Colombia

Eduardo Zuleta and William Araque

Gómez-Pinzón Zuleta Abogados SA

  1. 1.Outline the court system in your jurisdiction.

    The judiciary in Colombia is unitary and jurisdiction is one. However, at least two classifications of jurisdiction are admitted in practice. On the one hand, a difference may be set between: (i) the contentious jurisdiction (jurisdicción contenciosa), which concerns the settlement of disputes; and (ii) the voluntary jurisdiction (jurisdicción voluntaria), which refers to those cases in which, despite there is no dispute, court intervention is required (eg, judicial authorisation required for selling a minor’s goods).

    The second classification divides jurisdiction in two. First, the ordinary jurisdiction, which is empowered to decide on civil, labour and criminal cases. It is composed by the following organs:

    • the Supreme Court of Justice;

    • the Superior Tribunals of the Judicial Districts;

    • the circuit judges; and

    • the municipal judges (Constitution, art. 116; Law 270/96, art. 11).

    However, attention should be drawn to the fact that this hierarchy may vary in criminal, labour and family matters.

    Second, the special jurisdictions, which include, among others:

    The contentious-administrative jurisdiction, which decides on disputes related to administrative law. It is hierarchically organised as follows:

    • Council of State;

    • administrative tribunals; and

    • administrative judges (Constitution, art. 116; Law 270/96, art. 11).

    The constitutional jurisdiction, which core elements may be outlined as follows:

    • all judges are empowered to rule on actions for the protection of constitutional rights and any such decisions may be chosen to be reviewed by the Constitutional Court, at the latter’s discretion;

    • the Constitutional Court decides on the constitutionality of laws, whenever the public constitutionality action has been raised; and

    • any person is entitled to request the Council of State to determine whether an administrative act is adjusted to the Constitution and the law, through the nullity on grounds of unconstitutionality action (Constitution, art. 86, 241 & 237.2).

    Other special jurisdictions are provided for the military, indigenous peoples, among others. In addition, certain administrative entities are granted limited jurisdictional powers (eg, the Superintendence of Industry and Commerce, the Superintendence of Corporations, the Superintendence of Finance and the National Health Superintendence) (Constitution, art. 116).

  2. 2.What remedies are available to a party that is in a dispute with a foreign entity? Do the laws provide foreign entities the same rights afforded to local entities? Are there laws requiring foreign entities to post a bond or other security before they can defend a suit?

    The foreign character of an entity involved in a dispute in Colombia does not give rise to any restriction on the available remedies. Now, two scenarios must be distinguished in this regard.

    First, in cases concerning contractual liability, where both parties have acquired obligations to each other, the aggrieved party may request the payment of damages in addition to:

    • specific performance; or

    • the contract’s resolution (CC., art. 1546).

    Second, where non-contractual liability is at issue, the aggrieved party may ask for the payment of all damages due (CC., art. 2341).

    There is no statutory provision requiring foreign entities to post a bond or other security before defending a suit.

  3. 3.What is the most common type of litigation encountered in your jurisdiction by foreign entities (for example, claims for breach of contract, employment or some other issues)?

    Foreign entities are mostly involved in:

    • labour disputes, where former employees seek to obtain compensation for unjustified dismissal;

    • litigation seeking the declaration of a contract as a commercial agency agreement, so as to take advantage of the special compensation and indemnities statutory law provides for commercial agents;

    • litigation for the payment of amounts due; and

    • contractual litigation for breach of contract.

  4. 4.How frequently do parties pursue criminal actions (eg, querellas) in the context of commercial disputes? May criminal trial evidence be adduced in follow-on civil litigation? May civil cases be brought concurrently or after criminal litigation?

    It has become frequent to pursue criminal actions in the context of commercial litigation. The fact that a means of evidence has been used in a criminal trial does not prevent it to be submitted in any subsequent civil litigation proceedings. There are two procedural regimes applicable to criminal cases litigated in Colombia and both allow to bring civil litigation concurrently with criminal litigation.

    First, Law 600 of 2000 governs the proceedings for criminal offences taking place in Bogotá and other regions before 1 January 2005. This statute provides the victims with the possibility to seek the payment of damages, before civil courts or within the criminal proceedings, at the aggrieved persons’ choice (Law 600/00, art. 45).

