A Closer Look at Colombia’s Domestic and International Arbitration Processes

Introduction

Colombia has a strong arbitral tradition, with arbitration having been used to escape the heavily congested court system, where final decisions can take years to be obtained. The advantages of arbitration over court litigation in Colombia cannot be emphasised enough:

• Courts specialise in general areas of law (commercial law, administrative law, civil law, etc.) whereas parties may select arbitrators who specialise in the subject matter of their dispute.
• Although the Colombian General Code of Procedure establishes mandatory time limits for the duration of judicial proceedings, judiciary efficiency varies from court to court, and litigation may take, on average, three years, not including extraordinary motions such as cassation, which can add another three to five years, while arbitration significantly reduces the time to obtain a final decision.
• Court proceedings are generally public, and any material disclosed is to be held on the court record, whereas arbitration allows parties to have confidential proceedings.

Arbitration in Colombia is governed by Law 1563 of 12 July 2012 (the Arbitration Statute), which enshrines a dualist arbitration regime differentiating domestic arbitration rules from international arbitration rules (Section 1 and Section 3, respectively).

Dualism becomes essential when analysing the differences between domestic and international arbitration in Colombia. Regarding domestic arbitration, practitioners should be aware of the implications of its constitutional status under Colombian law. According to Article 116 of the Constitution of Colombia, the administration of justice is a function of the state and arbitrators are ‘temporarily entrusted’ with administering justice, in the same way as judges. Therefore, domestic arbitrators are equivalent to judges and their awards are equivalent to local judgments. This implies that challenges to domestic arbitration awards are akin to challenges to court judgments, and domestic arbitrators might be subject to a similar liability standard as judges.

Section 1 of the Arbitration Statute (rules regarding domestic arbitration) is based on the General Code of Procedure and the arbitration proceeding is deemed to be just another judicial proceeding. Parties are free to agree on the procedural rules except when a public entity is a party to the arbitration, in which case, the Arbitration Statute must be applied.^[2] However, in practice, parties do not agree on different rules of procedure. Therefore, matters not addressed by the Arbitration Statute or by specific contractual provisions are governed by domestic procedural laws. Mastering local practices and requirements becomes crucial in domestic arbitration owing to the detailed procedural rules that resemble those applied in court litigation.

Section 3 of the Arbitration Statute (rules regarding international arbitration) is based on the Model Law on International Commercial Arbitration of the United Nations Commission on International Trade Law Model (the UNCITRAL Model Law), with minor variations, intended to tailor international arbitration to local practices and to harmonise international arbitration seated in Colombia with global usages. If the parties do not agree on the applicable procedural rules, the tribunal may apply the procedural rules it deems appropriate.

This chapter focuses on the local practices, customs and specificities of both domestic and international arbitration in Colombia.

Domestic arbitration: requirements and local practices

As domestic arbitration is considered a judicial procedure under Colombian law, it is strictly regulated by law and parties’ ability to agree on the procedural matters is limited. Matters such as language (Spanish being mandatory), the requirements of the complaint, challenging arbitrators, admission of the complaint, the evidentiary stage, the issuance of precautionary measures and the possibility for third parties to intervene in the arbitration are decided and conducted in accordance with the rules included in the General Code of Procedure. In a few exceptional cases, when there is a express reference to it, the arbitration is conducted according to the Code of Administrative Procedure and Administrative Litigation whenever a public entity is involved.

Parties may agree on whether to have ad hoc arbitration or to designate a domestic arbitral institution to administer the arbitration, on an odd number of arbitrators, and on the method of appointment of arbitrators, and for their dispute to be decided in law or ex aequo et bono. However, even in such cases, there are certain limitations and special requirements that must be observed:

Liability of domestic arbitrators

Regarding disputes decided in law, arbitrators must be Colombian citizens and be admitted to practise in Colombia, and must fulfil the same requisites as judges of superior tribunals. As per the Arbitration Statute, disputes involving a public entity must be decided in law.

