Bank Financing

Last verified on Wednesday 28th February 2018

Colombia

Bernardo Cárdenas and Catalina Pinilla
Dentons Cardenas & Cardenas
  1. 1.

    What are the most common forms of bank financing in your jurisdiction?

  2. The most common forms of bank financing in Colombia are local or foreign loans (whether syndicated or not). Debt securities are not as common as bank loan financing in Colombia. It is also common to have project finance security packages for infrastructure projects, and corporate financing with complex guarantee structures as well as sponsor support agreements. In respect of bank financing in Colombia for individuals, the most common bank financing consists in consumer credits, mortgage loans, vehicle secured loans and leasing either for housing or vehicles.

  3. 2.

    Are any governmental or central bank registrations or approvals required for a foreign lender (being a lender not incorporated in your jurisdiction or operating through a branch or office outside of your jurisdiction) to lend to a borrower in your jurisdiction?

  4. No governmental approval is required for a foreign lender to lend to a borrower in Colombia. If the lender is of a foreign party, however, it must have a foreign lender code granted by the Colombian Central Bank.

  5. 3.

    Are there any foreign exchange provisions restricting, or governmental or central bank registrations or approvals required for, a borrower in your jurisdiction to contract debt obligations in a foreign currency or to remit funds abroad?

  6. Colombian residents can freely contract foreign currency debt with foreign lenders; however, foreign exchange regulations shall be followed, including: 

    • foreign lenders shall have a foreign lender code assigned by the Colombian Central Bank;
    • the foreign debt obligation shall be informed to the Colombian Central Bank; and
    • disbursements of the debt obligation and remittance of funds abroad to make payments shall be duly informed to the Colombian Central Bank and conducted through the commercial exchange market.

    The commercial exchange market consists of all formal exchange transactions (payments between Colombian residents and foreign residents in respect of foreign investments, imports, exports, foreign indebtedness, derivatives and guarantees in foreign currency, among other operations), which must be mandatorily channelled through foreign exchange intermediaries (eg, banks and financial entities) or compensation accounts (offshore bank accounts registered with the Colombian Central Bank and subject to periodic reporting obligations before the Colombian authorities). Colombian residents can denominate their debt obligations among them in a foreign currency but disbursements and payments shall be made in local currency. 

  7. 4.

    Are there any governmental or central bank registrations or approvals required for the prepayment of loans abroad?

  8. There are no governmental approvals required for the prepayment of loans abroad. Prepayments under foreign indebtedness operations, as well as any payment, must be conducted through the foreign exchange market and informed to the Colombian Central Bank.

  9. 5.

    Are any mandatory governmental or central bank deposits required to be made from loan proceeds?

  10. In the event of foreign indebtedness operations, Colombian foreign exchange regulation provides for a deposit to be made with the Colombian Central Bank prior to each disbursement in compliance with the terms and conditions established by the Colombian Central Bank board of directors’ resolutions. The current percentage of such deposit, according to Resolution 10 of 2008 issued by the board of directors of the Colombian Central Bank, is, however, zero per cent.

  11. 6.

    Describe any governmental measures that may be taken to declare a moratorium on the loan obligations of private companies.

  12. Although there is no specific rule providing a governmental authority to declare a moratorium on foreign private credits, the Colombian Central Bank, as the foreign exchange maximum authority, may take measures that prevent the exchange of local currency for foreign currency or the remittance of funds abroad or turn unavailable any legal exchange market.

  13. 7.

    Describe any environmental liabilities and any other areas of lender liability that may arise as a result of the activities of a borrower or the realisation of a security interest.

  14. In Colombia, the holder of an environmental licence, permit, authorisation or concession is solely responsible for any environmental damage caused by its contractors or dependants. Therefore, the lender will not be held responsible in case any environmental liabilities arise as a result of the activities of the borrower. As a general provision, the lenders will not be liable for activities performed by the borrower.

  15. 8.

    Are interest payments or loan fees subject to a withholding tax?

  16. Indebtedness obtained abroad by Colombian tax residents generates national source income for the beneficiary of the interest payments. Payment of interest under the loan derived from foreign indebtedness regardless of its term is subject to withholding tax at a 15 per cent rate. 