    Second, Law 906 of 2004 applies to proceedings for criminal offences occurred in Bogotá and other regions after 1 January 2005 (Law 906/04, art. 533). The latter statute provides that, within the thirty days following the issuance of a decision against the offender, victims may file a request for making their rights to truth, justice and compensation effective (Law 906/04, arts. 102-106, as modified by Law 1395/10). Thus, damages are discussed within the criminal proceeding itself.

  5. 5.Is there a right to a trial by jury in a commercial dispute?

    Trial by jury does not currently exist in Colombia. Thus, there is no right to a trial by jury for commercial disputes’ litigation.

  6. 6.Do courts require or strongly encourage mediation before or during a litigation proceeding?

    In civil, family, labour and administrative cases, where the subject-matter of the dispute is capable of been directly settled by the parties, extrajudicial conciliation is a prerequisite to commence litigation (Law 640/01, art. 35). Thus, there is a state policy in favour of mediation.

  7. 7.Will choice of law and choice of forum provisions in a contract be enforceable recognised?

    In principle, if a contract has a foreign element, nothing prevents the parties from choosing the law applicable to it. However, courts are likely to take a restrictive approach in this regard, allowing choice of law solely in two scenarios:

    • where it has been provided that disputes will be resolved through arbitration and such arbitration is international under article 1 of Law 315 of 1996 (Law 315/96, art. 2); or

    • if the contract at issue is to be executed abroad (CCo., art. 869).

    Colombian law does not allow parties to waive or prorogue the jurisdiction of Colombian courts. Foreign decisions concerning matters subject to the exclusive jurisdiction of Colombian courts of law are not enforceable in Colombia (CCP., art. 694).

  8. 8.Does your jurisdiction have specific arbitration law? Are arbitration awards enforced by the courts? May courts enjoin or prohibit arbitration proceedings in matters that are also pending in a court proceeding?

    Arbitration law

    The foundation stone of arbitration in Colombia is article 116 of the Constitution. Law 315/96 governs international arbitration, while the statutes applicable to domestic arbitration are basically Decree 2279/89, Law 23/91, Law 446/98 and the CCP. It is also worth mentioning Decree 1818/98, which compiled the provisions applicable to both domestic and international arbitration. However, the statute omitted norms which are in force and included others which are not. Finally, Law 80/93 (articles 68 to 75) governs arbitrations related to state contracts.

    Colombian international arbitration law is not based in the UNCITRAL Model Law. Indeed, Law 315/96 only includes, with certain modifications, Art. 1(3) of the Model Law. However, on 26 July 2011, the Colombian Government submitted a Draft National and International Arbitration Statute before the Congress. The Bill’s international arbitration chapter is based on the Model Law and includes the 2006 amendments.

    Enforcement of awards

    Courts generally grant enforcement of arbitral awards rendered in Colombia. If the award is foreign, a prior exequatur would be required.

    Matters simultaneously submitted to court and arbitral proceedings

    Courts cannot enjoin or prohibit arbitration proceedings in matters that are also pending in court proceedings. To the contrary, where lawsuit related to a matter covered by an arbitration agreement is filed, courts will refer the parties to arbitration at the request of the defendant. In such scenario, the interested party must raise the arbitral agreement as an exception towards the court’s jurisdiction (New York Convention, art. II.3; Law 315/96, art. 1; CCP, art. 97).

  9. 9.Do the courts recognise attorney-client privilege? If so, is the privilege applicable to in-house lawyers?

    The Colombian Constitution expressly recognizes and protects professional secrecy (Constitution, art. 74). In addition, article 214 of the CCP expressly includes professional secrecy as an exception to the duty to render witness statements (CCP, art. 214). These provisions would be applicable also to in-house lawyers.

  10. 10.Are legal proceedings public? In other words, can the general public observe hearings and review the filings of the parties?

    Pursuant to Article 26 of Decree 196/71, files and decisions in judicial or administrative proceedings can only be examined by: (i) public servants exercising their powers; (ii) attorneys admitted to practice in Colombia exercising their mandate; (iii) the parties; (iv) persons appointed as court assistants (auxiliares de la justicia) for the proceedings in question; (v) directors and members of legal clinics (consultorios jurídicos) in proceedings in which law authorizes them to act as counsel; and (vi) law students engaged as pupils of attorneys admitted to practice in Colombia. Hearings are generally public.

  11. 11.May a defendant join other potentially liable parties into the existing lawsuit?

