El Costo de la justicia: Las costas en el Derecho Procesal Civil Chileno y los Modelos Para su Regulación

Abstract

The article critically analyzes the regulation of lawyer's fees in the Chilean Civil Procedure system, raising some issues that should be taken into account on a future reform of the Chilean civil procedure. First, the concept of litigation of costs and its relationship with access to justice is examined. Secondly, the allocation of lawyer's fees is analyzed, comparing the English “loser pays rule” with the American rule on the subject. Thirdly, the Chilean civil procedure rules are analyzed, particularly the definition of the “sound reasons to litigate” criterion, arguing that currently there are no objective parameters to apply this criterion. Additionally, the article advances some criticisms to the assessment of lawyer's fees, due to the lack of rules or criteria for its assessment. For this regard, it is suggested that courts should ask and review the real costs in which the winner party actually incurred during trial.