  17. 9.

    What other taxes or mandatory fees, for example, transaction, registration or documentary, apply to loan transactions?

  18. There are no other taxes or mandatory fees triggered by the execution of a loan agreement.

    There is currently a stamp tax; however, its rate remains at zero per cent.

  19. 10.

    Are there different taxes applicable to loans repayable to lenders in your jurisdiction and loans repayable to lenders in a foreign jurisdiction?

  20. Yes. As mentioned above, payment of interests derived from foreign indebtedness regardless of its term is subject to withholding tax at a 15 per cent rate.

    On the other hand, according to article 395 of the Colombian tax code, interest generated from loans repayable to lenders in Colombia triggers income tax and will be subject to withholdings in Colombia at a general rate of 7 per cent over the payment. However, please note that the income tax payable in Colombia will be at the following rates, depending on the taxpayer:

    Legal persons: 34 per cent rate for 2017 plus a 6 per cent surtax if taxable income exceeds 800 million pesos; 33 per cent rate for 2018 plus 4 per cent surtax if taxable income exceeds 800 million pesos. From 2019 there will be a flat rate of 33 per cent.

    Individuals: Subject to a progressive rate that could go up to 35 per cent (according to article 241 of the Colombian Tax Code).

  21. 11.

    Is your country party to any double taxation treaties that reduce taxes payable by borrowers in respect of loan payments abroad?

  22. There are double taxation treaties that provide for different withholding tax rates depending on whether the lender is a financial institution. The following are the double taxation agreements (DTAs) currently in force and the corresponding applicable withholding rate:

    DTA

    Approving Law

    Financial institution (per cent)

    Not financial institution (per cent)

    Andean Community of Nations (Peru, Ecuador and Bolivia)

    Decision 578

    15 per cent[1]

    15 per cent[2]

    Spain

    Law 1082 of 2006

    0 per cent

    10 per cent

    Chile

    Law 1261 of 2008

    5 per cent

    15 per cent

    Switzerland

    Law 1344 of 2009

    0 per cent

    10 per cent

    Canada

    Law 1459 of 2011

    10 per cent

    10 per cent

    Mexico

    Law 1568 of 2012

    5 per cent

    10 per cent

    South Korea

    Law 1667 of 2013

    Up to 10 per cent

    Up to 10 per cent

    Portugal

    Law 1693 of 2013

    Up to 10 per cent

    Up to 10 per cent

    India

    Law 1668 of 2013

    Up to 10 per cent

    Up to 10 per cent

    Czech Republic

    Law 1690 of 2013

    zero per cent1

    Up to 10 per cent

    There are signed agreements with France, Italy, the United Arab Emirates and the United Kingdom which approval before Congress is pending. Colombia is currently negotiating DTAs with the following countries: Belgium, France, the United States, Germany, the Netherlands and Japan. Such countries were included in the negotiation agenda set up by the Colombian government in March 2007.

    In addition to the DTAs listed above, Colombia has signed agreements to avoid double taxation regarding income tax and equity tax in the transport and/or maritime navigation or air transportation with Germany, Argentina, Brazil, Chile, the United States, France, Italy, Panama and Venezuela. 

    [1] This is the general withholding tax rate applicable in Colombia for interest payments abroad.

    [2] This is the general withholding tax rate applicable in Colombia for interest payments abroad.

  23. 12.

    Do any financing structures receive favourable tax treatment, such as prepayments of exports?

  24. Yes. According to article 25 of the Colombian Tax Code, however, loans granted by a foreign supplier to finance pre­payments do not generate Colombian source income and as such do not trigger income tax and are not subject to withholdings. Loans obtained by local financial institutions will have the same treatment.

  25. 13.

    Describe any limitations on interest rates or the ability of lenders to charge default interest under loan agreements.

  26. There are currently no limitations on the interest rates chargeable under foreign indebtedness transactions among private parties, nominated in a foreign currency. In the event the debtor is a Colombian public entity, the current interest rate shall not exceed the maximum rate established by the Colombian Central Bank.