    Yes. In cases affecting third parties, the following scenarios must be distinguished: (i) if an uniform decision for all parties is required, so that they must necessarily join into the lawsuit for the proceedings to be valid (litisconsorcio necesario); (ii) if the parties may voluntarily join into the proceedings for reasons of judicial economy (litisconsorcio facultativo); and (iii) those cases where law expressly indicates that the decision resulting from the process may produce effects over certain third parties (eg, debtors of obligations in solidum) (litisconsorcio cuasinecesario) (CCP, arts. 50, 51 & 52). In addition:

    • the respondent may request the judge to order the person from whom it has directly or indirectly acquired the assets which defects have given rise to the lawsuit to take part in the proceedings (denuncia del pleito). In this case, the decision resulting from the court proceedings will resolve also the issues concerning the relationship between the respondent and such third party (CCP, art. 54).

    • persons having a substantive relationship with one of the parties, who could be affected if a decision unfavorable to such party is issued, may also intervene in the proceedings to support said party’s case (coadyuvancia) (CCP, art. 52).

    • if the judge finds that collusion or fraud to the detriment of a third party is taking place, it is empowered to summon such third party to the proceedings (llamamiento ex officio) (CCP, art. 58).

    • the respondent may file a Guarantee Summons Request (llamamiento en garantía), whereby “[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 the matter to be resolved in the same proceedings…” (Free translation. CCP, art. 57).

  12. 12.How may a party enforce a foreign judgment?

    To be enforceable in Colombia, a foreign judicial decision must comply with the following conditions:

    • not be related to in rem rights over assets located in Colombia at the commencement of the proceedings;

    • be consistent with Colombian public policy provisions;

    • be final under the law of the country where it was issued;

    • refer not to matters subject to the exclusive jurisdiction of Colombian judges;

    • concern not to disputes which have already been decided by national judges, or subject to judicial proceedings in Colombia; and

    • be the result of a proceeding duly notified to the respondent, in which the latter could answer the claim, in accordance to the law of the country where the judgment was rendered.

    The last requisite is presumed to be fulfilled because of the final character of the decision (CCP, art. 194). Now, the enforcement of judgments requires both an exequatur and an execution proceeding to be followed. The exequatur claim must be submitted before the Civil Chamber of the Supreme Court of Justice. The claimant must:

    • provide a copy of the award and a translation thereof to Spanish (where applicable);

    • summon the losing party before the court; and

    • request the production of any pertinent means of evidence. The non-fulfilment of any of these requisites prevents the claim from been admitted (CCP, art. 695).

    In turn, the decision admitting the claim shall be notified to both the losing party in the foreign proceedings and a delegate civil attorney. There is a five-day period for each of them to join the court proceedings. Throughout such period, the civil attorney and the losing party may request the production of the necessary pieces of evidence. After the said period’s expiry, the Supreme Court must decide on any request for the production of evidence. Thereafter, each party will submit its closing arguments within a five-day term and, later on, the Court will issue its decision (CCP, art. 695). With a favourable exequatur judgment, the claimant may commence an execution proceeding before the competent judge (CCP, art. 695).

  13. 13.How much time does a party have to answer a complaint? Can a party extend this time?

    Pursuant to Law 1395 of 2010, most civil and commercial disputes are to be resolved through one of the following two procedures.

    First, the so-called oral proceeding for major and minor claims (proceso verbal de menor y mayor cuantía), in which case the answer to the complaint must be submitted within the ten days following the notification of the claim (CCP, art. 428).

    Second, the summary oral proceeding (proceso verbal sumario), where said answer shall be filed no later than four days after the submission of the complaint (CCP, art. 436).

    Please note that these provisions are being applied only in certain courts. However, oral proceedings will be implemented in all courts in the following years.

  14. 14.How long does it take to obtain a first-instance judgment in a typical commercial litigation case?

    The issuance of a first-instance judgment on a commercial dispute generally takes between three and four years. In complex cases, it may take from five to six years.

  15. 15.Is a party required to submit all facts, arguments and supporting evidence with its initial pleading?

    In the civil jurisdiction, the claim must include all facts, the legal grounds supporting the claimant’s position, as well as the request for the pertinent means of evidence (CCP, art. 75).

  16. 16.Does litigation provide a process for investigating claims or right to discovery of evidence prior to trial?

