Chile: The distortion of recurso de queja: from extraordinary remedy to ordinary review

Domestic arbitration awards rendered in Chile may be challenged through certain procedural remedies. In principle, the same remedies available against judgments issued by ordinary courts apply to arbitral awards, including motions for reconsideration; motions for clarification, correction, or amendment; appeals; annulment (casación) for procedural defects or on the merits; and the recurso de queja.

However, as the principle of party autonomy predominates in private legal relations in Chile, it is common for companies to include arbitration clauses in their contracts providing that any disputes will be resolved by arbitrators listed with CAM Santiago.

That is significant because CAM Santiago’s Procedural Arbitration Rules expressly exclude rights of appeal (in common with many other arbitral institutions worldwide). Specifically, Article 43 of the CAM Santiago Arbitration Rules provides that “[n]o remedy shall lie against the arbitral award, unless the parties expressly agree to allow appeals and annulment for procedural defects (…)."

However, certain remedies are deemed non-waivable as a matter of public policy—namely, annulment (casación en la forma) on the grounds of:

• lack of jurisdiction Articles 768(1) of the Chilean Code of Civil Procedure);
• ultra petita (Articles 768(4) of the Chilean Code of Civil Procedure); and
• the recurso de queja (Article 545 of the Chile’s Judiciary Organisation Code.).

This has given rise to a distinctive practice: parties frequently waive all statutory remedies and retain the recurso de queja as the primary—if not exclusive—mechanism for challenging arbitral awards.

The recurso de queja is an exceptional procedural remedy whose legal nature differs from ordinary remedies under Chilean law. It is codified in Article 545 of the Judiciary Organisation Code, which provides:

“The recurso de queja is intended exclusively to correct serious faults or abuses committed in the issuance of judicial decisions. It shall proceed only where such fault or abuse occurs in an interlocutory decision that terminates the proceedings or renders their continuation impossible, or in a final judgment, and only where such decisions are not subject to any other ordinary or extraordinary remedy, without prejudice to the authority of the Supreme Court to act sua sponte in the exercise of its disciplinary powers.”

This statutory definition reveals several essential features of the remedy:

1. Subsidiary character: it is only available when the challenged decision is not subject to any other form of remedy.
2. Disciplinary purpose: it serves objectives distinct from those of ordinary review mechanisms, such as appeal (see Santiago Court of Appeals, Case No. 13,991-2022). It operates exclusively as a corrective device in cases involving serious faults or abuse (see Supreme Court of Chile, Case No. 44,956-2017).
3. Extraordinary nature: it requires a showing of grave fault or abuse - a threshold substantially higher than a mere error of law or fact.

The remedy is therefore available only where a serious fault or abuse has been committed by the tribunal. Not every error or irregularity suffices. Rather, the reviewing court must find that the decision flagrantly violated fundamental principles of due process or constituted an arbitrary exercise of judicial authority exceeding the reasonable bounds of adjudicatory discretion (see Santiago Court of Appeals, Case No. 13,991-2022).

Its disciplinary nature explains why the remedy is considered non-waivable. Yet the very feature originally intended to safeguard essential due process guarantees has also generated the phenomenon examined in this article: arbitral parties increasingly invoke the recurso de queja as a routine means of challenge, regardless of whether its stringent requirements are truly met.

Despite the intention that recurso de queja should be reserved for narrowly defined circumstances, in practice it appears to have become a filing of last resort in virtually any case where a party is dissatisfied with a result, and its use has become a matter of routine. Parties now submit recursos de queja based on disagreements over evidentiary assessments, dissatisfaction with the tribunal’s reasoning, or alleged defects that were once reviewable through other procedural avenues—grounds far removed from the serious fault or abuse the statute actually contemplates.

The increase in the use of recurso de queja is demonstrated by CAM Santiago’s data, which shows that it is the most frequently used mechanism to challenge arbitral awards. More than half of all remedies filed against awards consist of recursos de queja – a striking result given the remedy’s formally extraordinary nature.