    Under Colombian law, interest on past due amounts of interest may only be charged after a claim has been filed or if the parties agree to the same, but only if such interest has been due for a year.

  27. 14.

    Describe any restrictions that may apply to the choice of law, for example, whether a choice of New York or English law will be recognised and enforced in your jurisdiction.

  28. The choice of the laws of another jurisdiction to govern the performance and the enforcement of the indebtedness agreement is a valid choice and should be honored in a suit on any of the provisions thereof brought in the courts of Colombia, subject to the proof of the applicable provisions of the laws of such jurisdiction in the manner provided for in such proceedings in Colombia and solely to the extent that the provisions of said law do not contravene the public policy of Colombia. If, however, pursuant to the document governed by a law other than Colombian law and submitted to the jurisdiction of courts other than Colombian courts, a party to such Opinion Document were to initiate judicial actions in Colombian courts, there are no explicit laws and regulations or Colombian court decisions with precedential value pursuant to which it is possible to conclusively determine if a Colombian judge assuming jurisdiction over the case would apply Colombian law or the laws of another jurisdiction or how such Colombian judge would recognise, apply, interpret or construe the laws of such other jurisdiction.

  29. 15.

    Describe generally the requirements for the enforceability of a foreign judgment in your jurisdiction in respect of an outstanding loan.

  30. For a foreign judgment to be enforceable in Colombia, it must be recognised in accordance with the rules contained in articles 605 through 607 of the General Procedure Code as applicable, pursuant to which, a demand for an "exequatur" (recognition by the Colombian Judicial System of a foreign judicial decision) must be filed before Colombia's Supreme Court.

    Article 605 of the General Procedure Code provides for enforcement of judicial decisions by Colombian courts provided that either diplomatic (by treaty) or legislative (by statute or other source of law) reciprocity exists between the Courts of Colombia and the courts of the relevant non-Colombian jurisdiction, and provided that certain additional requirements contained in article 606 of the General Procedure Code have been met, as set out below.

    If reciprocity were found to exist between Colombia and another jurisdiction, a judgment of that other jurisdiction would be recognised and enforceable in Colombia provided that the following requirements of article 606 of the General Procedure Code are met: (i) the foreign judgment is not related to "in rem" rights vested in assets that were located in Colombia at the moment of initiation of the proceeding where the decision was rendered; (ii) the foreign judgment does not conflict with the public order laws of Colombia, excluding procedural laws; (iii) the foreign judgment is final under the laws of the country in which it was obtained and is in full force and effect (res judicata), and a duly authenticated copy of such judgment has been presented to the relevant Colombian court; (iv) the matter that was adjudicated is not of the exclusive jurisdiction of Colombian courts; (v) no proceedings are pending in Colombia with respect to the same cause of action, and no final judgment has been rendered by a Colombian court over the same subject matter; and (vi) in the proceedings commenced before the court which issued the foreign judgment, the defendant was served in accordance with the law of such jurisdiction and the proceedings were conducted in a manner that allowed the defendant to present its case.

    Once the foreign judgment has been recognised in Colombia, the interested party can request its enforcement in the same terms domestic judicial decisions are enforced, through a collection action.

  31. 16.

    Upon the closing of a loan, what procedural requirements (execution formalities, notarisation, registration, recordation or filing) should be observed to ensure that a loan agreement or related judgment is enforceable in your jurisdiction?

  32. There are no procedural requirements to ensure the loan agreement’s enforceability (or related judgment enforceability) other than to be executed by a person duly empowered to do so.

  33. 17.

    Does a loan agreement in English need to be translated or locally registered to be enforceable in your jurisdiction?

  34. Articles 823 of the Commercial Code of Colombia and 251 of the General Procedure Code require that any document to be filed before a Colombian court, be officially translated into Spanish, and provides that in the event of disagreement as to its meaning, the court must appoint an expert translator to perform a new translation. 

  35. 18.

    Must a foreign bank be registered in your jurisdiction to enforce any rights under the applicable loan documentation?

  36. No.

  37. 19.