    There is no discovery, as understood in the United States, in Colombia. The Colombian Code of Civil Procedure allows a person intending to file a claim or fearing to be sued, to:

    • ask its prospective counterparty to answer a questionnaire on the facts related to the subject matter of the proceedings (CCP, art. 294);

    • request its prospective counterparty or third parties – where appropriate – to disclose documents or accounting books, as well as to exhibit movable goods (CCP, art. 297);

    • ask for witness statements to be rendered (CCP, art. 298; Law 1395/10, art. 12);

    • request the practice of a judicial inspection on persons, documents, locations or goods (CCP, art. 300); and

    • ask for the submission of expert reports (CCP, art. 300).

  17. 17.Does litigation provide a process to subpoena or obtain documents or testimony from third parties?

    Where the documents a party intends to use in litigation are in a third party’s hands, the former may request the court to order them to be disclosed (CCP, art. 283). On the other hand, the Colombian Code of Civil Procedure expressly provides that “[a]ny person has the duty to render the witness statement requested [by a competent authority], unless otherwise provided by law” (CCP, art. 213).

  18. 18.Does the judge or opposing counsel examine witnesses?

    Colombian judges are empowered to order the confrontation of witnesses both between them and with the parties (CCP, art. 230). Therefore, both the judge or opposing counsel may examine witnesses.

  19. 19.How may evidence be challenged? Are there specific rules of evidence?

    Rules

    There are specific rules of evidence in Colombia, applicable to documentary evidence, witness statements, expert reports, site inspections, among others.

    Challenge

    In Colombia, the authentic character of documents may be challenged by requesting a comparison between the handwriting and signatures thereof with those used in other documents (CCP, art. 293); or by submitting a written request for the document to be declared false within the time limits provided by the Code of Civil Procedure (CCP, art. 289). In turn, witness statements may be challenged through:

    • a confrontation between witnesses, or between them and the parties (CCP, art. 230);

    • a challenge that must be submitted before or during the hearing in which the testimony would be rendered, showing that the witness in question is suspicious, unnecessary or unsuited to testify (CCP, art. 218).

    Finally, experts may be challenged before their reports are submitted, for the same reasons applicable to challenges against judges (CCP, art. 235). Now, when an expert report has already been issued, the parties are entitled to challenge it on grounds that mistakes were committed (CCP, art. 238.4).

  20. 20.Do courts typically allow hearings at or before a trial? At what state may parties present expert witness testimony?

    Hearings are allowed before trial where anticipatory evidence has been requested (see question 13 above). On the other hand, witness statements may be requested or submitted by the parties with the claim or the answer to the complaint (CCP, arts.75 77, 92 & 183).

  21. 21.What must be demonstrated to collect a debt based on a written instrument?

    A document grants the right of execution when it has been issued by the debtor and expressly indicates a clear, express and enforceable obligation (CCP, art. 488).

  22. 22.What remedies are available in your jurisdiction to a minority shareholder of a corporation in a dispute with the corporation or the majority shareholders?

    A minority shareholder is entitled to mainly three special remedies, in addition to those provided by the general rules on contractual and non-contractual liability (see question 2).

    First, a decision made by the shareholders’ assembly or the board of directors may be challenged by the absent or dissenting shareholders within the two months following the date when the decision was made or registered, on grounds that it is not adjusted to law or to the company’s bylaws (CCo., art. 191).

    Second, if there has been an abuse of right by the majority, the minority shareholder is entitled to compensation for any damages suffered (CCo., art. 830; Law 1258/08, art. 43).

    Third, in the case of the so-called Sociedad por Acciones Simplificada – a new type of corporation introduced by Law 1258 of 2008 – the shareholders’ abuse of the right to vote gives rise to:

    • the obligation to compensate any damages caused; and

    • the action of annulment against the act in question (Law 1258/08, art. 43). Please note that an abuse of the right to vote occurs whenever it is exercised for either obtaining an unjustified advantage for oneself or on behalf of a third party, or to the detriment of the company or other shareholders.

    In addition, any person may directly file a claim against a company’s administrators for obtaining compensation of all damages caused by their wrongful conduct (acción individual de responsabilidad). A similar action may be raised by the company itself (acción social de responsabilidad) (Law 222/95, art. 25).

  23. 23.What rights are available in the courts for someone holding a maritime lien interest in a vessel?

