form of public instruments shall be governed by the law of the place in which they have been granted’; art 1027 CC: ‘Written wills granted in a foreign country shall be valid in Chile if the formalities are effected in keeping with the laws of the country in which it is granted and, furthermore, the authenticity of said document is proven in the ordinary form’; art 80 Law 19.947 on Civil Matrimony: ‘The requirements of substance and form for →marriage shall be those established by the law where it is performed’).
4. International contracts and international commercial arbitration
Chilean law does not define the concept of an ‘international contract’.
Pursuant the CISG, which has been ratified by Chile, contracts are deemed international when the ‘places of business’ of the parties are located in different states.
Insofar as the applicable law is concerned with regard to the effects of a contract, in Chile the general principle is that of free will. As such, the parties are free to execute choice-of-law clauses (arts 1545 and 16(2) CC; Decree Law 2.349 on International Contracts in the Public Sector; art 113 Commercial Code; art 166 Bustamante Code; see <www.poderjudicial.cl>: SCS, Rol 2349-2005, to 14 May 2007/SCS, Rol 5228-2008, to 15 December 2009). Absent such a clause, the effects of the contract are governed by the law of the place where performance occurs (art 16(3) CC).
International commercial arbitration (→Arbitration, international commercial) is regulated in Chile in alignment with Law 19.971 on International Commercial Arbitration. These statutes faithfully reflect the provisions of the 1985 UNCITRAL Arbitration Model Law (United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration as adopted on 21 June 1985 and as amended on 7 July 2006, UN Doc A/40/17 and A/61/17; →Arbitration, (UNCITRAL) Model Law). Moreover, the New York Convention and the Inter-American Arbitration Convention have also been ratified by Chile and supplement the preceding regulations.
5. Property (goods and rights)
Article 16(1) CC states that: ‘Property located in Chile shall be governed by Chilean law, even if the owner is foreign and does not reside in Chile’. This provision is applicable to all forms of property, whether tangible, intangible, movable or immovable.
Article 106 Bustamante Code provides that: ‘For the purposes of the preceding article concerning corporeal movables and commercial paper of any kind, account shall be taken of their ordinary or normal situation’. Article 110 Bustamante Code further states that: ‘In the absence any other rule, and also for cases not provided for in this Code, movable things of all kinds shall be understood to be situated at the domicile of their owner or, in the absence thereof, at that of the holder’. Concessions ‘are presumed to be situated at the place where they have been legally obtained’ (art 109 Bustamante Code), industrial or intellectual property rights ‘are considered situated at the place where they have been officially registered’ (art 108 Bustamante Code), property offered as pledge ‘is deemed situated at the domicile of the person in whose possession it has been placed’ (art 111 Bustamante Code) and credit rights are governed by ‘the place where they must be paid, and if that has not been established, then at the domicile of the debtor’ (art 107 Bustamante Code).
6. p. 1Personal statute: personal status and capacity
The applicable regulations on →personal status and capacity are contained in arts 14 and 15 CC.
Pursuant to these provisions, Chilean nationals are subject to Chilean law on personal status and capacity irrespective of their place of residence or domicile, whether domestic or foreign, when such status or capacity produces effects in Chile. These regulations also apply with regard to the rights and obligations stemming from family relations involving spouses and Chilean relatives.
a) Personal status
To ascertain the applicable law in cases of →personal status under Chilean law, it must first be determined whether the person resides in Chile. The personal status of persons who inhabit Chile, whether nationals or foreigners, residents or transients is always governed by Chilean law (art 14 CC). Chilean law does not recognize the personal status of foreign persons, ie the law governing a foreigner’s personal status in their country of origin is not applicable in Chile. Naturally, however, foreigners may register marriages and/or births under Chilean law with the competent authorities. Although a personal status may have been validly acquired abroad, its effects are always governed by Chilean law when the persons are in Chile. To determine the personal status of those persons who do not inhabit Chile, ie individuals in other countries, →nationality must be identified. If the person is a Chilean national, the formation and expiration of their personal status will always be governed by Chilean law. In the case of Chilean nationals, the effects will also be governed by Chilean law with regard to the ‘rights and obligations stemming from family relations involving their spouse and Chilean relatives’ (art 15 (2) CC). In the case of foreign nationals, domestic law makes no reference to applicable law and, as such, the provisions of the Bustamante Code apply.
