International Commercial Arbitration in Colombia

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.) while parties may select arbitrators specialised in the subject matter of their dispute;
  • although the 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 as cassation, which can add another three to five years, while arbitration significantly reduces the time to obtain a final decision; and
  • court proceedings are generally public, and any material disclosed is held on the court record while arbitration allows parties to have confidential proceedings.

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

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, just like judges. Therefore, domestic arbitrators are equated to judges and their awards are equated 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 that of 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 due 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 United Nations Commission on International Trade Law Model Law on International Commercial Arbitration (the UNCITRAL Model Law), with minor variations, intended to tailor international arbitration with 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 therefore 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, impeachment of arbitrators, admission of the complaint, the evidentiary stage, the issuance of precautionary measures and the intervention of other parties or third parties are conducted in accordance with the rules included in the General Code of Procedure and in the Code of Administrative Procedure and Administrative Litigation (CPACA). The latter is applicable only when a public entity is involved and an express reference to the CPACA is made in the Arbitration Statute.

Parties may agree on whether to have ad hoc arbitration or designate a local arbitral institution to administer the arbitration; on the number of arbitrators, as long as it is an odd number; 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, 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, arbitrators are equated to judicial agents and arbitral awards equated 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. Recently, 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 such 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 such appointment.

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

In the latter method, the arbitration centre must designate the arbitrators by drawing from a list given by the parties or, in the absence of such 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. Nonetheless, 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 remaining arbitrators are designated by the arbitration centre, or by the 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 appointed 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 the arbitrator or arbitrators. Furthermore, secretaries cannot have a contractual relationship giving rise to subordination or dependence with the arbitrator or 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.

In 2020, the arbitration centre at the Bogotá Chamber of Commerce reported a total of 289 claims filed and 104 awards issued in domestic arbitration. Furthermore, the Bogotá Chamber of Commerce has two lists of arbitrators: list A includes 433 arbitrators, and list B includes 125. There are 160 tribunal secretaries registered on the arbitration centre’s list.[4]

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 the disputes worth more than 400 minimum wages. Arbitrators included in List B are required to have at least 10 years of experience, the same qualifications as a judge from a superior disctrict tribunal, and are assigned to the disputes worth less than 400 minimum wages.

Enforcement of arbitration agreements

According to the Arbitration Statute, the arbitration agreement 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. If the arbitration is included in a separate document, it is enforceable if such 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.[5] In other words, Colombian judges are not allowed to dismiss in limine a lawsuit on the grounds of the existence of an arbitration agreement.

Choice of law

Under Colombian law, jurisdictional rules are of public policy: 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 disputes, 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, and it is only possible to depart from Colombian jurisdiction rules by means of arbitration agreements. Furthermore, in domestic arbitration, asymmetric arbitration clauses where one party is allowed to choose whether to initiate arbitration or litigation before Colombian courts are not enforceable.

Domestic arbitrations are, generally, 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 from local courts and can only be challenged through requests to set aside the award or, exceptionally, through an application for review of the award or the judgment deciding on the annulment. Application for review of the award is an extraordinary recourse only available 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 party to the arbitration. In the latter case, such decision is made by the Council of State. Applications for review of the award are decided by the Civil Chamber of the Supreme Court or by the Council of State, whenever a public entity is 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 subjected to set-aside proceedings but only between 2 per cent and 3 per cent of awards are annulled.[6]

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 of the process appropriately, provided that such circumstance had not been resolved;
  • timely requested evidence had been denied or an unlawful failure to comply with an order to produce evidence had occurred, provided that this circumstance had been timely alleged 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 such circumstance was timely alleged before the arbitral tribunal; or
  • the award exceeds the scope of the arbitrators’ jurisdiction, is more than what the claimant requested 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 on very exceptional cases as they have specific admissibility requirements (e.g., the subject matter must be of constitutional relevance. The tutela must be subsidiary to all regular remedies, which means that it is only available whenever all regular remedies have been filed or whenever 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 impact the fundamental rights of the petitioner; and the violation to fundamental rights should have been argued during the arbitration, in addition to other specific admissibility requirements) and proceed on very limited grounds. Therefore, such actions have a very low success rate.

International arbitration: local practices and the differences with 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 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.[7] Parties may also agree on a local or international institution to administer the arbitration; the applicable law; the language of the proceedings; the number of arbitrators (as long as it is an odd number); and the method of appointing them. This is why there are few mandatory provisions on 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 relates to more than one country.

Additionally, the Arbitration Statute includes an economic criterion derived from French law and absent in the UNCITRAL Model law: 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 domiciles 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.

Recently, the Colombian Congress considered an important arbitration reform bill submitted in 2021.[8] The bill was encompassed in a structural reform to the judicial system, which includes the objective to promote the already existing alternative dispute resolution mechanisms. The bill included 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 will presumably be resubmitted during the next period.

