Colombia

Eduardo Zuleta, Laura Sinisterra, María Cristina Martínez and Sebastián Mantilla

Gómez-Pinzón Zuleta Abogados SA

  1. 1.Which legislation governs the enforcement of international commercial arbitration awards and arbitral agreements in international business contracts, and international commercial arbitration proceedings?

    The foundation stone of arbitration in Colombia is article 116 of the Constitution. More specifically, Law 315/96 governs international arbitration and applies where:

    “[…] 1. The parties have their domicile in different States at the time of the conclusion of the arbitration agreement. 2. The place of performance of the substantial part of the obligations that is directly linked to the object of the dispute is outside the State in which the parties have their main domicile. 3. The place of arbitration is outside the State in which the parties have their domicile, provided this eventuality is agreed in the arbitration agreement. 4. The matter that is the object of the arbitration agreement clearly involves the interest of more than one State and the parties thus expressly agreed. 5. The dispute referred to arbitration directly and unequivocally affects the interests of international commerce […]” (article 1; translation provided by the International Encyclopaedia of Laws). According to the Constitutional Court, the third criterion also requires that “[…] at least one of the parties is foreign[…]” (Decision C-347/97).

    Decree 1818/98 compiled the provisions applicable to both domestic and international arbitration. However, the statute omitted norms that are in force and included others that are not. In addition, Law 80/93 (articles 68-75) governs arbitrations related to state contracts. Particularly, article 70 authorises the state to conclude arbitration agreements regarding:

    • contracts with a party domiciled abroad; and

    • contracts providing for long-term financing to be paid through the exploitation of the object built or the operation of goods, for carrying out a public service.

    Finally, the recognition and enforcement of foreign awards in Colombia is governed by certain international conventions (see question 3) and some provisions of the Code of Civil Procedure [CCP] (see question 47).

  2. 2.Has the UNCITRAL model arbitration law been adopted in your jurisdiction?

    Law 315/96 only included, with some changes, article 1(3) of the 1985 UNCITRAL Model Law. However, the Congress is currently discussing a Draft National and International Arbitration Act containing a model law-based international arbitration chapter.

  3. 3.Is your jurisdiction a party to both the New York Convention and the Panama Convention? Is it a party to any other conventions or treaties governing international commercial arbitration agreements, awards or proceedings?

    Colombia is party to:

    • The New York Convention (Law 39/90);

    • The Panama Convention (Law 44/86);

    • The 1940 Montevideo Treaty on International Procedural Law;

    • The 1979 Montevideo Convention (Law 16/81); and

    • The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (Law 267/95).

  4. 4.Is your jurisdiction a party to the ICSID Convention? Have steps been taken to renounce the Convention or withdraw from ICSID?

    The ICSID Convention was signed on 18 May 1993, adopted through Law 267/95 and declared as adjusted to the constitution by the Constitutional Court (Decision C-442/96). The ratification was deposited on 15 July 1997 and the treaty entered into force on 14 August 1997. No steps to withdraw from ICISD have been reported.

  5. 5.Has your jurisdiction refused to honour an international arbitral award issued against it?

    There are no reported cases in which Colombia has refused to honour awards rendered against it.

  6. 6.Is a pre-dispute clause or separate agreement to resolve international commercial disputes by arbitration enforceable?

    In domestic arbitration, Colombian law distinguishes between arbitration clauses, whereby the parties refer future disputes to arbitration through a provision embedded within a contract or a separate document, and submission agreements (concerning existing disputes) (Law 446/98, articles 115-117). Both are enforceable. In turn, Law 315/96 uses the term ‘pacto arbitral’ comprising both arbitral clauses and submission agreements. Now, an international arbitration agreement, regardless of whether it appears in the form of an arbitration clause or as a submission agreement, is enforceable (New York Convention, article II).

  7. 7.Is a pre-dispute clause or separate agreement to resolve disputes by arbitration enforceable in consumer cases? Is there any legislation in your jurisdiction governing the arbitrability of consumer disputes?

    Article 43.12 of the New Consumer Protection Statute (Law 1480/11) expressly established that those clauses which “[...] oblige a consumer to resort to arbitration [...]” are abusive and shall be given no effect.

  8. 8.What are the requirements for an enforceable arbitral agreement?

