Published on Monday 14th October 2019
Outline the court system in your jurisdiction.
In general, the judiciary in Colombia is unitary and it is organised under the Judicial Branch of the Public Power. As set out in article 11 of Law 270/96, modified by article 4 of the Law 1285/09, the Judicial Branch is composed of bodies in four different jurisdictions:
Finally, the following administrative entities have limited jurisdictional powers as per article 24 of Law 1564/2012, General Code of Procedure (GCP): (i) the Superintendency of Industry and Commerce, which has authority to rule upon matters concerning consumer rights and any alleged violation of the competition law rules; (ii) the Superintendency of Finance, which has authority to rule over disputes encompassing the financial activities financial of the entities supervised by said superintendency, as well as concerning securities and insurance and, in general, all activities related to the use and investment of resources originated by the public; and (iii) the Superintendency of Corporations, which has jurisdiction to rule over corporate disputes, such as compliance with shareholder agreements and the nullity of decisions taken by the shareholders.
What remedies are available to a local entity or resident 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; however, two scenarios must be distinguished:
As regards damages, the Colombian legal system allows the compensation of the following:
It is important to note that Colombia does not recognise punitive or exemplary damages and, in general terms, as it is set out by the Supreme Court of Justice (Cas. Civ., File 5348) and the Council of State (3rd section, subsection C, File No. 20505), damages must be real, actual and certain.
The foreign character of an entity in a dispute in Colombia does not give rise to any restriction on the available remedies. In this sense, Colombian law provides foreign entities the same rights afforded to local entities. There is no statutory provision requiring that foreign entities post a bond or other security before defending a suit.
There is a special rule regarding disputes concerning the restitution of a leased asset, but by no means shall be interpreted as the obligation to post a bond. In that specific case, as per article 384 GCP, if the dispute relates to non-payment of rent, the defendant shall not be heard if it does not deposit in the court account the amount of the rent allegedly owed plus any other related charges.
Regarding provisional measures of attachment, local or foreign entities are treated similarly, and are subject to the following rules:
If the plaintiff request the judge any of such measures, it shall post a bond for 20 per cent of the amount in dispute to secure the payment of costs and damages it may cause with such measures, unless those measures are requested after having obtained a favourable rule in the first instance. The defendant, on the other hand, to obtain the cancellation of the provisional measures, it may post a bond to secure payment of the total amount in dispute.
The same rules apply in collection proceedings, whereby the claimant is authorised to request, at the outset, the provisional attachment and seizure of the defendant’s assets. In this case, the plaintiff may be ordered to post a bond up to the 10 per cent of the amount in dispute to secure the payment of costs and damages it may cause with such measures, unless the provisional measure is requested after the claimant has obtained favourable decision in a declaratory proceeding. The defendant wishing to apply for cancellation of any such measure may be ordered to post a bond for the total amount in dispute plus an additional 50 per cent.
It is important to note that posting a bond to obtain or cancel provisional measures is not a condition precedent to litigate a case, either as a claimant or defendant.
What is the process by which a foreign entity may challenge the jurisdiction or venue of the; court where litigation is filed? What factors are considered when a court evaluates whether; to exercise jurisdiction over a foreign entity?
There is no specific procedure to contest the jurisdiction or venue of the court. However, when an ordinary proceeding has been commenced against a foreign entity, challenge of the jurisdiction or the competence of the court shall be argued as a dilatory defence, as per article 100, §1 or §2, CGP.
In such a case, Colombian judiciary take any of the following approaches:
What is the most common type of litigation encountered in your jurisdiction by foreign entities?
Foreign entities are mostly involved in:
How frequently do parties pursue criminal actions 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 common for criminal actions in the context of commercial litigation to be pursued; however, this scenario is available where a criminal offence has been committed (eg, where forged documents have been filed as evidence in a commercial matter or where a witness deposition is false).