    Are foreign lenders treated any differently from local lenders in enforcing loan documentation in the courts of your jurisdiction?

  38. No.

  39. 20.

    Is consideration required for the enforceability of a contractual obligation or guarantee?

  40. No.

  41. 21.

    To enforce a loan in your jurisdiction, need the loan be evidenced by a promissory note or other form of título executivo?

  42. No. However a promissory note or other form of título ejecutivo allows access to an executive rather than an ordinary proceeding.

  43. 22.

    To enforce a guarantee (aval) in your jurisdiction, is it necessary that the guarantee be evidenced by a guarantee agreement or other form of título executivo?

  44. An aval does not need to be evidenced in a separate guarantee agreement but needs to be evidenced in a written form in the título ejecutivo. Evidence of an aval in the form of a título ejecutivo, however, allows access to an executive rather than an ordinary proceeding. An aval under Colombian law is a personal rather than an in rem guarantee. 

  45. 23.

    Are there any restrictions on loans to multiple borrowers or on a guarantee in respect of a loan to an affiliated entity?

  46. There are no restrictions on loans to multiple borrowers or on a guarantee to be granted by a Colombian subsidiary or in general Colombian branches, except if the branch belongs to the special foreign exchange regime. This is the regime applicable to branches dedicated to exploration and exploitation of oil, natural gas, carbon, ferronickel and uranium; or that provide services exclusively to this sector. This special regime does not allow this type of branches to access the commercial exchange market to obtain and remit funds in foreign currency, except for amounts received in Colombian pesos in connection with sales of hydrocarbons or for the return of foreign capital upon the liquidation of the branch. As a consequence, Colombian branches of foreign companies dedicated to activities related to oil, natural gas, carbon, ferronickel and uranium; or that provide services exclusively to this sector, cannot have foreign indebtedness or act as direct guarantor in respect of a loan to an affiliated entity or to a third party. 

    Additionally, in order to guarantee third parties' obligations (including affiliates' obligations) the corporate purpose of the Colombian guarantor should include the possibility of guaranteeing third parties' obligations, except if the guarantor is a simplified stock corporation (sociedad por acciones simplificada) that has not an express prohibition or limitation to guarantee third parties’ obligations in its corporate purpose.

  47. 24.

    Can a party grant a secured or unsecured guarantee in respect of a loan to an unaffiliated third party?

  48. A party is allowed to grant a secured or unsecured guarantee in respect of a loan to an unaffiliated third party if such power is included as part of its corporate purpose in the by-laws. See question 23. 

  49. 25.

    Is there a distinction between the granting of a security interest and the perfection of a security interest?

  50. Yes. Certain guarantees require formal procedures for its perfection including registration, granting of public deeds, written form (eg, guarantee over shares will only be perfected with the guarantee’s registration in the stock ledger or securities over immovable property will only be perfected upon registration of the public deed before the land registry office of the place where the immovable property is located).

  51. 26.

    What is the most common form of granting and perfecting a security interest in movable assets?

  52. Currently, the most common form of security over moveable assets are moveable guarantee agreements (ie, pledges).   

    Guarantees can be granted over any type of moveable assets or rights subject to an economic valuation by the parties, including: tangible or intangible assets, assets currently existing or assets that will exist in the future, inventories, contracts and receivables, including specific assets or all collateral of the guarantor and extending the guarantee to attributable or derived assets (eg, assets that come from the guaranteed asset, such as results from the sale, transformation or substitution of the guaranteed asset, payment of insurance over the collateral). Guarantees over moveable assets can be agreed either with or without physical possession of the asset.   

    Except for certain assets (eg, intellectual property rights), guarantees over movable assets are registered in the Movable Guarantees Registry managed by the Confederation of Chambers of Commerce a centralised filing system in which the movable guarantees are registered for purposes of being enforceable against third parties and granting of priority (for guarantees that do not imply physical possession by the creditor, who will have seniority).    

    Another common form of security over movable assets are guarantee trust agreements. The guarantor, as settlor, transfers its ownership over assets or rights to a trust. Provided no event of default has occurred under the guaranteed obligations, the trustee, which is an entity duly authorised to act as trustee by the Colombian Finance Superintendency, manages such assets or rights in the manner established in the trust agreement.   