    In domestic arbitration, while the arbitration clause must only include the name and domicile of the parties, the submission agreement shall additionally provide all information necessary to identify the dispute that will be submitted to arbitration (Law 446/98, articles 115-117). Now, an international arbitration agreement must:

    • be in writing;

    • express the parties’ consent to submit to arbitration present or future disputes regarding a defined legal relationship; and

    • concern a matter capable of being resolved by arbitration (New York Convention, article II).

  9. 9.Is there a subject matter that is not legally subject to arbitration in the context of an international business transaction?

    Only disputes that may be directly settled by the parties can be submitted to arbitration (Law 446/98, article 111; Decision C-098/01). The Colombian Civil Code [CCC] contains the rules applicable to such settlement (articles 2469-2487) and provides that claims related to family civil status, criminal matters, as well as issues resolved by a decision having res judicata effects and unknown to any of the parties, cannot be settled. Thus, they cannot be arbitrated. Please note that, generally speaking, a settlement is permitted where it refers to obligations having an economic nature (Decision SU-174/07). In addition, the Constitutional Court excludes arbitration for:

    • obligations arising from provisions involving public policy and good usages;

    • the rights of incapable persons;

    • the rights that cannot be freely disposed of by law; and

    • the workers’ minimum rights (Decisions C-294/95 and C-330/00).

    Other relevant restrictions are:

    • Arbitrators cannot decide on the validity of decisions made by a company’s board of directors (junta de socios) or shareholder’s assembly (asamblea general) (Code of Commerce, article 194; Decision C-378/08). An exception is provided for the so-called Sociedad por Acciones Simplificada (Law 1258/08, article 40; Decision C-014/10).

    • The Constitutional Court has determined that, although the legality of administrative acts issued in exercise of the Administration’s ‘exceptional powers’ cannot be subjected to arbitration, arbitrators may decide on the economic effects thereof (Decision C-1336/00 and SU-174/07). In this vein, the Council of State has held that the “exceptional powers” to which the Constitutional Court referred to are only those listed in article 14 of Law 80/93, ie, unilateral interpretation, unilateral modification, unilateral termination and expiry (caducidad) of state contracts, as well as the subjection of these contracts to domestic law. In contracts for the exploitation and concession of state property, these powers would also include the transfer to the state of certain private assets used by the contractor to perform his obligations (reversión) (Decision dated 9 June 2009).

    • Contracts for the exploration and exploitation of hydrocarbons entered into with the Colombian Hydrocarbons Agency may not be submitted to international arbitration (Decree 1056/53). Finally, those matters subject to the administrative proceedings established by statutory law for antitrust and consumer cases are not arbitrable (Law 1340/09, article 6; Decree 3466/82, article 42).

  10. 10.Does the law specify whether an arbitration will be in equity or under law if the parties do not expressly specify the nature of the arbitration in the agreement?

    In domestic arbitration, if the parties fail to indicate that arbitration is in equity, it will be in law (Law 446/98, article 111). There is no provision on this matter for international arbitration. Now, according to article 70 of Law 80/93, arbitrations involving state contracts must be in law.

  11. 11.How does the law limit party autonomy with respect to the terms of an arbitral agreement?

    Colombian law grants the parties broad discretion to tailor the arbitration proceedings according to their needs. Particularly in international arbitration, they are provided with a very broad discretion (Law 315/96, article 2), subject to the mandatory provisions of Colombian law (where applicable) and to international public policy.

  12. 12.Under what circumstances does the law allow a non-signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that signed the arbitral agreement?

    Colombian legislation governing international arbitration does not provide for a non-signatory to the arbitration agreement to act as claimant or respondent within the proceedings. There is no reported case on this issue.

  13. 13.Under what circumstances does the law allow a signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that signed the arbitral agreement?

    When court proceedings have been commenced in breach of an arbitration agreement, a party intending to compel arbitration should raise a preliminary objection (excepción previa) under article 97.3 of the CCP. The court will then refer the parties to arbitration, unless the arbitration agreement is null and void, inoperative or incapable of being performed (New York Convention, article II.3). In the context of international arbitration, article 1 of Law 315/96 requires judges to refer the parties to arbitration when it is clear that an arbitration agreement exists.

  14. 14.Under what circumstances may a non-signatory to an arbitral agreement compel arbitration of a claim asserted against it by a signatory of the arbitral agreement in a court of law?

    Please see question 15.