The fact that evidence has been used in a criminal trial is not a threshold for it to be submitted in any subsequent civil litigation proceedings. However, it depends on the stage of the civil proceeding, as in Colombia the opportunities to request evidence are expressly provided for in procedural law, unless the judge, by his or her own motion (ex officio) requests the criminal trial evidence to be submitted for his or her consideration.
There are two procedural regimes applicable to criminal cases litigated in Colombia and both allow bringing civil litigation concurrently with criminal litigation:
Is there a right to a trial by jury in a commercial dispute?
Trial by jury does not currently exist in Colombia in either commercial or civil disputes.
Do courts require or strongly encourage mediation or other alternative dispute resolution methods before or during a litigation proceeding?
In civil, family and administrative cases, where the subject matter of the dispute is capable of being directly settled by the parties, extrajudicial conciliation is a condition precedent to commence litigation (Law 640/01, article 35), unless the claimant states under oath that the domicile, residence or workplace of the defendant is unknown (Law 640/01, article 35), or where the claimant requests provisional measures with the statement of claim.
During litigation proceedings articles 372.6 and 392 GCP provide that, in case of a verbal proceeding or a summary proceeding, the judge must summon the parties to a conciliation hearing differences at the “initial hearing”.
Finally, article 28.13 of law1123/2007 provides that counsels have the duty to prevent innocuous litigation and to facilitate, inter alia, mediation as an alternative dispute resolution method.
Will choice of law and choice of forum provisions in a contract be recognised?
In principle, if a contract has a foreign element, there is nothing to prevent 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:
Colombian law does not allow parties to waive or prorogue the jurisdiction of Colombian courts (articles 16 and 28.3 GCP). Foreign decisions concerning matters subject to the exclusive jurisdiction of Colombian courts of law are not enforceable in Colombia as per article 606 of the GCP, for example, disputes related to assets located in Colombia at the moment the dispute arises.
Does your jurisdiction have a specific arbitration law? Are arbitration awards enforced by the courts? May courts enjoin/prohibit arbitration proceedings in matters that are also pending in a court proceeding?
The cornerstone of arbitration in Colombia is article 116 of the Constitution. National and international arbitration is thoroughly regulated by Law 1563/2012. As regards international arbitration, the Colombian legislator based all of its regulation on the UNCITRAL Model Law, and its 2006 amendments.
Courts generally grant enforcement of arbitral awards issued in Colombia. If the award is considered foreign, the petitioner must comply with the provisions set out in article 111 of Law 1563/2012 and a prior recognition by the judiciary is required by means of exequatur as provided for in article 111.3 of Law 1563/2012. In such a case, the procedure to be followed is set out in article 607 GCP. Once recognised, local courts are able to enforce the decisions contained therein.
If the award is issued in an international arbitration seated in Colombia, there is no need to apply for its recognition as per article 111.2(bis) of Law 1563/2012, and courts would automatically enforce it.
Courts cannot prohibit arbitration proceedings in matters also pending in court proceedings as a sort of lis pendens. On the contrary, where a 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 a preliminary defence and seek an anticipated final decision towards the court’s jurisdiction (article II.3 of the New York Convention, article 70 of Law 1563/2012 and article 100 GCP).
Do the courts recognise attorney-client privilege? If so, is the privilege applicable to in-house lawyers?
The Colombian Constitution expressly recognises and protects professional secrecy (Constitution, article 74). In addition, article 209 GCP expressly includes professional secrecy as an exception to the duty to appear as a witness of fact. The professional secrecy has been construed by the Constitutional Court as “a reserve and confidential information" recognised as a consequence of certain professions or activities; therefore, is either as a right and duty.
The legal basis of the professional secrecy lies in the defense of the personal reputation, honour and protection of the public image and privacy of the recipient.
The extent of the professional secrecy varies depending of the professional relationship and the degree of proximity. With regard to the documents or information within the attorney–client relation, Colombian Constitutional Court has held that communication is inviolable; and any illegal interception must be severely punished.