For the years 2023 and 2024, CAM Santiago reported the following figures:

1. 2023: Of 102 total remedies filed against 247 arbitral awards, 54 were recursos de queja, representing 52.9% of all challenges.
2. 2024: Of 142 total remedies filed against 211 arbitral awards, 76 were recursos de queja, representing 53.5% of all challenges.

The question follows: can such a significant proportion of awards genuinely involve “serious faults or abuses” on the part of the adjudicators?

The most revealing indicator of the remedy’s distortion emerges from its success rates. If the recursos de queja filed truly corresponded to grave faults or abuses, one would expect a relatively high rate of success. The data, however, demonstrates the opposite:

By way of illustration, in 2024 only 3 out of 69 complaints were deemed well-founded. In other words, more than 95% of the remedies filed lacked sufficient merit to succeed.

Further evidence emerges from examining the number of arbitral awards issued in both years. The total number of awards decreased from 247 in 2023 to 211 in 2024 - a reduction of more than 14%. Yet the number of applications for recurso de queja filed increased from 102 to 142, representing an increase of nearly 40%.

This distortion explains why recursos de queja have been so systematically dismissed or declared inadmissible. As the Higher Courts of Justice - particularly the Santiago Court of Appeals - have stated: “This remedy [the recurso de queja] is not equivalent to annulment for procedural defects or appeal. Rather, it is a disciplinary mechanism that permits the reviewing court only to oversee potential arbitrariness by arbitrators in cases of manifest absurdity or irrationality in their decisions” (see Santiago Court of Appeals, Case No. 1204-2016).

Another revealing aspect emerges when contrasting the remedy's use in arbitration with its application in court litigation. In court proceedings, the mechanism retains its extraordinary character because parties cannot waive the full range of remedies. Litigants operate within a tiered review structure - reconsideration, appeal, and annulment - within which the recurso de queja is confined to its original function: addressing exceptional situations involving particularly grave abuses (see Santiago Court of Appeals, Case No. 13,991-2022).

Notwithstanding this functional transformation, the Higher Courts of Justice have actively resisted the remedy's expansion. The Courts of Appeals, in particular, have maintained demanding standards of review, thereby preserving—at least doctrinally—its extraordinary character.

Perhaps the most intriguing element of the growth of the recurso de queja is the fact that, not only are success rates low, but the remedy is not even a particularly effective method of delaying enforcement. Typically, a recurso de queja takes about seven months to be resolved, meaning that it does not delay enforcement of an award much more than other ordinary remedies, and decisions are not subject to further review. By contrast, appeals from judgments can be subject to annulment on procedural and/or substantive grounds, adding approximately a year to the length of proceedings.

Indeed, the recurso de queja seems to be the preferred option for parties precisely because applications can be dealt with quickly and without further review indicating that, even when trying to challenge or delay enforcement, parties in Chile continue to prioritise speed above all else.

The irony is evident: within Chilean arbitral practice, a mechanism conceived for exceptional circumstances has evolved from an extraordinary remedy into the only procedural avenue available to parties seeking to challenge arbitral awards, and one now invoked as a matter of course.

This development stems from the consistent decision of arbitral participants, in pursuit of speed and efficiency, to waive other remedies available under Chilean law, meaning that parties that have been unsuccessful in arbitration proceedings will seek to challenge an award through whatever means possible.

Given the genuinely extraordinary nature of the recurso de queja, more than 95% of such filings lacked sufficient merit to be granted-revealing a pattern of systematic and largely unfounded use, disconnected from the actual existence of serious faults or abuses.

Practitioners handling arbitrations in Chile should recognise this functional distortion. Rather than presenting the remedy to clients as the sole avenue of review, counsel should clearly advise them of all mechanisms available under Chilean law to challenge unfavourable arbitral awards.

Ultimately, clients themselves should be empowered to conduct a cost–benefit analysis between (i) a faster arbitral process with an award that is difficult to challenge, and (ii) a lengthier proceeding that preserves broader avenues for review with a greater possibility of reversal. The decision should be theirs to make.