    Colombian law provides special naval privileges on the vessel for the following credits:

    • taxes and judicial costs related to the ship, owed to the treasury and caused during the last year or voyage;

    • expenses incurred for selling the ship and distributing its price, or related to the vessel’s custody and maintenance, since the ship’s entry in the last harbour;

    • credits caused by labour contracts concluded with the captain and crew, as well as by other services provided by persons on board;

    • payments due because of salvage and assistance, in case of general average;

    • compensation of damages caused by the collision of vessels or other accidents;

    • credits originated in contracts duly concluded by the captain outside the port of registry, for attending a real need of preserving the ship or continuing the voyage;

    • debts owed to materials’ suppliers, workers and craftsmen, engaged in the manufacture of a vessel which has not sailed for the first time yet; and

    • sums owed by the shipowner for any work or supply related to a vessel’s repairs and provisions, made at the port of registry after the ship has sailed at least once (CCo., art. 1556).

    In the cases listed above, the creditor is entitled to obtain payment from the product of the ship’s sale (CCo., art. 1555).

    In addition, Decision 487 of the Andean Community provides naval privileges on the vessel for the following credits:

    • salary and other credits owed to the captain, officer and other crew members;

    • compensation for death or injury occurred in land or at sea, provided that such damages are directly related to the exploitation of the ship;

    • compensation for salvage;

    • sums owed for groundage, use of channels and other waterways and pilotage;

    • sums owed because of non-contractual negligence in material losses or damages caused by the ship’s exploitation. Loss or damage caused to the charge or containers, among others, is excluded from this provision (Decision 487, art. 22).

    Decision 487 regulates the benefits of owners of the abovementioned credits.

  24. 24.What rights are available for a party holding a security interest in real property and personal property? Are there expedited proceedings to allow the recovery of property serving as security for debt obligations?

    Rights available for parties holding security interest in real and personal property

    The party holding a security interest in real property and personal property has the right to enforce the security through an executive proceeding if, as it is usual, the security is accompanied by a document that qualifies for executive action (see question 21). In addition, it must be called to become a party to proceedings initiated by third parties when the asset subject-matter of the security is attached, so as to make the security effective. Colombian law provides special privileges for creditors holding security interest on real and personal property. Credits are organised within the Civil Code in different groups, going from the first class (highest), to the fifth (lowest). Thus, lower class credits are to be paid only after those having a higher class have been satisfied. Whenever a pledge has been constituted over movable goods, the secured credit will be within the second class (CC., art. 2497). In addition, when the debtor’s assets are enough to satisfy first class credits, the pledged goods will be used first to pay the sums owed to the creditor having security interest over them (CC., art. 2498). Furthermore, where the creditor lawfully has the physical possession (tenencia) of the pledged good, he is entitled not to give it back until the credit has been paid (CC., art. 2421).

    On the other hand, if a mortgage has been constituted over non-movable goods, the credit will become a third class credit (CC., art. 2499). Since second class credits are always related to movable goods, in practice this security means that the credit prevails over all those which are not in the first class. However, first-class creditors can only obtain payment from the product of the mortgaged goods’ sale, as long as there are no other goods available to satisfy them (CC., art. 2500).

    Finally, when a mortgage or pledge has been constituted in favor of a creditor, such creditor may request judicial allocation of the collateral. In such case, allocation will be understood as payment of the obligation. This remedy is not available if more than one guarantee has been constituted over the goods in question (Law 1395/10, art. 37).

    Proceedings for recovering property serving as security for debt obligations

    The only scenario in which the creditor may hold tenancy (tenencia) of the collateral, is the civil and commercial pledge (excluding, of course, the pledge without tenancy set by the Code of Commerce). In case that the guaranteed obligation is satisfied, if the creditor fails to restitute the collateral, the debtor may recover it through a rei vindicatio action.

  25. 25.Describe the types of employment disputes that frequently result in litigation.

    Most employment claims pursue the declaration of the existence of a labour contract, in which case the worker will be entitled to obtain special benefits. Now, where a personal service is being directly provided, the existence of such contract is presumed; however, the employer may prove otherwise. At this point, it is worth to highlight that the core element of labour contracts is subordination, i.e. the fact that the employer could determine when, how and where the service was to be provided (LC., arts. 23 & 24).