  15. 15.Under what circumstances may a signatory to an arbitral agreement compel arbitration of a claim asserted against it by a non-signatory of the arbitral agreement in a court of law?

    As expressed above, when court proceedings have been commenced, a party intending to compel arbitration should raise a preliminary objection (excepción previa) under article 97.3 of the CCP. In practice, judges will accept such objection and refer the parties to arbitration (as per article II.3 of the New York Convention) only if both of them have expressly and directly agreed to arbitrate. The Constitutional Court itself has held that arbitration is exceptional and shall “[...] follow the express agreement of the parties [...]” (Decisions C-242/97 and SU-174/07).

    There is, however, a decision of the Supreme Court of Justice allowing a limited extension of the arbitration agreement to non-signatories when a guarantee summons request is successfully filed with the arbitral tribunal. Under such a request, “[a person] having legal or contractual right to request a third party compensation for damages, [or] total or partial reimbursement of the payment [that could be] due because of the [prospective] judicial decision, may request the issuance of a summons [of such third party], for such matter to be resolved in the same proceedings […]” (CCP, article 57).

    According to the court, the latter provision is applicable to domestic arbitration proceedings. In this vein, it held that “[…] [a party to arbitration proceedings] retains all the rights the legal system acknowledges to the parties to judicial proceedings, including those [rights] allowing them to compel third parties to [appear before the court], through the mechanisms provided by law itself. [This rule] relieves the party to the arbitration from the need to commence new proceedings concerning legal relationships, which could be addressed in the arbitral proceedings […] The arbitral tribunal should have granted the guarantee summons request, instead of rejecting it based on the abovementioned reasons, which ultimately affected the responding company’s right to submit [before the arbitrators] claims that, although are related to the subject-matter of the arbitration, have a contractual source different to the arbitration agreement. In light of the foregoing, this Chamber concludes that the only consent which is determining for the guarantee summons request to be effective, is the [consent expressed by] the requesting party, regardless of whether it occurs in the scenario of proceedings before ordinary courts of law or before an arbitration tribunal” (SCJ, Decision of 5 June 2008).

  16. 16.Is there a concept in your jurisdiction providing for class-action arbitration or group arbitration?

    Colombian law does not provide for class-action or group arbitration. Nonetheless, on 20 January 2004, a tribunal rendered a domestic award deciding on a group action filed by Luis Alberto Durán et al against Bancolombia, SA.

  17. 17.Are foreign arbitral institutions authorised to administer arbitrations in your jurisdiction? Does the law require that a foreign institution be licensed under local law in order to administer an arbitration seated there?

    In domestic arbitration, arbitral institutions must be approved by the Ministry of Interior and Justice. Such approval requires the fulfilment of the requisites set forth by articles 124 and 125 of Decree 1818/98. In international arbitration, the broad language used by article 2 of Law 315/96 entitles the parties to agree that the proceedings will be administered by a foreign institution and it has not been uncommon to do so in practice. Such agreement will not pose special risks towards the award’s execution.

  18. 18.Is an arbitral award issued in an arbitration seated in your jurisdiction under the auspices of a foreign institution such as the ICDR, the ICC or the LCIA vulnerable to challenge?

    Any award rendered in Colombia is subject to the action for annulment provided by article 38 of Decree 2279/89; the fact that an award has been issued by a tribunal constituted under the rules of a foreign institution, but seated in Colombia, does not enhance the probability of a successful challenge (see question 39).

  19. 19.Does the law require that arbitrators in international arbitrations be citizens or residents of your jurisdiction?

    Colombian international arbitration law neither sets forth any nationality or residence requirements for arbitrators, nor requires them to be lawyers.

  20. 20.Does your law require that arbitrators in international cases be lawyers?

    Please see question 19.

  21. 21.Are the fees of foreign arbitrators serving in an arbitration seated in your jurisdiction subject to taxation?

    The services provided by foreign arbitrators domiciled abroad may be considered as consulting services for the purposes of Colombian tax law. In that case:

    • if the payments are made by a Colombian entity, a 10 per cent income tax withholding will apply to them; and

    • when the payments are made by a foreign entity domiciled abroad, no withholding income tax arises, since such entities are not Colombian withholding agents (Tax Code, articles 12, 20 and 24). However, in the latter case, the arbitrator will be compelled to file an income tax return in Colombia declaring the value of his incomes resulting from the provision of consulting services to a beneficiary located in Colombia; in some cases, he must further settle and pay a tax at a rate of 33 per cent (Tax Code, articles 591-592).