    Assets and rights that may be transferred to a guarantee trust include: immovable property, moveable assets currently existing or assets that will exist in the future, receivables, inventory, contracts, economic rights, attributable or derived assets (ie, assets that come from the guaranteed asset, such as results from the sale, transformation or substitution of the guaranteed asset, payment of insurance over the collateral), etc.   

    Guarantee trust agreements shall be registered before the Movables Guarantees Registry. If immovable property or rights over immovable property (eg, usufruct) are transferred to the trust, the transfer shall be performed by means of a public deed registered with the Public Instruments Registration Office as well as with the Movable Guarantees Registry.

  53. 27.

    What is the most common form of granting and perfecting a security interest in real estate?

  54. The most common forms of granting a security interest in real estate are mortgages or guarantee trust agreements.

    Mortgages must be granted by means of a public deed. In order for a security interest over a real property to be perfected, the public deed shall be registered before the land registry office of the place where the immovable property is located.

    Security interest in real estate property by means of guarantee trust agreements must be granted by means of a public deed and its perfection occurs when the agreement is registered with the land registry office of the place where the immovable property is located as well as with the Movable Guarantees Registry. 

  55. 28.

    What is the most common form of granting and perfecting a security interest in receivables and accounts?

  56. Granting security over receivables and accounts is commonly performed by means of a movable guarantee agreement or the conditional assignment of rights. Security interests may also be granted over bank accounts by means of an account control agreement entered among the creditor, the guarantor (account holder) and the depositary bank. Also, guarantee trust agreements over receivables and rights are a common form of granting security interests.

    These types of agreements (except for the case of account control agreements that do not need registration for perfection) are perfected by their registration with the Movable Guarantees Registry. If immovable property is transferred to a guarantee trust, registration with the registry office of the place where the immovable property is located is also required.

  57. 29.

    Does your jurisdiction recognise the transfer of assets to a trust for the benefit of a lender as a means of granting a security interest in such assets?

  58. Yes. See questions 26 and 27.

  59. 30.

    Does your jurisdiction recognise the fiduciary transfer of assets (such as an alienação fiduciária) to a lender as a means of granting a security interest in such assets?

  60. It is possible to grant a movable guarantee over movable assets with possession of such assets by the lender. This guarantee creates a security interest over the assets by means of the delivery to the lender and does not require any registration for purposes of being enforceable against third parties or granting priority. Such possession does not grant property title to the assets.

  61. 31.

    Are there any types of asset that cannot be pledged as collateral under the laws of your jurisdiction?

  62. No. In principle all assets freely transferable may be subject to a pledge. Note, however, that not all assets are freely transferable, such as assets of public use.

  63. 32.

    Describe any restrictions on enforcement of security. For example, any statutory regime that may stay the enforcement of the security or provide that enforcement is limited to public sale through the courts.

  64. Under Colombian law, public sale through the courts (judicial foreclosure) is required for: (i) movable assets in case the parties did not agree to direct payment of the guaranteed obligation with the asset or special foreclosure and (ii) immovable property. The following are the mentioned scenarios:     

    • Judicial foreclosure: performed through a proceeding in which the guaranteed party may request, if the guarantor does not file any objections, the award of the pledged asset. The guarantor may request, among other things, that before the award, the movable asset be submitted to auction. If there is no bid, the movable asset will be awarded directly to the guaranteed party.  
    • Special foreclosure: conducted before a notary public or a Chamber of Commerce. The parties may agree on the procedure or follow the procedure established in the law. The assets will be sold in order to pay the debt with the proceeds of the sale.  
    • Direct payment: guarantor and guaranteed party may agree that in the case of an event of default, the guaranteed party is paid directly with the asset. The value of the asset will be subject to an appraisal carried out by an expert.
  65. 33.

    Describe any other relevant legal considerations in connection with loans to a borrower in your jurisdiction.

  66. Colombian foreign exchange regulations do not allow the set-off of obligations entered into by and between a Colombian resident and a foreigner.

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Questions

  1. 1.