To determine the applicable law on capacity in Chile’s legal system, we must ascertain whether the individual is an inhabitant. For inhabitants, whether foreign or Chilean, residents or transients, capacity will always be governed by Chilean law (art 14 CC).
To determine the applicable law on capacity for those who are not inhabitants of Chile, that is, persons who are abroad, we need to ascertain the nationality of the parties and where the effects of the act or contract will occur. For Chilean nationals, capacity shall be governed, as a general rule, by the laws of their location, unless the act executed will ‘produce effects in Chile’. In this case, the applicable statute is art 15(1) CC. In turn, the capacity of foreigners who do not inhabit Chile will always be governed by foreign law, even when the act will produce effects in Chile.
In all cases in which domestic Chilean law remains silent with regard to personal status or capacity, including among others: (i) the capacity of foreigners overseas; (ii) the capacity of Chilean nationals abroad who execute acts that will not produce effects in Chile; (iii) the effects of the personal status of Chilean nationals abroad that do not involve familial ties to a spouse or Chilean relatives, the applicable law is the Bustamante Code. In this regard, the Bustamante Code contains two fundamental provisions: arts 27 and 7. The former states that ‘the capacity of individual persons shall be governed by their personal law’. To ascertain what personal law applies, art 7 indicates that ‘each contracting State may apply as personal those laws on nationality, domicile or those adopted or that may be adopted in the future in their domestic legislation’. This suggests that each state may apply the system of private international law its domestic law deems as such.
In Chile, →marriage is defined as ‘a solemn contract by means of which a man and a woman unite currently and indissolubly for the rest of their lives with the purpose of living together, procreating and caring for each other’ (art 102 CC).
In terms of the formal and substantive requirements, marriage is governed by lex loci. As such, a marriage effected abroad in keeping with the laws of that forum, provided it is between a man and a woman (see <www.poderjudicial.cl>: SCAS, Rol 6787-2010, to 9 December 2011, and STC, Rol 1881-10-NA, to 3 November 2011), produces the same effects in Chile as if it had been performed on Chilean soil (art 80(1) Law 19.947 on Civil Matrimony; and art 41 Bustamante Code). Therefore, in p. 1terms of the formalities, a marriage celebrated abroad pursuant to the laws of that forum is valid in Chile even if, under Chilean law, the marriage would be void. Equally, a marriage celebrated abroad in violation of the laws of the forum in which it is performed is void in Chile even if the formalities of Chilean law were met.
That said, Chilean law does not recognize the validity of →same-sex marriages celebrated abroad or those in which the free, spontaneous consent of the bride or groom was absent, even when such marriages are performed in full compliance with the laws of the corresponding forum (art 80(2) Law 19.947 on Civil Matrimony).
Capacity to marry in Chile is governed exclusively by Chilean law, independent of the nationality and domicile of the prospective spouses (art 14 CC). Although in general, marriages performed abroad are governed by the law of that land, independent of the nationality of the parties (art 80(1) Law 19.947 on Civil Matrimony), in order to be deemed valid in Chile, they must further comply with domestic law on absolute bars to marriage (arts 5, 6 and 7 Law 19.947 on Civil Matrimony).
The effects of marriages performed in Chile are governed by Chilean law, even if the prospective spouses are foreigners and do not reside in Chile (art 81 Law 19.947 on Civil Matrimony). If the marriage is performed abroad, it must be determined whether the prospective spouses are located in Chile or abroad and, if abroad, whether they are Chilean nationals or foreigners. With regard to spouses located in Chile, Chilean law applies even if the marriage was performed abroad (art 14 CC). With regard to spouses residing abroad, Chilean law applies to the Chilean national(s) insofar as art 15(2) CC states that domestic legislation applies to the civil obligations and rights of all Chileans, independent of their domicile or place of residence abroad, with regard to the rights and obligations stemming from family relations involving their spouse and Chilean relatives.
Chilean legislation currently envisages three systems for the management of marital assets: community property, complete separation of marital property and shared marital property profits. Community property is the legal standard and default.
Chilean law governs the system of property management for all marriages performed in Chile, irrespective of the spouses’ nationality or the location of the property (art 14 CC). As a general rule, for marriages performed abroad, Chilean law automatically provides that they be deemed performed with complete separation of marital property. In other words, unless the marriage is registered with the competent authority in Santiago and the spouses select one of the other two property management systems available (art 135(2) CC), then the marriage will be recorded as having been effected with separation of property.