  22. 22.Must arbitrators in international arbitrations be independent and impartial? What is the legal standard governing conflicts of interest and disclosure by arbitrators in international arbitrations?

    In Colombia, the judiciary is independent and judges must remain impartial (Law 270/96, articles 5 and 153.2). Now, domestic arbitrators have the same duties, powers and faculties judges have (Law 23/91, article 114). Although these rules are not applicable to arbitrators acting in international arbitral proceedings and there is no statute or reported case addressing the issue, it seems that they must also be independent and impartial: dependence or partiality may be seen as a violation of article 29 of the Constitution (due process).

  23. 23.Will courts entertain requests to disqualify an arbitrator during an arbitration?

    In domestic arbitration, the director of the competent arbitral institution may decide on challenges to arbitrators (Decree 2651/91, article 19); if no arbitration centre were competent, it seems that the municipal judge would hold jurisdiction. No similar rule can be deduced for international arbitration.

  24. 24.Does the law require that arbitral proceedings be held in a specific language?

    In international arbitration, the parties are free to determine the language of the proceedings (Law 315/96, article 2). In domestic arbitration, pursuant to article 102 of the CCP, “[...] the Spanish language shall be used in the proceedings [...]” (CCP, article 102).

  25. 25.Can foreign lawyers serve as advocates in arbitral proceedings in your jurisdiction? If so, can they do so alone or must a local lawyer serve as co-counsel?

    In international arbitration there is no restriction for foreign attorneys to serve as advocates. Neither does law require a local lawyer to participate as co-counsel in such cases. Nonetheless, in domestic arbitration, if the dispute is to be decided in law, the parties must be represented by a lawyer admitted to practice in Colombia. In any case, when the amount in dispute is equal to or less than 400 legal monthly minimum wages, representation by a lawyer is not required (Decree 1818/98, articles 122-123).

  26. 26.Are the fees of foreign layers earned for services rendered in connection with an arbitration seated in your jurisdiction subject to local taxation?

    The fees of foreign advocates acting in international arbitral proceedings seated in Colombia may be subject to taxes, in the same conditions explained above when referring to foreign arbitrators (see question 21).

  27. 27.In what circumstances, if any, does your law allow the consolidation of multiple arbitral proceedings?

    In domestic arbitration, consolidation follows the same rules applicable to court proceedings, namely, it is available when the requirements listed in article 157 of the CCP are satisfied. The rules governing international multi-party arbitration, including consolidation and appointment, will be those chosen by the parties (Law 315/96, article 2).

  28. 28.Please describe common practice and usage in international arbitrations seated in your jurisdiction with respect to a party’s right to require an opposing party to produce documents pertinent to the dispute.

    In international arbitration, arbitrators will generally respect an agreement on the possibility of requiring the opposite party to produce documents relevant for the dispute, in consistency with article 2 of Law 315/96. In domestic arbitration, the production of documents may be ordered by arbitrators in the same conditions applicable to judges (Law 23/91, article 114). Now, pursuant to CCP article 179, judges may – in certain circumstances - order the production of evidence at the request of any party or ex officio.

  29. 29.Is the principle of ‘Kompentenz-Kompetenz’ followed in the courts?

    The competence-competence principle is acknowledged by law and courts for domestic arbitration (Law 446/98, article 116; for decisions rendered by the Constitutional Court on this point see, for example, decisions SU-174/07 and T-1224/08).

    Although no similar provision exists for international arbitration, there is no reported international arbitration case in which local courts failed to follow the principle at issue.

  30. 30.Do the courts follow the principle of the independence and separability of the arbitration clause?

    The independence and separability of the arbitration agreement is expressly recognised by article 116 of Law 446/98. Courts are bound to apply that provision.

  31. 31.If a party files a lawsuit in violation of an agreement to arbitrate, will a petition by the defendant to remit the lawsuit to arbitration be granted by the courts under normal circumstances? If so, will that petition be treated as a threshold matter or will it be rolled into the merits of the litigation such that the defendant will also need to defend the merits of the lawsuit in court?