Only in domestic arbitration are arbitrators equivalent to judicial agents and arbitral awards equivalent to final judgments. Consequently, awards are issued ‘in the name of the Republic of Colombia’ and, as the administration of justice is a function of the state, the Judicial Branch could be held liable for judicial errors contained in arbitral awards. In a much-discussed decision, the Council of State decided that, even though arbitrators are entitled to administer justice on a transitional basis, if the Judicial Branch is held liable for judicial errors contained in arbitral awards, arbitrators who issue the award could also be held liable.^[3]

Appointment of domestic arbitrators and tribunal secretaries

Article 8 of the Arbitration Statute allows the parties to agree on two methods of appointment of the tribunal: they can either appoint the arbitrators by mutual consent or designate an arbitration centre or a third party to make the appointment.

In the former, parties must jointly and directly agree on the arbitrators forming the tribunal. In domestic arbitration, the parties are not allowed to appoint one co-arbitrator each. Mutual consent must be given regarding each arbitrator.

In the latter, the competent arbitration centre must designate the arbitrators by drawing from a list given by the parties or, in the absence of such a list, from its own lists of arbitrators. Appointment by draw has the advantage of democratising the designation of arbitrators, allows for young arbitrators to gain experience, and gives an additional assurance regarding the impartiality and neutrality of the tribunal. However, appointment by draw does not allow the parties to assure the level of expertise they desire from the tribunal deciding their case.

It is also possible to combine both mechanisms: the parties appoint one or two arbitrators, by mutual consent, and the rest are designated by the arbitration centre, or by a third party designated for that purpose.

If none of the above methods is chosen by the parties, then the arbitrators must be appointed by the civil circuit judge of the parties’ domicile.

Tribunal secretaries are selected by the arbitrators from the list of tribunal secretaries of each arbitral institution. Secretaries must be lawyers and cannot be a close family member of any of the arbitrators. Furthermore, secretaries cannot have a contractual relationship giving rise to subordination or dependence with any of the arbitrators. This is seen as a disadvantage because, often, arbitrators wish to have the flexibility of appointing lawyers working for them as secretaries.

Arbitral institutions

The arbitral institutions at the Bogotá Chamber of Commerce, the Medellín Chamber of Commerce for Antioquia and the Cali Chamber of Commerce are leading local institutions that administer both domestic and international arbitrations in Colombia.

The Arbitration Centre at the Bogotá Chamber of Commerce has reported that, regarding domestic arbitration in 2022, a total of 324 claims were filed and 104 awards were issued. Between January and June 2023, a total of 156 claims have been filed and 48 awards have been issued.^[4] Currently, the Bogotá Chamber of Commerce has two lists of arbitrators: List A with 444 arbitrators and List B with 133. There are 168 tribunal secretaries registered on the Arbitration Centre’s list.^[5]

Arbitrators included in List A are required to have at least 18 years of experience, the same qualifications as a justice from the highest courts (Constitutional Court, Supreme Court or Council of State or Supreme Council of the Judiciary), and are assigned to disputes worth more than the equivalent of 400 minimum wages.^[6] Arbitrators included on List B are required to have at least 10 years of experience, the same qualifications as a judge from a superior district tribunal, and are assigned to disputes worth less than the equivalent of 400 minimum wages.

Validity and enforcement of arbitration agreements

According to the Arbitration Statute, arbitration agreements must be in writing, clearly identify the parties, expressly reflect their mutual consent to arbitration, and the subject matter referred to arbitration must be capable of settlement (disposable rights) under Colombian law. An arbitration agreement that is included in a separate document is enforceable as long as the document expressly refers to the main contract.

Courts are required to enforce arbitration agreements. The General Code of Procedure establishes that courts must stay judicial proceedings and refer the parties to arbitration whenever the respondent files, as a preliminary objection, the existence of an arbitration agreement.^[7] If parties fail to indicate the existence of an arbitration agreement, it will be understood that they have renounced their agreement to settle their dispute via arbitration.^[8] In other words, Colombian judges are not allowed to dismiss ex officio a lawsuit on the grounds of the existence of an arbitration agreement.

Jurisdiction and choice of law

Under Colombian law, jurisdictional rules are of public order: if the requirements given by law are met and Colombian courts have jurisdiction, they must exercise it. Likewise, if the requirements given by law are not met and Colombian courts do not have jurisdiction over certain dispute, then courts cannot exercise jurisdiction, regardless of whether the parties agree to submit their dispute to Colombian courts.