Divorce is governed by the law applicable to the marriage at the time the papers are filed (art 83 Law 19.947 on Civil Matrimony). The law governing both divorce and annulment of a marriage (→Divorce and personal separation) will also apply to its effects (art 84 Law 19.947 on Civil Matrimony).
Whereas the annulment of marriages performed in Chile must comply with domestic law (art 14 CC), the annulment of marriages performed abroad may be requested based on the laws of the forum in which it was effected or Chilean law. The latter is possible if the parties were subject to an absolute bar to marriage contained in Chilean law or if free and spontaneous consent to marry was absent.
Finally, with regard to alimony, Law 19.947 on Civil Matrimony provides that the partner domiciled in Chile may claim maintenance from the other spouse in a Chilean court and in keeping with Chilean law. Similarly, a partner residing abroad may claim such support from the other spouse living in Chile (art 82 Law 19.947 on Civil Matrimony).
International spousal support obligations are governed by the UN Maintenance Convention 1956 (United Nations Convention of 20 June 1956 on the recovery abroad of maintenance, 268 UNTS 3 and 649 UNTS 330). The Convention establishes no applicable substantive regulations, but rather provides for international cooperation among authorities in the various contracting parties to ensure expedient processing of support petitions. The procedure involves communication between two central authorities, a transmitting authority responsible for forwarding the information required and a receiving authority that processes the request in keeping with that state’s internal law. In Chile, the International Office of the Corporación de Asistencia Judicial acts as both transmitting and receiving authority and oversees all aspects of the application of the p. 1Convention (see <www.poderjudicial.cl>: SCS, Rol 2343-2006, to 16 November 2006/SCS, Rol 2002–2005, to 26 May 2009/SCS, Rol 4943-2000, to 5 December 2001).
→Succession – both testate and intestate – is governed by the law of the last domicile of the deceased (arts 955 CC and 144 Bustamante Code). As such, should the deceased have died while living abroad, the laws of that country will govern the succession. There are two exceptions to this rule: first, in both testate and intestate cases, where there are Chilean legatees (spouse or relatives), they may invoke domestic law on recognition of heirs and the share of the inheritance to which they may be entitled (art 15(2) CC); and, second, if the deceased is a foreigner who dies intestate, the Chilean legatees may exercise the same inheritance and spousal support rights that would be afforded to them under Chilean law had the deceased been a Chilean national. Further, if the deceased left property in Chile, the legatees may exercise their rights to the property in-country and may request that it be assigned to them preferentially. The same rule applies in the case of succession of a Chilean national who leaves property abroad (art 998 CC).
Wills granted in Chile are governed by Chilean law, independent of the nationality or domicile of the deceased or the heirs (art 14 CC).
Wills granted abroad are valid in Chile provided that: (i) they are issued in writing; (ii) they are proved to be compliant with the formalities of the place of issue; and (iii) their authenticity is proved pursuant to Chilean law (art 1027 CC). Further, Chilean nationals and foreigners residing in Chile may issue wills abroad in keeping with Chilean legislation, when performed by the consular or diplomatic officials noted in arts 1028 and 1029 CC.
The creation, modification, qualification, operation and termination of for-profit and non-profit business entities are regulated under domestic law. In the corporate sphere, open, closed and special joint-stock corporations are governed by Law 18.046 on Corporations, mutual guarantee stock corporations are regulated pursuant to Law 20.179 on such companies (published in the Official Gazette on 20 June 2007) and regulations on limited liability corporations (abbreviated in Spanish as ‘SpA’) are contained in paragraph 8, Title VII, Book II of the Code of Commerce. A variety of unlisted enterprises, including general and special partnerships, are also regulated in Title VII, Book II of the Code of Commerce. Limited liability partnerships are regulated separately in Law 3.918, published in the Official Gazette on 14 March 1923).
The provisions of the Bustamante Code are also relevant in this field. The →nationality of unincorporated civil, commercial and industrial partnerships is set in the articles of partnership or in applicable cases the place where the management or the main direction body is situated (art 18 Bustamante Code). The nationality of stock corporations may be listed in the articles of incorporation. However, should no mention be made therein, in keeping with art 19 Bustamante Code, nationality will be determined by the law of the place where the shareholders’ meeting normally takes places and, failing that, by the law of the place where its principal council or board of director or management board is located.