    If a lawsuit on a matter covered by an arbitration agreement is filed, courts will refer the parties to arbitration at the request of the defendant (New York Convention, article II.3; CCP, article 97.3). The interested party must raise the arbitral agreement by means of a motion to set aside the decision that admitted the claim, as a dilatory defence (‘excepción previa’) or as an exception in the response to the claim (all of them towards the court’s jurisdiction). Thus, the issue will be decided at a preliminary stage of the court proceedings (Law 315/96, article 1).

  32. 32.Are arbitral tribunals empowered to grant interim relief? If so, how is that relief enforced in the courts?

    Colombian domestic arbitration law allows the adoption of interim measures in arbitral proceedings where the dispute is related to the title or right of ownership of real property or movable assets (Decree 1818, article 152). Solely two measures are available:

    • where there is a public registry of the assets concerned, the registration of the arbitral proceedings therein; or

    • the seizure of movable assets, which does not require court intervention.

    Now, since domestic arbitrators are granted the same powers judges have (Law 23/91, article 114), such order will be directly enforced. In international arbitration, there is no provision on this matter. 

  33. 33.Can arbitrators issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them? If so, will a court lend its aid in enforcing such an order against a recalcitrant third party?

    Domestic arbitral tribunals have the same powers and obligations the CCP provides for judges (Law 23/91, article 114). With regard to evidence, two scenarios must be distinguished:

    • if the arbitrators order the production of evidence requested by a party, no recourse is available against their ruling; and

    • if the tribunal denies a request to produce evidence, it may be asked to reconsider its decision (Decree 2279/89, article 31).

    The legislation governing international arbitration does not contain any rules on this issue, so that nothing obliges to or prevents the courts from lending their aid in obtaining evidence.

  34. 34.Can a party to an arbitration seek relief from the court to obtain evidence in aid of an international arbitration? What is the scope of such relief?

    In international arbitration, there is no provision on whether a party may seek relief from a national court to obtain the production of evidence. In domestic arbitration, the possibility exists to request a Civil Circuit Judge to receive evidence that will later be presented before the arbitrators, before the commencement of the arbitration (pruebas anticipadas). Such evidence is to be filed with the arbitral tribunal as an annex to the claim or to the answer to claim (CCP, arts. 16, 23.20, 77.6, 92 and 294, ff.).

  35. 35.Can a party in an international commercial arbitration seek interim or provisional relief from a court without first seeking relief from the arbitral tribunal?

    In Colombia, there is no provision or reported case determining whether a party to international arbitral proceedings may seek interim or provisional relief from a court before requesting it to the arbitrators.

  36. 36.Have the courts issued injunctions enjoining arbitral proceedings from going forward?

    There is no reported case where a Colombian court issued injunctions enjoining arbitral proceedings from going forward.

  37. 37.Does the law provide that post-award interest accrues on an unpaid arbitral award?

    In principle, any obligation to pay post-award interest will depend on the parties’ agreement and the particular decision of the tribunal. Now, if there is a failure to fulfill the monetary obligations imposed by the award, the following rules may be applicable:

    Article 65 of Law 45/90: “[i]n commercial monetary obligations, the debtor is obliged to pay interests in case of default (mora) and from the default [...]”.

    Article 1617 of the Civil Code: “[i]f the obligation is to pay a sum of money, damages for default shall be subject to the following rules: 1) conventional interests will remain due, as long as the interest rate agreed is over the legal interest [6%]; otherwise, legal interests will be due [...]”.

    Besides default interests, Colombian law acknowledges that, when payment is made, the nominal value of the damages awarded by the arbitrators may not represent the real value thereof at the time of the decision. Thus, a proportional increase of such nominal value shall be ordered in the executory proceedings (CCP, article 308).

  38. 38.Is an arbitral tribunal empowered to award attorneys’ fees to the prevailing party or is that power reserved to the courts?

    The power of the tribunal to award attorney’s fees to the prevailing party in an international arbitration will be subject to the parties’ agreement (Law 315/96, article 2). Domestic arbitral tribunals are empowered to make such an award (CCP, article 304).

  39. 39.What are the grounds for challenging an international award issued in an arbitration seated in your jurisdiction?