Notwithstanding the inviolability of the professional secrecy, the Constitutional Court has recognised some extreme cases in which the disclosure is allowed. The exception arises in cases in which the disclosure, beyond reasonable doubt, has the potential to prevent a crime.
It is important to highlight that under Colombian law, all evidence obtained in violation of due process is null and void by right (article 29 of the Political Constitution).
The same principles shall be applicable to in-house lawyers but, the absence of a clear-cut decision by our judiciary, investigations conducted by the Superintendency of Commerce have shown that the documents produced by in-house lawyers are treated as documents owned by the company, therefore they are subject to examination and analysis.
Are legal proceedings public? In other words, can the general public observe hearings and review the filings of the parties?
Although hearings are generally public, revision of documents presented by the parties, including their petitions, are reserved to the parties. Article 26 of Decree 196/71 provides that files and decisions in judicial or administrative proceedings can only be examined by:
May a defendant join other potentially liable parties to the existing lawsuit?
Yes. The rules applicable to joinder are those contained in articles 60 and following of the GCP which, in addition, are applicable to domestic arbitration. In this sense, the following scenarios must be distinguished:
The respondent may file a gjoinder, whereby:
How may a party enforce a foreign judgment?
Article 606 of the GCP lists the conditions that must be fulfilled by a foreign judgment to obtain recognition and enforcement in Colombia. Failure to fulfil any of the conditions listed therein shall be construed as a reason to dismiss without prejudice the request for recognition of the foreign decision. As it is set out in said provisions, the conditions a foreign judgment shall met are the following:
How is service of process effected? How long does it typically take?
Process in Colombia is served depending on the judicial order that has to be served pursuant to article 289 of the GCP. As regards the service of process, three different types of notifications are applicable as per articles 290 and following of the GCP:
How much time does a party have to answer a complaint? Can a party extend this time?
Based on the GCP, civil and commercial disputes are to be resolved through one of the following procedures:
In any case, if the defendant files a petition before the court seeking the reversal of the admission of the claim, the term to answer the complaint will start from the day following the service of the decision to the parties in which the judge confirms the admission of the claim.
What types of pretrial proceedings are available in court? What kinds of dispositive motions can be filed before trial? Under what circumstances may a lawsuit be dismissed prior to trial?
Pretrial collection of evidence is available as per article 183 GCP (see answer 19) and a pretrial provisional measures as it is set out in article 589 GCP.
Regarding the dismissal of a claim prior to trial, the only provision that could be assimilated to a dispositive motion to dismiss a claim is found in article 278 GCP, which provides that in any stage of the proceeding, Judges are authorised and empowered to issue an anticipated final decision if, inter alia, the principle of res judicata is evident from the facts of the case, a settlement agreement has been executed between the parties, when the period of time set out in the statute of limitations has passed or when the claimant lack of standing to file a claim against the alleged defendant.
In addition to these cases, an anticipated final decision, with res judicata effect, must be issued by the court if both parties agree to it or if not, evidence shall be collected by the court.
Finally, as per article 100 GCP, the judge may terminate the proceedings if the prosperity of a dilatory defence is declared and the claimant does not comply with any order issued by the court as regards such defence within the five days following the court decision on the dilatory defences. Said decision shall be taken before moving towards the collection of evidence requested by the party and, in any case, at the outset of the first hearing (article 101.2 GCP).
How long does it take to obtain a first-instance judgment in a typical commercial litigation case?
As of today, judges are bound to produce their decision on commercial disputes within one year of the notification of admission of the claim to all defendants (including third parties), unless the proceeding is suspended or interrupted. If the first-instance court does not rule within the term specified, the proceeding must be sent to the following judge, who in turn would have six months to produce a final ruling (GCP, article 121). Exceptionally, the first-instance judge has the power to extend the term up to six months to decide upon a case.