Moreover, Book Two of the Bustamante Code, on International Commercial Law, provides that the capacity to be engaged in commerce and to intervene in commercial acts or contracts is governed by the personal law of each interested party (art 232 Bustamante Code). The status of merchants and the form that commercial acts and contracts take is governed by the law of the forum in which they are undertaken (arts 239 and 240 Bustamante Code). The commercial character of a general or limited partnership is generally set forth in the articles of partnership. Failing that, the applicable law will be that of its legal domicile. Furthermore, should such laws fail to distinguish between civil and commercial partnerships, the applicable law will be that of the forum (art 247 Bustamante Code). In the case of joint-stock corporations, the commercial character is governed by the law of the articles of incorporation or, failing that, the place where the general shareholders’ meetings take place or, failing that, where the council or board of directors normally resides. Again, if such laws make no distinction between civil and commercial associations, the commercial character of the enterprise will be determined on the basis of registration in the commercial p. 1register (in Chile, the Registro de Comercio). In the absence of such a register, the applicable law will be that of the forum hearing the issue (art 248 Bustamante Code).
11. Intellectual property
Intellectual property rights are enshrined in Chile’s Constitution (arts 19(24) and (25)) and further set forth in the CC (arts 583 and 584). Supplementary legislation includes Law 17.336 on Intellectual Property, published in the Official Gazette on 2 October 1970, which regulates copyright, related or moral rights, and Law 19.039 on Industrial Property, published in the Official Gazette on 25 January 1991, which in turn deals, among others, with invention patents, trade marks, utility models and denominations of origin. In addition, Chile has ratified a number of treaties on intellectual property with provisions germane to determining applicable law, including: the Bustamante Code, the Berne Convention (Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, completed at Paris on 4 May 1896, revised at Berlin on 13 November 1908, completed at Berne on 20 March 1914, revised at Rome on 2 June 1928, revised at Brussels on 26 June 1948, revised at Stockholm on 14 July 1967 and revised at Paris on 24 July 1971, 1161 UNTS 3 and amended in 1979 Treaty Doc No 99-27 and 1985, 828 UNTS 221), ratified and in force in Chile since 5 June 1970, and the Paris Convention for the Protection of Industrial Property, signed on 20 March 1883 and ratified and in force in Chile since 14 June 1991.
The regulatory framework for intellectual and industrial property in Chile provides substantive protection within the confines of Chilean territory (art 2 Law 17.336 on Intellectual Property; arts 2, 23bis B and 49 Law 19.039 on Industrial Property). In fact, domestic regulations contain no references to the applicable law in international cases, leaving the provisions on →choice of law to international treaties.
In that context, the Bustamante Code also follows territory-based criteria, calling for applicable law to be that of the place where registration of the work was granted (arts 108 and 115 Bustamante Code), and only acknowledges provisions of special international agreements in a supplemental manner.
The Berne Convention establishes that both protection and the procedural rules to defend such rights will be governed exclusively by the legislation of the country where protection is claimed (arts 5 and 6bis(3) Berne Convention). In terms of choice of law, this means that a judge may be called upon to apply the laws of the country where protection is claimed, rather than their own substantive or procedural regulations.
The Paris Convention, which also adopts a system of registration within a given territory, gives pre-eminence to the safeguards, laws and protections of the country in which rights were granted (arts 4 bis(1) and 6(3)).
V. Recognition of judgments
1. General system of exequatur
The Chilean Supreme Court, the court of competent jurisdiction in these matters, has ruled that exequatur ‘is the adversarial process’ through which, after having reviewed ‘the legal requirements and without assessing the substance of the case at issue’, ‘authorization or a favorable ruling to the foreign decision which resolves the matter is granted, to lend such ruling the executory authority it would otherwise lack, and acknowledge in such ruling the same effects as those of decisions issued by domestic judges, which enable such [foreign decisions] to be enforced by means of the appropriate procedure and competent court’ (SCS of 8 September 2009, case Rol 3225-2008).
The primary regulations on recognition and enforcement of foreign judgments in Chile are found in arts 242–51 CPC.