    Three recourses are available to challenge awards rendered in Colombia:

    Annulment

    The grounds for setting aside an arbitral award are exhaustively listed in article 38 of Decree 2279/89. They are: “[…] 1. The absolute nullity of the arbitration agreement for the unlawfulness of its object or cause. Further grounds of absolute or relative nullity can be invoked only when they have been raised in the arbitral proceeding and have not been cured or validated in the course of that proceeding; 2. When the arbitral tribunal was not legally constituted, provided that this ground was expressly alleged at the first hearing […] 4. Where duly-requested evidence was not ordered or the necessary steps to collect it were not taken, provided that these omissions had an impact on the decision and the interested party’s request was duly and timely made; 5. When the award was rendered after the time-limit set for the arbitration has expired; 6. If the decision was rendered ex aequo et bono and should have been in law, provided that this circumstance manifestly appears in the award; 7. When the dictum of the award contains mathematical errors or contradictory provisions, provided that the issue has been duly alleged before the arbitral tribunal; 8. If the award refers to issues that were not submitted to the arbitrators or awards more than what [the tribunal] was asked to; and (9) When issues which were referred to arbitration were not resolved…”. In Empresa Colombiana de Vias Ferreas [Ferrovías] v Drummond Ltd (24 November 2003), the Council of State held that these grounds apply to awards rendered pursuant to both domestic and international arbitral proceedings. Finally, an action for the annulment of an award must be submitted in writing to the president of the arbitral tribunal within the five days following the notification of the award or any decision correcting, clarifying or complementing it. The recourse is to be decided by the Superior Tribunal of the Judicial District of the seat of arbitration or by the Council of State, if the dispute concerns state contracts (Decree 1818/98, articles 161 & 162).

    Revision

    Both the award and the court decision setting it aside are subject to the extraordinary recourse of revision (Decree 2279/89, article 41), which may be raised in the exceptional situations listed in article 380 of the CCP, ie: (1) If, after the decision has been adopted, documents that could have influenced it have appeared and the applicant could not submit them during the procedure because of force majeure, an act of God or due to its counterparty’s actions; (2) Where a criminal court has declared that the documents on which the decision relies are false; (3) In case that the decision was based on witness statements rendered by persons who have been subsequently condemned for having falsely testified therein; (4) When the decision was based on reports issued by experts who have been subsequently criminally condemned for illicit acts incurred in the production thereof; (5) If a criminal court declares that violence or bribery surrounded the issuance of the challenged decision; (6) Where collusive or fraudulent actions by the parties to the proceedings caused damage to the applicant, regardless of whether criminal investigations have been initiated; (7) In case of improper representation or lack of notification affecting the interests of the applicant, under the circumstances described in article 152 of the CCP, as long as the nullity has not been cured; (8) When the decision putting an end to the proceedings is null, provided that no recourse was available against it; (9) If the decision contravenes a preceding decision having res judicata effects between the parties, as long as the applicant was unable to raise the res judicata exception in the second proceedings for having acted through an ad litem representative and ignored the existence of such proceeding. However, the recourse is not admissible where the res judicata exception has been raised and denied. The time-limit for filing this recourse is two years. If the submission is based on grounds 1, 6, 8 or 9, such period runs from the date on which the decision becomes final. When the applicant relies on ground 7, it runs from the date when the affected party (or its representative) became aware of the decision. Finally, when the recourse concerns grounds 2, 3, 4 or 5, and the criminal procedure has not finished yet, the revision shall be suspended until the issuance of the criminal court’s decision (CCP, article 381). The recourse against the award is to be decided by the Superior Tribunal of the Judicial District of the seat of arbitration; if it challenges the ruling setting aside the award, the competent authority will be the Supreme Court of Justice (Decree 1818/98, article 166). On the other hand, if the arbitration involves the state, this recourse is the only one available to challenge the Council of State’s decision on the validity of the award (Decree 1818/98, article 162).

    Tutela

    The ‘acción de tutela’ is a special action for the protection of fundamental rights (Constitution, article 86). Decree 2591/91 governs the relevant procedure. It is aimed to provide immediate relief in cases where the acts or omissions of authorities or private persons threat or violate fundamental rights and proceeds only in the absence of any other judicial remedy or, where there is another action available, as a transitory mechanism for avoiding irreparable harm. The Constitutional Court has determined that the tutela can only be raised against judicial or arbitral decisions, where there is a ‘vía de hecho’ directly affecting fundamental rights (Decision SU-174/07, et al). According to the court, a ‘vía de hecho’ appears whenever an adjudicator:

    • uses its legal powers for a purpose different to that justifying them;

    • has no competence to decide on the subject matter of the dispute;

    • deviates from the procedure indicated by law; or

    • makes its decision with no evidentiary support

  40. 40.Is ‘lack of reasonableness’, manifest disregard or a mistake in the application of the substantive law to the dispute of an international award grounds to vacate it?