Notwithstanding said provision, owing to court congestion, it is likely that a first-instance ruling might be rendered by the court three years from the date of admission. In Colombia there is no provision ordering judges to produce the admission decision within a certain time frame.
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, and the request for the pertinent means of evidence (GCP, article 82). However, if facts are omitted, or claims are not included in the initial pleading, the plaintiff can amend its initial claim once, as per article 93, GCP.
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 GCP allows a person intending to file a claim or fearing to be sued, to:
Does litigation provide a process to subpoena or obtain documents or testimony from third parties?
Where a party intends to use documents in litigation that are in a third party’s hands, the former may request the court to order them to be disclosed (GCP, article 265). On the other hand, both the CCP and the GCP expressly provide that any person has the duty to render the witness statement requested by a competent authority, unless otherwise provided by law (GCP, article 208).
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 (GCP, article 223). Therefore, both the judge and the opposing counsel may examine witnesses.
How may evidence be challenged? Are there specific rules of evidence?
There are specific rules of evidence in Colombia, applicable to documentary evidence, witness statements, expert reports and site inspections, among others (CGP, third section, Unique Title on “Evidence”).
As regards the challenge of evidence, the following rules apply:
Do courts typically allow hearings at or before a trial? At what stage may parties present expert witness testimony?
Hearings are allowed before trial where anticipatory evidence has been requested (see question 14). On the other hand, witness statements may be requested or submitted by the parties with the claim or the answer to the complaint (CCP, articles 75, 77, 92 and 183; GCP, articles 82, 84, 93 and 96).
What must be demonstrated to collect a debt based on a written instrument?
A document grants the right of collection under Colombian law when it has been issued by the debtor and expressly indicates a clear, express and enforceable obligation (GCP, article 422). The document shall be presented in the original. Judges would neither admit, nor issue, an order of payment where the claimant has not presented the original document granting the right of collection.
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 three special remedies in addition to those provided by the general rules on contractual and non-contractual liability (see question 2):
Under Colombian law, in general, 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. A similar action may be raised by the company itself (Law 222/95, article 25).
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:
In the cases listed above, the creditor is entitled to obtain payment from the product of the ship’s sale (Commercial Code, article 1555).
In addition, Decision 487 of the Andean Community provides naval privileges on the vessel for the following credits:
Decision 487 regulates the benefits of owners of the above-mentioned credits.
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?
The party holding a security interest in real and personal property has the right to enforce the security through a special collection proceeding if, as it is usual, the security is accompanied by a document that qualifies for collection action (see question 24). 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 (Civil Code, article 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 (Civil Code, article 2498). Furthermore, where the creditor lawfully has physical possession of the pledged good, he or she is entitled not to give it back until the credit has been paid (Civil Code, article 2421).
On the other hand, if a mortgage has been constituted over non-moveable goods, the credit will become a third-class credit (Civil Code, article 2499). Since second-class credits are always related to moveable goods, in practice this security means that the credit prevails over all those that 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 (Civil Code, article 2500).
Proceeding for recovering property serving as security for debt obligations
As it is provided for in articles 467 and 468 GCP, when a mortgage or pledge has been constituted in favour of a creditor, such creditor may request judicial allocation of the collateral by means of a special procedure, to secure the total or partial payment of the debt obligation.
It is important to highlight the following:
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 highlighting that the core element of labour contracts is sub-ordination (ie, the fact that the employer could determine when, how and where the service was to be provided (Labour Code, articles 23 and 24 modified by articles 1 and 2, Law 50/90).
Disputes concerning the determination of whether a labour contract has been unjustifiably terminated are also usual. In those cases, if the claimant succeeds, the employee will have to pay a compensation amounting to:
The monthly legal minimum wage for 2016 was fixed at 689,454 Colombian pesos (Decrees 2552 and 2553 of 30 December 2015) (approximately US$235,61 – exchange rate of 10 October 2016).
Does your jurisdiction allow class actions or some form of collective litigation proceeding?