    What are the most common forms of bank financing in your jurisdiction?


  2. 2.

    Are any governmental or central bank registrations or approvals required for a foreign lender (being a lender not incorporated in your jurisdiction or operating through a branch or office outside of your jurisdiction) to lend to a borrower in your jurisdiction?


  3. 3.

    Are there any foreign exchange provisions restricting, or governmental or central bank registrations or approvals required for, a borrower in your jurisdiction to contract debt obligations in a foreign currency or to remit funds abroad?


  4. 4.

    Are there any governmental or central bank registrations or approvals required for the prepayment of loans abroad?


  5. 5.

    Are any mandatory governmental or central bank deposits required to be made from loan proceeds?


  6. 6.

    Describe any governmental measures that may be taken to declare a moratorium on the loan obligations of private companies.


  7. 7.

    Describe any environmental liabilities and any other areas of lender liability that may arise as a result of the activities of a borrower or the realisation of a security interest.


  8. 8.

    Are interest payments or loan fees subject to a withholding tax?


  9. 9.

    What other taxes or mandatory fees, for example, transaction, registration or documentary, apply to loan transactions?


  10. 10.

    Are there different taxes applicable to loans repayable to lenders in your jurisdiction and loans repayable to lenders in a foreign jurisdiction?


  11. 11.

    Is your country party to any double taxation treaties that reduce taxes payable by borrowers in respect of loan payments abroad?


  12. 12.

    Do any financing structures receive favourable tax treatment, such as prepayments of exports?


  13. 13.

    Describe any limitations on interest rates or the ability of lenders to charge default interest under loan agreements.


  14. 14.

    Describe any restrictions that may apply to the choice of law, for example, whether a choice of New York or English law will be recognised and enforced in your jurisdiction.


  15. 15.

    Describe generally the requirements for the enforceability of a foreign judgment in your jurisdiction in respect of an outstanding loan.


  16. 16.

    Upon the closing of a loan, what procedural requirements (execution formalities, notarisation, registration, recordation or filing) should be observed to ensure that a loan agreement or related judgment is enforceable in your jurisdiction?


  17. 17.

    Does a loan agreement in English need to be translated or locally registered to be enforceable in your jurisdiction?


  18. 18.

    Must a foreign bank be registered in your jurisdiction to enforce any rights under the applicable loan documentation?


  19. 19.

    Are foreign lenders treated any differently from local lenders in enforcing loan documentation in the courts of your jurisdiction?


  20. 20.

    Is consideration required for the enforceability of a contractual obligation or guarantee?


  21. 21.

    To enforce a loan in your jurisdiction, need the loan be evidenced by a promissory note or other form of título executivo?


  22. 22.

    To enforce a guarantee (aval) in your jurisdiction, is it necessary that the guarantee be evidenced by a guarantee agreement or other form of título executivo?


  23. 23.

    Are there any restrictions on loans to multiple borrowers or on a guarantee in respect of a loan to an affiliated entity?


  24. 24.

    Can a party grant a secured or unsecured guarantee in respect of a loan to an unaffiliated third party?


  25. 25.

    Is there a distinction between the granting of a security interest and the perfection of a security interest?


  26. 26.

    What is the most common form of granting and perfecting a security interest in movable assets?


  27. 27.

    What is the most common form of granting and perfecting a security interest in real estate?


  28. 28.

    What is the most common form of granting and perfecting a security interest in receivables and accounts?


  29. 29.

    Does your jurisdiction recognise the transfer of assets to a trust for the benefit of a lender as a means of granting a security interest in such assets?


  30. 30.

    Does your jurisdiction recognise the fiduciary transfer of assets (such as an alienação fiduciária) to a lender as a means of granting a security interest in such assets?


  31. 31.

    Are there any types of asset that cannot be pledged as collateral under the laws of your jurisdiction?


  32. 32.

    Describe any restrictions on enforcement of security. For example, any statutory regime that may stay the enforcement of the security or provide that enforcement is limited to public sale through the courts.


  33. 33.

    Describe any other relevant legal considerations in connection with loans to a borrower in your jurisdiction.


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