The Supreme Court uses the following system to determine eligibility of exequatur requests: first, it looks at any international treaties that may be in place with the country of origin of the judgment or award (the Bustamante Code, the New York Convention, the Inter-American Arbitration and MERCOSUR). If a treaty is in place, the foreign ruling will be granted the recognition set forth in the corresponding international accord. Second, absent such a treaty, the Court will apply the principle of →reciprocity. In other words, recognition of the judgment or arbitral award will be granted to the same extent as a Chilean ruling would be recognized by the court of origin of the request. Finally, should neither of the two preceding options be available, the Supreme Court seeks to verify whether the ruling meets all four of the requirements set forth in art 245 CPC, ie: (i) that the ruling contains no substantive violation of Chilean laws, independent of the procedural rules that such a case would have followed in Chile; (ii) that the ruling does not violate national p. 1jurisdiction; (iii) that notice of the ruling has been duly served on the respondent; and (iv) that the decision is final and binding, in keeping with the laws of the country in which the order was issued.
Enforcement of judgments recognized via exequatur is carried out by the Chilean court that would have had jurisdiction to hear the matter in the first or sole instance had the case been domestic.
2. Exequatur regarding foreign judgments on divorce and annulment
However, divorce granted by any means other than a court order or in any way that violates Chilean ordre public will not be acknowledged.
Furthermore, decisions obtained through the fraudulent use of law are barred in Chile. Such fraud is deemed to have been committed when divorce is granted in a foreign jurisdiction when: the spouses resided in Chile at any time in the three years preceding the judgment whose enforcement is sought; if both spouses acknowledge that their cohabitation ceased three years prior; or, should disagreement arise regarding the length of separation, in the five years preceding the ruling. The agreement or disagreement between the spouses regarding the period of separation may be reflected in the decision proper or argued during the processing of the exequatur (see <www.poderjudicial.cl>: SCS, Rol 659-2013, of 13 January 2014/SCS, Rol 708-2013, of 27 January 2014/SCS, Rol 5240-2013, of 27 January 2014/7551-2013, of 22 January 2014).
3. Exequatur regarding foreign arbitral awards
The provisions of Law 19.971 on International Commercial Arbitration (art 36) are applicable in these cases. In addition, Chile has ratified the New York Convention and the Inter-American Arbitration Convention rendering their provisions that are fully applicable in Chile (see <www.poderjudicial.cl>: SCS, Rol 6600-2005, of 11 January 2007/SCS Rol 2026-2007, of 28 July 2008/SCS Rol 6615-2007, of 15 September 2008/SCS Rol 3225-2008, of 8 September 2009/SCS Rol 5228-2008, of 15 December 2009/SCS Rol 5468-2009, of 11 May 2010/SCS Rol 1724-2010, of 21 June 2010/SCS Rol 4390-2010, of 8 September 2011).
VI. International cooperation
International letters rotatory are regulated in art 76 CPC. This body of law states that when service of process is required in a foreign country (active petitions), the corresponding request will be formulated by the Supreme Court of Chile and forwarded to the Ministry of Foreign Affairs for processing abroad in keeping with the applicable treaties or principles of international law. Requests for service of process (passive petitions) issued by foreign courts follow a similar path in Chile.
The Bustamante Code sets forth in art 338 that: ‘Every procedural act that a contracting State needs to realize in another shall be effected by means of letters rogatory, transmitted through diplomatic channels. However, the contracting States can agree or accept between themselves, for civil or criminal matters, any other form of transmission’.
Chile has ratified the Inter-American Letters Rogatory Convention.
Although the competent authority for most requests is the Ministry of Foreign Affairs of Chile, art 20bis Code of Criminal Procedure exceptionally submits the processing of requests for international assistance in criminal affairs to the Office of the Public Prosecutor. This office processes petitions in keeping with domestic law and international treaties, such as the 1992 Nassau Convention on Mutual Assistance in Criminal Matters, published in the Official Gazette on 8 July 2004, the MERCOSUR Convention on Mutual Assistance in Criminal Matters, published in the Official Gazette on 17 October 2009, and the European Convention of 20 April 1959 on Mutual Assistance in Criminal Matters (472 UNTS 185).