Colombian law basically allows two kinds of collective litigation proceedings:
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 undertaking commercial activities do not enjoy special privileges. As a matter of fact, in this cases, contracts entered into by such entities would be governed by private law, although the principles of public procurement would be applicable, eg, efficiency, transparency, planning, etc.
There is a special benefit in favour 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 that such suspension may be likely to cause; however, such security is not required where that the appellant is a public entity. This is also the case in collection proceedings when a public entity requests provisional measures against assets of a private party, therefore, no security must be placed as a condition precedent to order such measures (GCP, article 599; Code of Procedure for Contentious Administrative Matters (CPCA), article 232).
Additionally, if a decision orders a public entity to pay an amount of money, collection proceedings shall be commenced against the entity 10 months after such decisions becomes enforceable (article 307, GCP).
Do foreign states or entities controlled or owned by foreign states enjoy any privilege when they are engaged in commercial activity and involved in a commercial or administrative litigation in your jurisdiction (state immunity)?
In the past, Colombian judiciary has approached to the issue in a restrictive manner, granting immunity from jurisdiction either when a state was engaged in commercial activities. As of today, the Supreme Court of Justice, in a case involving the Arab Republic of Egypt (Civ. Cas, 20 January 2016), differentiated the acts of a state as iure imperii and iure gestionis, being the later, as the court recognised, exclude the political faculties and rights of the states.
Although in the past the position of the Supreme Court was that states did not have standing to appear before the Colombian courts neither to request the protection of the fundamental rights or to request their intervention in the decision of disputes on Colombian soil, as they had jurisdictional immunity, in this particular occasion the Supreme Court took the opportunity to revise their decisions in order to introduce a relative theory of jurisdictional immunity of states, regardless that Colombia has not yet ratified the Convention on Jurisdictional Immunities of States and their Property of 2004.
The Court went further to impliedly consider that decision involving states in labour disputes might be well extended to commercial issues, as our Constitutional Court have considered that the relative theory of jurisdictional immunity does not violate the Colombian Constitution.
Is injunctive or other relief available on an emergency basis?
In Colombia, injunctions may be granted on an emergency basis in certain cases expressly provided for in article 589 GCP. According to said provision, when there is a violation of the intellectual property or of the competition law rules, it is possible to request the suspension of the wrongful act when requested as a consequence of a pretrial collection of evidence; 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, article 31).
Additionally, the Council of State and the administrative tribunals may suspend the effects of administrative acts, as long as certain conditions are fulfilled (Law 1437/11, article 230).
As regards actions related to fundamental rights, the court, if it considers necessary and urgent, may (i) suspend the effects of a concrete act that is or might threat a fundamental right; (ii) to order conservatory measures to avoid the production of additional damages and (iii) to order any measure to protect any fundamental right that might be in discussion while the decision is issued (article 7, Decree 2591/91).
Is injunctive 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:
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:
In addition to those general sums, if a party requests interim measures, it would be liable for the damages caused by the adoption thereof, thus in some cases courts require the constitution of a guarantee before adopting such measures (see question 2).
Is a bond required for a non-resident? What is the amount of the bond?
In the context of civil lawsuits, bonds are required only in cases specifically established by the Code of Civil Procedure; no distinction is made between residents and non-residents (GCP, article 603). No bond shall be posted by a foreign entity to litigate a case before Colombian courts, unless it requests provisional measures; and such bond will secure payment for costs in case the final decision is issued against its specific claims.
What types of damages are available? How are damages quantified? Are punitive damages available?
Colombian courts may award two kinds of damages:
Is the losing party liable for the prevailing party?
The losing party is liable for the prevailing party’s attorney’s fees and costs. Pursuant to Resolution PSAA16-10554/16, issued by the Superior Council for the Judiciary, the losing party must pay the attorney’s fees and expenses. However, statutory limits to the payable sums have been established. For example, in commercial disputes, the limit for the first instance fees is 7.5 per cent of the sum recognised or denied by the decision. There are detailed provisions on this matter for each judicial proceeding.