Consequently, agreements between private parties granting or withdrawing court jurisdiction over disputes are not binding. It is only possible to depart from Colombian jurisdictional rules by means of arbitration agreements. Furthermore, in domestic arbitration, asymmetric arbitration clauses whereby one party is allowed to choose whether to initiate arbitration or litigation before Colombian courts are not enforceable.

Domestic arbitrations, generally, are decided under Colombian law. This is because Article 869 of the Colombian Code of Commerce provides that an agreement performed in Colombia is subject to Colombian law. This provision means that, in principle, it is not possible to agree on a different applicable law, unless (1) the underlying agreement is performed outside Colombia or (2) the parties validly agree on an international arbitration clause.

Challenges to domestic arbitral awards

Domestic arbitration awards and awards issued in arbitrations seated in Colombia have res judicata effects, are enforceable as a final and binding judgment by local courts and can only be challenged through requests to set aside the award or, exceptionally, through an application for revision of the award (recurso de revisión) or the judgment deciding on the annulment. An application for revision of an award is an extraordinary recourse that is available only when, after the award is issued, one of the parties becomes aware that the award is tainted by a serious irregularity or by fraud.

Requests to set aside arbitration awards are decided by the superior tribunal of the judicial district of the seat where the award was issued unless a public entity is a party to the arbitration. In the latter case, the decision is made by the Council of State. Applications for recurso de revisión are decided by the Civil Chamber of the Supreme Court or by the Council of State whenever a public entity is a party to the arbitration. According to data published by the arbitration centres of the Bogotá Chamber of Commerce and the Medellín Chamber of Commerce for Antioquia, between 30 per cent and 40 per cent of domestic arbitral awards are subject to setting-aside proceedings but only between 2 per cent and 3 per cent of awards are annulled.^[9] An arbitral award may be set aside if:

• the arbitration agreement is non-existent, void or non-opposable;
• the action has expired (caducidad) or the tribunal lacks jurisdiction or competence;
• the tribunal was not legally constituted;
• the petitioner was not duly represented in the proceedings, or was not served with notice of the process appropriately, provided that the circumstance had not been resolved;
• evidence requested in a timely manner had been denied or an unlawful failure to comply with an order to produce evidence had occurred, provided that this circum- stance had been alleged in a timely manner and missing evidence is material to the outcome of the decision;
• the award or the decision on its clarification, addition or correction was rendered after the expiry of the applicable time limit;
• it is manifest that the award was rendered ex aequo et bono and should have been rendered in law;
• the operative part of the award contains contradictions, arithmetical mistakes or mistakes caused by changes or modifications to its wording, provided that the circumstance was alleged before the arbitral tribunal in a timely manner; or
• the award exceeds the scope of the arbitrators’ jurisdiction, is more than requested by the claimant or fails to decide a part of the subject matter of the dispute.

Exceptionally, a constitutional action for the protection of fundamental rights (tutela) can be filed against arbitral tribunals to request a local court to immediately suppress or prevent any threat to fundamental constitutional rights. Regarding arbitration, the fundamental right usually invoked is due process.

Nonetheless, the infamous tutelas against arbitral awards proceed in very exceptional cases and proceed on very limited grounds; for example:

• the subject matter must be of constitutional relevance;
• the tutela must be subsidiary to all regular remedies, meaning that it is only available when all regular remedies have been filed or when there are no other judicial remedies available;
• it must be filed immediately, usually before six months have elapsed after the date of the award;
• procedural irregularities must be proven to be material to the decision or affect the fundamental rights of the petitioner;
• the violation of fundamental rights should have been argued during the arbitration; or
• the requesting party should comply with other specific admissibility requirements as stated by the law.

These types of actions therefore have a very low success rate.

International arbitration: local practices and the differences from the UNCITRAL Model Law

According to Section 3 of the Arbitration Statute, in international arbitration proceedings seated in Colombia, parties are free to agree on the procedural rules applicable to the resolution of their disputes. Failing any such agreement, the arbitral tribunal may conduct the arbitration with the procedural rules it deems appropriate and is not required to apply the rules of procedure of the seat of arbitration.^[10] Parties may also agree on a local or international institution to administer the arbitration; the applicable law; the language of the proceedings; arbitrators (as long as it is an odd number); and the method of appointing them. This is why there are few mandatory provisions in the Arbitral Statute regarding international arbitration.