In the area of extradition, the Supreme Court is tasked with ruling on all requests filed by foreign nations. Requests will be heard when: (i) the identity of the defendant has been determined; (ii) the crime charged is of an extraditable nature, in keeping with international treaties and the principles of international law; and (iii) the facts of the case suggest that in Chile charges would have been pressed against the defendant for such an offence (arts 440–54 Code of Criminal Procedure). Chile has ratified 16 bilateral extradition treaties (Ecuador, published in the Official Gazette on 9 October 1899, Uruguay, published in the Official Gazette on 20 May 1930, Bolivia, published in the Official Gazette on 26 May 1931, Brazil, published in the Official Gazette on 19 p. 1December 1900, Colombia, published in the Official Gazette on 7 January 1929, Paraguay, published in the Official Gazette on 13 November 1928, Peru, published in the Official Gazette on 27 August 1936, Venezuela, published in the Official Gazette on 1 June 1965, Nicaragua, published in the Official Gazette on 20 August 2001, Mexico, published in the Official Gazette on 30 November 1993, United States of America, published in the Official Gazette on 11 August 1902, Great Britain, published in the Official Gazette on 22 April 1898, Belgium, published in the Official Gazette on 5 April 1904, Spain, published in the Official Gazette on 3 April 1897, Australia, published in the Official Gazette on 20 February 1996, and the Republic of Korea, published in the Official Gazette on 23 October 1997). In addition, three multilateral agreements specifically regulate a variety of extradition-related matters: the Bustamante Code, the MERCOSUR Agreement on Extradition of 1998, published in the Official Gazette on 12 April 2012, and the Inter-American Convention on Extradition of 1933 (see: <www.poderjudicial.cl>: SCS, Rol 7959-2012, of 20 November 2012/SCS, Rol 2081-2012, of 3 July 2012/SCS, Rol 2745, of 16 May 2012/SCS, Rol 11.754, of 26 March 2012/SCS, Rol 8687, of 9 July 2012).
VII. Civil cases with foreign components
1. Right to appear at trial
Chilean nationals and foreigners enjoy equal treatment with regard to the right to appear and be represented in court (arts 382–87 Bustamante Code).
Chilean law does not differentiate between nationals and foreigners with regard to the acquisition and enjoyment of the civil rights governed by the Civil Code (art 57 CC).
2. Exceptions of an international character
The Bustamante Code regulates three forms of international exceptions: (i) a delineatory exception (art 397 Bustamante Code), applicable in cases where a defendant has been sued before a court lacking due jurisdiction – in Chile, in both domestic and international cases, exceptions based on lack of jurisdiction are addressed in ancillary proceedings; (ii) lis pendens, which results from the existence of litigation in another jurisdiction on an identical legal issue. The use of the exception seeks to ensure that the parties do not have to appear on the same matter in two fora and that no two separate, and potentially contradictory, rulings are issued. For this exception to be pleaded, both courts must hold jurisdiction in keeping with their domestic legislation, and the judgment, when rendered in one state, will produce res judicata effects in the other. Such exceptions may only be raised in civil proceedings (art 394 Bustamante Code); and finally (iii) res judicata, as established in art 396 Bustamante Code, must meet five copulative requirements to be upheld by Chilean courts: the same legal identify of the litigants (eaedem personae), the same identity of object (eadem res), the same causes of action (eadem causa petendi), the ruling must have been duly served on all parties, and the jurisdiction of the issuing court must be uncontested (arts 174 and 177 CPC).
The Bustamante Code regulates three aspects in the area of international evidence that are fully applicable in Chile, given the void in domestic law on these matters. They are: →burden of proof; admissibility of evidence; and weighing of evidence.
The burden of proof (onus probando) is governed by the law applicable to the crime or legal relation that is the object of the civil or commercial litigation (lex causae) (art 398 Bustamante Code).
The use of different means of proof is governed by the law of the place in which the act or fact that a party is seeking to establish has been realized, except for those means that are not authorized by the place of the litigation (art 399 Bustamante Code).
The assessment of evidence is governed by lex fori, that is, the judge’s own domestic legislation (art 401 Bustamante Code).
Eduardo Picand Albónico, Estudios de Derecho Internacional Privado (Thomson Reuters 2014);
Gabriel Villarroel Barrientos, Curso de Derecho Internacional Privado: Parte General (Editorial Jurídica de Chile 2004);
Diego Guzmán Latorre, Tratado de Derecho Internacional Privado (3rd edn, Editorial Jurídica de Chile 1997);
Fernando Albónico Valenzuela, Manual de Derecho Internacional Privado, vol 2 (Editorial Jurídica de Chile 1950).