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Legal Focus

JANUARY 2013

Enforcing a foreign judgement chile

Proceedings leading up to court cases are complicated and come with a plethora of legal complexities. However, the challenges do not simply stop once a ruling has been reached. Enforcing judgements can be just as tricky, especially within cross-border cases, as the recent case regarding Chevron and the people of Ecuador highlights. To find out more, Lawyer Monthly speaks to Francisco González, partner and head of the litigation department at Barros Letelier & González.

Please introduce yourself and your firm and tell me about the cases you normally work on.

Barros Letelier & González provides full legal services, including litigation before ordinary and arbitral tribunals. Given the increasing presence of foreign investment in Chile, many cases we take to court have complex international aspects to consider, especially issues regarding the enforcement of judicial rulings. Besides, senior partner Dr. Enrique Barros is a much respected arbitrator and has issued important decisions involving foreign companies. Because of his influential academic work he is also often asked to prepare expert reports in trials of crucial importance, which include matters of international private law and enforcement of foreign sentences.

can you describe the enforcement proceeding in chile?

The recognition of foreign judgements in civil matters is governed by the Code of Civil Procedure, international treaties and the Civil Code. The law requires an “exequatur” issued by the Supreme Court in order to recognize the legal effect of the foreign ruling:

• The interested party must file a request before the Supreme Court presenting an authorized copy of the judgement.

• Once the exequatur is granted, the foreign sentence has the same force as a Chilean judgement and can be enforced by the same tribunal competent to enforce Chilean judgements on the same matter.

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Which are the legal criteria to grant or deny the exequatur?

First, the Court must apply the rules established in international treaties, mainly the Code of International Private Law, the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the 1975 Inter-American Convention on International Commercial Arbitration (Panama Convention).

In case the judgement is not covered by a treaty, the principle of international reciprocity applies. Thus the foreign judgement shall have the same force recognized by the foreign courts to a Chilean judgement.

In case none of the previous rules are applicable, the foreign judgement must meet the following requirements: (i) No contravention of Chilean law or jurisdiction i.e. it shall not oppose Chilean ordre public, (ii) duly service of process of the party against which the judgement will be enforced, (iii) all legal recourses must be exhausted according to the law of the country of origin.

Is it difficult to enforce a foreign arbitral judgement?

Most issues we encounter regarding foreign decisions arise from arbitral tribunals. In the past years, Chile has adjusted its legislation to international standards:

• For the enforcement of foreign arbitral judgements the Code of Civil Procedure requires a “double exequatur”, i.e. a

tel: +56 2 4312700 Fax: +56 2 4312701 Email: fgonzalez@blg.cl Website: www.blg.cl

certification of the authenticity and legal effectiveness of the judgement in form of an approval by a superior court of the country of origin.

• In 2004 this system was replaced by Law 19.971 (chapter VIII) which abolishes the “double exequatur”, adopting the criteria of the New York Convention. It establishes a presumption of validity of the foreign arbitral judgements, unless it is successfully challenged before the Chilean Supreme Court. Its recent decisions have clarified that a pending remedy in the country of origin does not automatically bar the enforcement (KfW v. Inverraz), but if nullity was declared by a Court of the country of origin, enforcement is not longer possible (EDFI v. Endesa and YPF). LM

contact details:

Francisco González Barros, Letelier & González

av. Isidora Goyenechea 3120, 3rd floor, Santiago, chile