    Disputes concerning the determination of whether a labour contract has been unjustifiably terminated are also usual. In those cases, if claimant succeeds, the employee will have to pay a compensation amounting to:

    • 30 days of salary for the first year of work and 20 days for each subsequent year, if the worker earned less than 10 monthly legal minimum wages; or

    • 20 days of salary for the first year of work and 15 days of salary for each subsequent year, if the salary exceeds 10 monthly legal minimum wages (Law 789/02, art. 28). The monthly legal minimum wage for 2011 was fixed at 535,600cps (Decree 033/11), which is equivalent to approximately US$290.

  26. 26.Does your jurisdiction allow class actions or some form of collective litigation proceeding?

    Colombian law allows basically two kinds of collective litigation proceedings. First, popular actions, which are intended to protect collective rights and interests; specifically, they may be raised to:

    • prevent imminent prejudices;

    • face perils, threats or offences affecting collective rights or interests; and

    • re-establish the situation preceding the wrongdoing (Law 472/98, art. 2).

    Second, there are also class actions, whereby a plural number of persons uniformly affected by the same cause, may request the payment of all damages (Law 472/98, art. 46).

  27. 27.Do government-owned or controlled entities enjoy any privilege when they are engaged in commercial activity and involved in a commercial or administrative litigation?

    In principle, entities owned or controlled by the government do not enjoy special privileges when they develop a commercial activity. However, there is a special benefit in favor of public entities in litigation: as a general rule, for the effects of an appealed decision to be suspended, the appellant must provide security for the payment of any damages such suspension may be likely to cause; however, no such security is required in case that the appellant is a public entity (CCP, art. 331).

  28. 28.Is injunctive or other relief available on an emergency basis?

    In Colombia, injunctions may be granted on an emergency basis in certain cases. Two indicative examples.

    First, in cases concerning unfair trade practices, it is possible to request the suspension of the wrongful act; in urgent circumstances, such measure may be adopted within the 24 hours following the request’s submission and without hearing the applicant’s counterparty (Law 256/96, art. 31).

    Second, the Council of State and the administrative tribunals may suspend the effects of administrative acts, as long as certain conditions are fulfilled (CAC., art. 152).

    The abovementioned measures may be requested even before the claim is filed.

  29. 29.Is injunctive relief or other relief available as part of a final award? If so, in what types of cases do courts usually provide injunctive relief?

    It is not uncommon for Colombian courts to issue final judgments containing orders to do or to abstain from doing something. Four indicative examples: First, specific performance is frequently ordered in civil litigation (see question 2 above). Second, the core relief sought in popular actions is an order to execute certain acts or to abstain from doing so (Law 472/98, art. 34). Third, the Constitution introduced the compliance action (acción de cumplimiento), whereby a person may request a court of law to order a reluctant authority to execute legal provisions or an administrative act (Constitution, art. 87). Fourth, where an action for the protection of fundamental rights (Constitution, art. 86) has been successfully raised, judges will order an authority or private person to do or to abstain from doing something.

  30. 30.What are the typical court fees and costs required to file a civil lawsuit?

    In civil litigation, the losing party is liable for the payment of three types of sums. First, the costs of the proceedings, the amount of which depends on the circumstances of the case. Where an appeal has been filed:

    • if the second instance judgment confirms the first instance decision in all parts, the appellant will be liable to pay the costs of the appeal;

    • where the appeal ruling revokes the lower decision, the losing party must pay both the first and second instance costs; and

    • whenever the appeal is partially successful, judges are granted discretion to allocate costs (CCP, art. 392).

    Second, the attorney’s fees and expenses, which will be considered in question 33.

    Third, the recently-introduced judicial tariff, fixed at 2 per cent of the tariff base, which in turn amounts to:

    • the total amount of money effectively obtained by the claimant; or

    • where the decision orders to do or to abstain from doing something, the sum determined by the court (Law 1394/10, art. 8).

    Fourth, a party requesting interim measures is liable for the damages caused by the adoption thereof. In this vein, in some cases courts require the constitution of a guarantee before adopting such measures (CCP, arts. 678-680).

  31. 31.Is a bond required for non-residence? What is the amount of the bond?

    In the context of civil lawsuits, bonds are required only in the cases specifically established by the Code of Civil Procedure; no distinction is made between residents and non-residents (CCP, art. 678).

  32. 32.What damages are available? How are damages quantified? Are punitive damages available?