Criteria to determine internationality

The criteria to determine whether arbitration is domestic or international are established under Article 62 of the Arbitration Statute, which is based on Article 1.3 of the UNCITRAL Model Law. Article 62 does not include the internationality criterion provided in Article 1.3(b)(i) of the UNCITRAL Model Law, according to which arbitration is international if the agreed seat of arbitration is located outside the state in which the parties have their place of business, nor the criterion included in Article 1.3(c) of the UNCITRAL Model Law, which provides that arbitration is international if the parties have expressly agreed that the subject matter of arbitration agreement concerns more than one country. Additionally, the Arbitration Statute includes an economic criterion derived from French law and absent in the UNCITRAL Model law: that arbitration is international if the underlying dispute ‘affects the interests of international trade’.

Therefore, pursuant to Article 62 of the Arbitration Statute, arbitration is understood to be international, only if (1) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their domicile in different states, (2) the place of performance of a substantial part of the obligations or the place with which the subject matter of the dispute is most closely connected, is situated outside the state in which the parties have their domiciles, or (3) the dispute submitted to arbitration affects the interests of international trade.

For example, a dispute between a party domiciled in Colombia and a party domiciled outside Colombia regarding a contract to be performed in Colombia is considered international, as long as the domicile of the parties was such when they entered into the arbitration agreement.

The Colombian Congress considered an important arbitration reform bill submitted in 2021.^[11] The bill was encompassed in a structural reform to the judicial system, which includes the objective to promote the existing alternative dispute resolution mechanisms. The bill includes a proposal to clarify and modify the internationality criteria set forth in Article 62 of the Arbitration Statute, drawing on the discussions and controversies that have surrounded the inter­nationality criteria since the enactment of the Arbitration Statute. Unfortunately, the proposed bill did not pass during the last legislature, but it is likely to be resubmitted.

The first modification regarding the international arbitration concerned the wording of Article 62, which led to discussions on whether parties could agree on the legal nature of arbitration (national or international) regardless of the internationality criteria. The Supreme Court has clarified that the criteria are objective and not subjective. The arbitration reform bill expressly provided that the legal nature of arbitration is defined by law and is not subject to the parties’ agreement.

The aim of the second modification was to clarify when parties are deemed to have their domicile in different states, if foreign companies have a branch in Colombia. In the mining and oil and gas industries, foreign companies usually enter into concession agreements. To do so, they are required to establish a branch or subsidiary in Colombia.^[12] Under Colombian law, branches have their own domicile even though they are the same legal entity as the foreign company. Hence, there has been some discussion as to whether an arbitration that involves domestic branches of foreign companies is international or not. One aim of the arbitration reform bill was to end this discussion by clarifying that arbitration will be deemed international even when the Colombian branch of a foreign company enters into the arbitration agreement. Regarding subsidiaries, there is no discussion: subsidiaries are Colombian companies. Therefore, under this criterion, a dispute between a Colombian company and a Colombian subsidiary (not branch) of a foreign company is domestic. The aim of another proposed modification was to clarify that arbitration is deemed international when the contract – and not only the dispute – affects the interests of international commerce. This amendment is welcomed because, currently, when entering into a contract, parties do not know whether the dispute will be international.

Finally, the bill included some further guidance for domestic courts on how to address requests for interim measures in support of international arbitration, among other proposed amendments.

Arbitrators: appointment and Kompetenz-Kompetenz

In international arbitration, arbitrators do not need to be Colombian citizens, are not required to be admitted to practise in Colombia and do not have to fulfil any special requirements.^[13] Failing agreement by the parties, if the arbitration agreement provides for a solo arbitrator, domestic courts are allowed to intervene to make the appointment; if the arbitration agreement provides for three arbitrators, each party must appoint an arbitrator and those two arbitrators proceed to appoint the third.^[14]

Since February 2023, the Bogotá Chamber of Commerce is no longer appointing international arbitrators by drawing from their lists and is now selecting the appropriate candidates following a list procedure. This means that the arbitral institution draws up a shortlist of candidates and each party strikes out two names and ranks the remaining arbitrators in order of preference. This is a very welcome adjustment as it guarantees that the appointed arbitrators are qualified and available for each proceeding.