    In Colombia, the grounds for the awards’ annulment are only those listed in article 38 of Decree 2279/89. A challenge on substantive issues is not allowed. Now, although the tutela is likely to be used for reopening substantive matters, there is no reported international arbitration case where it was successfully used in such way. Finally, it is worth mentioning that the violation of public policy is not listed as a ground for annulment. The Constitutional Court determined that such omission is not contrary to the constitutional right to equal treatment because the situation of national and foreign awards is different, so that one cannot expect them to be given the same treatment (Decision C-800/05).

  41. 41.To what degree have international awards rendered in your jurisdiction been vacated on the grounds of ‘public policy’?

    Colombian law does not distinguish between national and international awards in terms of the possibility to file the action for annulment with Colombian courts. Any award rendered in Colombia is national and subject to the action for annulment provided by article 38 of Decree 2279/89, regardless of whether the arbitration was domestic or international. In Colombia public policy is not a ground for annulment.

  42. 42.What is the period of time a party has to challenge such an award?

    Please see question 39.

  43. 43.Please describe the standard used by the courts in deciding whether to vacate an international arbitral award rendered in your jurisdiction.

    Please see questions 39, ff.

  44. 44.Please describe any recent significant experiences or cases that illustrate the attitude of your courts toward the annulment of international awards rendered in your jurisdiction.

    On 10 March 2010, the Superior Tribunal of Bogotá decided on an annulment recourse raised by SAP Andina y del Caribe CA Colombia against an ICDR award rendered in Bogotá. The Colombian court held that no recourse was available against the award since the arbitral agreement, the ICDR Rules and the award itself established that the latter was final. Moreover, the annulment recourse had to be raised before the arbitrators rather than directly before courts of law (Decree 1818/98, article 161).

    Afterwards, a ‘recurso de súplica’ (whereby a court is required to review a decision made by one of its members on its behalf) was filed. On 21 May 2010, the Superior Tribunal confirmed the order based on article 161 of Decree 1818/98. However, it clarified that “[…] the mere fact that annulment recourse has been raised does not deprive [the award] from being a final decision and, although the parties are free to tailor the proceedings, they cannot act against due process in order to determine whether the proceeding agreed by the parties was fulfilled; thus, the [annulment] recourse was [in principle] available […]”.

  45. 45.Do the courts consider themselves empowered to vacate an arbitral award rendered in another jurisdiction?

    Colombian courts have not set aside awards rendered abroad as yet and are unlikely to do so. Indeed, on 22 April 2002, in the case Empresa Colombiana de Vías Férreas v Drummond, the Council of State explained that, under article V.1.e of the New York Convention, a decision suspending or annulling an award may be issued only by the competent authority of: (i) the place where the award was made; or (ii) the country under which procedural law the decision was rendered. Since in that case the arbitral seat was Paris, it was held that the annulment recourse fell beyond the Council of State’s jurisdiction.

  46. 46.May parties waive all court review of an arbitral award rendered in your jurisdiction (or restrict or expand the scope of that court review)?

    Court review of arbitral awards is governed by procedural provisions (see question 39). Under Colombian law, procedural rules are mandatory; thus, they cannot be validly waived or modified by the parties (CCP, article 6).

    In this regard, it is worth mentioning the recent decision issued by the Council of State in Isagén v Odebrecht, (25 November 2011) in which it held: “[i]f we were to accept Respondent’s contention that the parties had waived all and any recourses available against the arbitral award… [such clause] would have to be deemed as not written, since it would be contrary to basic principles of Colombian procedural law, namely those set forth by article 6 of the Code of Civil Procedure”.

  47. 47.Please describe the process for enforcing an arbitral award rendered in another jurisdiction.

    The exequatur claim must be submitted before the Civil Chamber of the Supreme Court of Justice. It is necessary to:

    • Provide a final and duly-certified copy of the award and a translation thereof to Spanish;

    • summon the losing party before the court; and

    • request the production of any pertinent means of evidence (CCP, article 695).

    In turn, the claim’s admission has to be notified to:

    • the losing party in the arbitration; and

    • a delegate civil attorney.