    Colombian courts may award two kinds of damages. First, non-material damages, which refer to prejudices suffered by the human being affected by a wrongdoing causing it pain, affliction or affecting its relationships with others, as well as its social life; the payable amount for such damages is to be reasonably fixed at the court’s discretion (CSJ, Decision of 18 September 2009; Constitutional Court, Decision C-916/02).

    Second, material damages, which comprise both the actual losses of the aggrieved party and the income such party did not receive as a consequence of the breach of contract or wrongful act (CC., arts. 1613 & 1614). It is worth mentioning that only proven damages are compensable (CSJ, Decision of 09.08.99).

  33. 33.Is the losing party liable for attorneys’ fees and costs? If so, how are attorneys’ fees and costs determined and proved?

    In civil litigation the losing party is liable for the payment of three types of sums.

    First, the costs of the proceedings (costas procesales), the amount of which depends on the circumstances of the case. Where an appeal has been filed: (i) if the second instance judgment confirms the first instance decision in all parts, the appellant will be liable for the costs of the appeal; (ii) where the appeal ruling revokes the lower decision, the losing party must pay both the first and second instance costs; and (iii) whenever the appeal is partially successful, judges are granted discretion to allocate costs (CCP, art. 392).

    Second, pursuant to a resolution (acuerdo) issued by the Judiciary Superior Council, the losing party must pay the attorney’s fees and expenses (agencias en derecho) (Ac. 1887/03, art. 2). However, statutory limits to the payable sums have been established. For example, in commercial disputes, the limit for the first instance fees is 20% of the sum recognized or denied by the decision; if the judgment sets forth an obligation to do or to abstain from doing something, the maximum rate will be fixed at 5 monthly legal minimum wages (Ac. 1887/03, art. 6). There are detailed provisions on this matter for each judicial proceeding.

    Third, the recently-introduced judicial tariff (arancel judicial), fixed at 2% of the tariff base, which in turn amounts to: (i) the total amount of money effectively obtained by the claimant; or (ii) where the decision orders to do or to abstain from doing something, the sum determined by the court (Law 1394/10, art. 8).

    Please note that the latter sum is not awarded to the parties, but belongs to the state.

  34. 34.Will courts enforce a liquidated damages provision in a contract?

    Colombian courts will enforce a liquidated damages clause, as long as it does not exceed the limits established by statutory law, ie:

    • in civil contracts, liquidated damages cannot be higher than two times the amount of the obligation (CC., art. 1601); and

    • in commercial contracts, they cannot exceed the amount of the obligation (CCo., art. 867).

    The Code of Commerce further provides that, when the latter amount is not quantifiable, manifestly-excessive liquidated damages may be equitably reduced by judges (CCo., art. 867).

  35. 35.What is the appeal process against trial court decisions?

    The appeal must be submitted within the three days following the notification of the challenged decision before the same court issuing it, which in turn will rule on the recourse’s admissibility. If it is held to be admissible, the file will be sent to the second instance court and the parties are entitled to ask for the production of any means of evidence they deem necessary. Thereafter, when the appeal is to be decided by a Superior Tribunal or the Supreme Court of Justice, a date and hour for holding a hearing will be fixed. In such hearing, the parties have one opportunity to address the court for a maximum of thirty minutes; they may also submit a summary of their statements within the three days following the hearing. Finally, the competent court will issue its decision (CCP, arts. 350, ff.).

  36. 36.How frequently do appellate courts reverse trial court decisions?

    There are no available statistics in this regard. Appellate courts in general do not reverse first instance rulings unless they find a serious flaw in the decision.

  37. 37.May the courts entertain challenges to administrative decisions made by federal or local governments? If so, how frequently do courts reverse administrative decisions in favour of a private party?

    Colombia is a unitary state; thus, there are not federal governments and local authorities do not enjoy broad powers. Now, there are three main ways whereby courts may reverse administrative decisions.

    First, the Constitution established the nullity on grounds of unconstitutionality action, whereby the Council of State may reverse administrative acts contrary to the Constitution or laws (Constitution, art. 237.2).

    Second, any person may request a court to declare the nullity of an administrative act (CAC, art. 84).

    Third, any person unlawfully affected by an administrative act, may request it to be set aside, the compensation of any damages and the reestablishment of its rights (CAC, art. 85).

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