Will courts enforce a liquidated damages provision in a contract?
Colombian courts will enforce a liquidated damages clause if it does not exceed the limits established by statutory law; namely, in civil contracts, liquidated damages cannot be higher than two times the amount of the obligation (Civil Code, article 1601); and in commercial contracts, they cannot exceed the amount of the obligation (Commercial Code, article 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 (Commercial Code, article 867).
What is the appeal process against trial court decisions?
Two circumstances must be differentiated:
In any case, if the appeal 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 provided that: (i) such evidence was requested before the first instance court, but was not collected due to causes not attributed to the party seeking their collection; (ii) the parties agreed before the second instance court on the collection of evidence not requested in the first instance; (iii) evidence is related to issues occurred after the opportunity to request evidence in the first instance has elapsed; (iv) there are documents not filed as evidenced due to force majeure or by an act attributable to the other party (article 327 GCP).
After the appeal has been admitted by the Superior Court, date and hour for holding a hearing will be fixed. In such hearing, the parties have one opportunity to address the court only with regards to the arguments briefly exposed to the first-instance court and, in the same hearing, the competent court will issue its decision (GCP, final part of article 327).
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.
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, and therefore there are not federal governments and local authorities do not enjoy broad powers. However, there are three main ways whereby courts may reverse administrative decisions:
How are trade secrets protected in judicial proceedings?
As per article 267 of the GCP, the party who has the burden to show certain information considered as trade secret has to oppose to the exhibition of such information within three days from the date the judge ordered its exhibition.
The judge will appreciate the arguments set out in the opposition to decide whether the information requested by the other party are part of the trade secrets and know-how of the company and, if it finds it admissible, it will decide not to order the exhibition of the information (trade secrets); however, it is exclusively for the judge to decide upon the opposition.
Are settlement agreements confidential? Must the parties’ settlement agreement be certified by the court?
Settlement agreements entered before any judicial proceeding, unless otherwise provided by the parties, are not confidential. But if the parties agree on a confidentiality agreement upon any settlement, a judge can order the exhibition of the document if it is necessary to establish the facts or evidence upon certain situation in civil or criminal matters, and the parties should present the document upon request of competent authority.
If any settlement agreement is executed within a judicial proceeding, but with no intervention of the judge, the parties have the option not to disclose the agreement and request the judge to dismiss the claim by voluntary withdrawal of the claim by the plaintiff, or to show the document to terminate the proceeding by settlement.
The only time where it is necessary to obtain a certification or court approval is where public entities conciliate their disputes with private parties. In this case, the agreement must have the authorisation of the administrative jurisdiction (administrative judges or tribunals depending on the nature and amount of the agreement), in order to determine whether the agreement violates the public order, is injurious to public funds or presents any risk to the public entity. If no authorisation is granted, no settlement agreement can enter into force.
Finally, it is important to note that there is no law that expressly forbids using as evidence the statement made in a genuine attempt to settle. Nevertheless, by the interpretation of the Constitution (article 29) and some laws, such as the Law 640/2001 (articles 1 and 2) and article 164 of the General Procedure Code, even the daily legal practice, it is possible to concluded that all statements of the parties and exchange of oral information, production of documents, etc, within settlement hearing (judicial or out-of- court) or a genuine attempt to settle are considered inadmissible evidence before the judge.
Who has the burden of proof at trial? What is the burden?
Article 167 of the GCP has introduced an important modification to the traditional procedural law, taking into account the particularities of the case, the Court can, by its own motion or by the request of a party, order to a specific party to present any and all evidence it has in its power because such party has a better position or it has an intimate relation with the evidence.
What are the most significant recent developments regarding judicial reform? Is any proposed legislation likely to affect the civil litigation market?
Describe any recent noteworthy litigation and arbitral cases.