    Each of them has a five-day period to become a party to the court proceedings. During that time, the losing party and the civil attorney will request the production of any means of evidence they deem necessary. Once the five-day term has expired, the Supreme Court will order the production of the pieces of evidence it considers appropriate. After the court declares the end of the evidentiary stage, each party must submit its closing arguments within a five-day period; afterwards, the court will render its judgment. Finally, with a favourable exequatur decision, the claimant will be entitled to ask the competent judge to enforce the award, through a executory proceeding (proceso ejecutivo).

  48. 48.Assuming that the award is covered by a convention applicable in your jurisdiction, how long does it take to obtain an order of enforcement in the first instance? How long does it take for the enforcement process to run its full course through to the last instance?

    The enforcement of a foreign award takes from three to four years.

  49. 49.Please compare how long it takes to enforce an arbitral award rendered abroad with how long it takes to domesticate a foreign judgement?

    The recognition and enforcement of a foreign arbitral award takes between three and four years. Now, since the exquatur procedure is the same for judgments and awards (CCP, articles 693-695), it generally takes the same time to enforce a foreign court ruling or a foreign award.

  50. 50.Please describe some significant recent experiences with the enforcement of foreign arbitral awards.

    Petrotesting Colombia SA & Southeast Investment Corp (Petrotesting) v Ross Energy SA

    Since its decision in Semar v Sunward Overseas (20 November 1992), the Colombian Supreme Court of Justice had applied the grounds for denying recognition and enforcement listed in the New York Convention as additional to those set forth by the Code of Civil Procedure (articles 693 to 694).

    On 27 July 2011, the court moved towards a new stance in the use of the New York Convention. When considering a request not to grant exequatur to a foreign ICDR award on several grounds set by the Code of Civil Procedure, the court determined that recognition could only be denied in the cases exhaustively listed in article V of the treaty. In addition, for the first time since the adoption of the Convention, the court analysed the scope of Colombian international public policy by interpreting Article V.2.b. of the instrument in question.

    Drummond Ltd v Ferrovías en Liquidación and FENOCO

    On 19 December 2011, the Supreme Court of Justice applied the case law rule set forth in Petrotesting as to the use of the New York Convention. Indeed, when deciding on certain objections raised against the recognition of two ICC awards, the court rejected those in which no specific provision of the Convention had been invoked. In addition, as opposed to its 1999 decision in Merck v Tecnoquímicas (26 January 1999), the court recognised the final and binding character of partial awards.

  51. 51.To what degree has ‘public policy’ been a ground to refuse enforcement of an international award rendered abroad?

    The violation of public order provisions is a ground for refusing the enforcement of a foreign arbitral award (New York Convention, article V.2.b). The Supreme Court has held that disregarding a mandatory provision does not itself amount to a violation of public policy; rather: “[…] the concept of ‘public policy’ that may prevent a court of law from granting recognition and enforcement to a ‘foreign award’, made under the aforementioned New York Convention, is limited to the basic or fundamental principles of legal institutions, such as: the prohibition to exercise rights abusively, good faith, the arbitral tribunal’s impartiality and due process. Therefore, the contravention of a mandatory provision of the exequatur judge’s forum does not entail itself a violation of [international public policy] […]” (SCJ, Decision dated 27 July 2011) .

  52. 52.Can a foreign arbitral award be enforced if the award has been set aside by the courts at the seat of the arbitration?

    There is no case addressing the issue of whether an award may be enforced if it has been set aside at the seat.

  53. 53.What is your view of the future of international arbitration and is the trend positive in your jurisdiction? What advice do you have with respect to dispute resolution for a foreign lawyer advising a foreign client contemplating entering into a business deal with a company from your jurisdiction?

    Colombia has a long tradition in international arbitration and the legislation applicable to it is in constant evolution, as evidenced by the fact that a whole New National and International Arbitration Statute is likely to be approved by the Congress in 2012. However, there is no reason to believe that the number of international arbitrations seated in Colombia will increase or decrease in the next years. Foreigners wishing to enter into a commercial transaction in Colombia should take into account that:

    • there is a strong line of thought considering the provisions governing commercial agency agreements in Colombia as mandatory, based on article 1328 of the Code of Commerce; and

    • an issue which is not expressly listed as a ground to set aside an award may be considered as a ‘vía de hecho’ violating fundamental rights, so enabling a successful challenge through the ‘tutela’ to take place.

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