Contrary to what happens in domestic arbitration, in international arbitrations seated in Colombia, awards are not issued ‘in the name of the Republic of Colombia’ and, to date, neither the Judicial Branch nor arbitrators can be held liable for judicial errors contained in their arbitral awards.

The Arbitration Statute expressly includes the negative and positive effects of the principle of Kompetenz-Kompetenz. On the one hand, intervention by domestic courts is limited to the matters expressly allowed by the Arbitration Statute: the appointment of arbitrators in the absence of an agreement by the parties, enforcement of arbitral orders, requests and enforcement of interim orders in support of arbitration, setting-aside proceedings, and requests for recognition and enforcement of arbitral awards. On the other hand, the arbitral tribunal is the only authority competent to decide on its own jurisdiction. A decision by a tribunal deciding on its own jurisdiction can only be challenged by a request to set aside the final award containing that decision.^[15]

Arbitral institutions

International arbitrations seated in Colombia or involving Colombian parties are usually held under the arbitration rules of the Arbitration Centre at the Bogotá Chamber of Commerce, the Medellín Chamber of Commerce for Antioquia, the International Chamber of Commerce, the London Court of International Arbitration, the International Centre for Dispute Resolution or the Swiss Chambers’ Arbitration Institution, among others.

In 2021, the Arbitration Centre at the Bogotá Chamber of Commerce reported that 17.5 per cent of the claims filed referred to international arbitration. In 91 per cent of cases, the internationality criterion used was the domicile of the parties at the time of the conclusion of the arbitration agreement.^[16]

Challenges to awards in international arbitration

International arbitral awards issued by an arbitral tribunal seated in Colombia may only be challenged through setting-aside proceedings. The grounds to set aside an arbitral award are limited to those established in Article 108 of the Arbitration Statute, which mirror the grounds established in Article 34 of the UNCITRAL Model Law.^[17]

Case law has consistently established that public order as a ground to challenge an international arbitral award must be interpreted restrictively as the international public order of Colombia, which equates to the essential values of Colombia’s public policy that cannot be departed from and that differs from the notion of internal public order.^[18] To date, only one international arbitration award has been annulled by domestic courts.^[19] In a heavily criticised decision, the Council of State decided to set aside the Consortium CUC-DTC v. Gecelca 3 award, as it considered the tribunal had disregarded the procedure agreed by the parties.

When none of the parties has its domicile or residence in Colombia, the parties may waive or narrow the grounds established in Article 108 of the Arbitration Statute for setting aside the arbitration award. This waiver must be recorded in the arbitration agreement or in a subsequent written agreement. When the parties to an international arbitration seated in Colombia completely or partially waive the grounds to set aside the arbitration award, enforcement of the award requires prior recognition as if it were a foreign award.

Requests for setting aside arbitral awards must be filed and sustained within 30 days of notification of the award or, where appropriate, notification of the additional award, an order that decides on the correction or clarification of the award, or an order that rejects the request for an additional award. A request to set aside the award does not suspend the possibility to enforce the award.

When deciding on the setting aside of the arbitral award, the competent court can only review whether any of the grounds for setting aside are met but cannot review the award on the merits of the case. The court’s decision is final and cannot be appealed.

As opposed to domestic arbitration, an application for recurso de revisión is not available for international arbitration awards or judicial decisions in respect of the setting aside of international arbitration awards.

Although awards issued in international arbitrations with their seat in Colombia may only be challenged through setting-aside proceedings, a lot of fear has surrounded the possibility of filing constitutional actions for the protection of fundamental rights (the infamous tutelas) against those awards. Nonetheless, this fear has almost completely vanished, as the Constitutional Court has made clear that constitutional actions for the protection of fundamental rights against international arbitration awards are extremely exceptional (i.e., even more than against domestic arbitration awards).^[20]

The Constitutional Court clearly stated that when deciding on constitutional actions for the protection of fundamental rights against awards of international arbitrations seated in Colombia, a higher standard must be observed because the Arbitration Statute expressly limits court intervention in this kind of proceedings, the principle of freedom to contract guides international arbitration and there are very limited and narrow grounds to set aside awards.

Furthermore, in July 2022, the Council of State issued a judgment based on the Constitutional Court’s decision where it further clarified that tutelas are not available for challenging procedural orders issued in international arbitrations seated in Colombia, thus guaranteeing a minimum level of intervention by local courts in international arbitration proceedings.

Recognition and enforcement of foreign arbitral awards in Colombia

Awards issued in international arbitrations seated in Colombia are deemed national arbitral awards and, therefore, may be enforced without following recognition proceedings, unless parties have waived or narrowed their right to set aside the award.^[21] Consequently, an award issued by a tribunal with its seat in Colombia is immediately enforceable, even when a request to set aside the award has been filed. Hence, the defeating party may request the immediate seizure of the debtor’s assets.

When the seat of arbitration is abroad, the arbitral award will be considered foreign and, to that extent, a creditor can only enforce it against a debtor with assets in Colombia, once it is recognised.

Foreign arbitral awards are enforceable in Colombia, regardless of the country of issuance, following recognition proceedings before the competent Colombian court (the Supreme Court of Justice, or the Council of State when a Colombian state entity is involved).

Recognition proceedings can take between one and three years, depending on the workload of the competent authority at the time of the request, the notification of the proceeding to foreign parties – if any – and the defences made by the party against whom recognition is requested. During the recognition process, parties are not allowed to request interim measures, to prevent, for example, the debtor from becoming insolvent. To this extent, when choosing the seat of arbitration, it should be carefully assessed whether the assets of the party against whom it is possible to enforce the award are exclusively located in Colombia. If that is the case, it is advisable to consider a city in Colombia as the seat of arbitration. Domestic awards do not need to be recognised; they are immediately enforceable.

The party seeking recognition must file a request before the competent court by submitting the original arbitral award, or a copy thereof. If the award is issued in a language other than Spanish, the party must also submit a translation.

The competent court may only refuse recognition of a foreign arbitral award under the exhaustive grounds established in the Arbitration Statute, which mirror the grounds established in Article V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (theNew York Convention) and under the grounds established in international law treaties signed and ratified by Colombia. The requirements under the General Code of Procedure do not apply to the recognition and enforcement of foreign arbitral awards.

Colombian courts have traditionally shown extreme respect for foreign arbitral awards.^[22]

Colombia is a state party to the New York Convention, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1965 (the ICSID Convention), the Inter-American Convention on International Commercial Arbitration of 1975 (the Panama Convention), and the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards of 1979.

Investment arbitration

Since 2019, six ICSID cases and one Permanent Court of Arbitration case against Colombia have been concluded. Most of the tribunals dismissed the claims for lack of jurisdiction and one accepted Colombia’s defence of manifest lack of legal merit. In the only award on damages and quantum issued against Colombia, the tribunal ordered Colombia to pay US$19 million to the claimant.^[23] Further, an award on jurisdiction, liability and directions on quantum has been issued in favour of the investor in a case brought by Eco Oro Minerals Corporation;^[24] however, an award on damages is still pending.

Currently, there are 14 investment arbitration cases pending against Colombia, 13 ICSID cases and one ad hoc arbitration. Of these, four cases are based on the 2008 Free Trade Agreement between Canada and Colombia, four on the 2012 Trade Promotion Agreement between the United States and Colombia, two on the 2010 bilateral investment treaty (BIT) between Colombia and the United Kingdom and Northern Ireland, two on the 2005 BIT between Colombia and Spain, and two on the 2006 BIT between Colombia and Switzerland.

Conclusion

Arbitration is widely used in Colombia as an alternative mechanism for dispute resolution. Although domestic arbitration follows some of the local litigation practices, international arbitration follows the UNCITRAL Model Law. Since the issuance of the Arbitration Statute in 2012, Colombia has strengthened its already strong arbitration tradition in harmony with the development seen in the international arena. It is expected that future amendments to the Arbitration Statute will reinforce this path.

Footnotes