The first modification regarding international arbitration is to the wording of Article 62, which used to give place 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 second modification aimed to clarify when parties are deemed to have 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 in Colombia.[9] 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 on whether an arbitration proceeding involving domestic branches of foreign companies is international or not. The arbitration reform bill aimed 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, a dispute between a Colombian company and a Colombian subsidiary (not branch) of a foreign company is domestic, under this criterion. Another proposed modification aimed 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 to 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.[10] Failing agreement by the parties, if the arbitration agreement provides for a solo arbitrator, domestic courts are allowed to intervene to make such appointment; if the arbitration agreement provides for three arbitrators, each party must appoint a co-arbitrator and the two arbitrators thus appointed proceed to appoint the third one.[11]

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 from domestic courts is limited to the cases expressly allowed by the Arbitration Statute: 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, set-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. The decision of the tribunal deciding on its own jurisdiction can only be challenged by a request to set aside the final award containing such decision.[12]

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. 91 per cent of the time, the internationality criterion used is the domicile of the parties at the time of the conclusion of the arbitration agreement.[13]

Challenges to awards in international arbitration

Arbitration awards issued by an arbitral tribunal seated in Colombia may only be challenged through set-aside proceedings. The grounds to set aside an arbitral award are limited to those established in Article 108 of the Arbitration Statute, which mirrors the grounds established in Article 34 of the UNCITRAL Model Law.[14]

Case law has consistently established that public order as a ground to challenge an international arbitral award must be interpreted restrictively as the internatonal 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.[15] To date, only one international arbitration award has been annulled by domestic courts.[16] In a heavily criticised decision, the Council of State decided to set aside the Consotium CUC v. Gecelca 3 award, as it considered the tribunal 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 was a foreign award.

Requests for setting aside arbitral awards must be filed and sustained within 30 days of the notification of the award or, where appropriate, the notification of the additional award, the order that decides on the correction or clarification of the award or the 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 if 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, application for review of awards is not available regarding international arbitration awards or judicial decisions regarding the setting aside of international arbitration awards.

Although awards issued in international arbitrations with a seat in Colombia may only be challenged through set-aside proceedings, there has been a lot of concern surrounding the possibility of filing constitutional actions for the protection of fundamental rights (the infamous tutelas) against those awards. Nonetheless, that concern has now 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, that is, even more exceptional than against domestic arbitration awards.[17]

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.

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 their right to set aside the award.[18] 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, the creditor can only enforce it, against the 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 analysed if 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 submit a translation.

The competent court may only refuse recognition of a foreign arbitral award under the exhaustive grounds established in the Arbitration Statute, that mirror the grounds established in Article V of the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention), and under 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.[19]

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.


Notes

[1] Daniel Posse Velásquez and Carolina Posada Isaacs are partners, and Laura Vengoechea Ballesteros is a senior associate at Posse Herrera Ruiz.

[2] Arbitration Statute, Article 58.

[3] Council of State, decision dated 11 October 2021, reference: 13001-23-31-000-2005-01670-01 (39.798), Justice: Fredy Ibarra Martínez.

[4] Mauricio González Cuervo, et al. (editors), ‘El CAC en cifras: índice estadístico’, Arbitration Centre at the Bogotá Chamber of Commerce, 2022. Available at: https://bibliotecadigital.ccb.org.co/bitstream/handle/11520/26445/Cartilla%20I.%20estadistico%20CAC%20PCA_120421%28v2022%29.pdf?sequence=4&isAllowed=y.

[5] General Code of Procedure, Article 100.2.

[6] Arbitration Centre at the Bogota Chamber of Commerce, ‘Estadísticas del Centro de Arbitraje y Conciliación de la CCB: Laudos y Anulaciones’, Revista Arbitrio, pp. 101–102. Available at: https://issuu.com/ccb_cac/docs/arbitrio_ii/102.

[7] Arbitration Statute, Article 92.

[9] Colombian Commercial Code, Article 471.

[10] Arbitration Statute, Article 73.

[11] Arbitration Statute, Article 73.

[12] See Fernando Mantilla-Serrano, Colombia Enacts a New International Arbitration Law, Journal of International Arbitration, Kluwer Law International 2013, Volume 30 Issue 4, p. 437.

[13] Mauricio González Cuervo, et al. (editors), ‘El CAC en cifras: índice estadístico’, Arbitration Centre at the Bogotá Chamber of Commerce, 2022. Available at: https://bibliotecadigital.ccb.org.co/bitstream/handle/11520/26445/Cartilla%20I.%20estadistico%20CAC%20PCA_120421%28v2022%29.pdf?sequence=4&isAllowed=y.

[14] Arbitration Statute, Article 108, Grounds for setting aside: (‘The judicial authority may set aside an award by request of one of the parties or by its own initiative. 1. At the request of a party, if the party making the application furnishes proof that: (a) A party to the arbitration agreement was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under Colombian law; or (b) The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (c) The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or (d) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this section from which the parties cannot derogate, or, failing such agreement, was not in accordance with this section. 2. By its own initiative, when the court finds that: (a) The subject matter of the dispute is not capable of settlement by arbitration under Colombian law; or (b) The award is in conflict with the international public policy of Colombia.’)

[15] See Supreme Court of Justice, judgment dated 15 January 2019, reference number SC001-2019, Justice Aroldo Wilson Quiroz; see also the following judgments regarding recognition of foreign arbitral awards: Supreme Court of Justice, judgment dated 23 March 2018, reference number SC877-2018, Justice Ariel Salazar Ramírez; Supreme Court of Justice, judgment dated 24 June 2016, reference number SC8453-2016, Justice Ariel Salazar Ramírez.

[16] Council of State, judgment dated 27 February 2020, reference number 11001-03-26-000-2018-00012-00 (60714), Justice Maria Adriana Marin.

[17] Constitutional Court of Colombia, judgment T-354 of 2019, Justice Antonio José Lizarazo Ocampo.

[18] Arbitration Statute, Article 111.

[19] See, for example, the following cases where foreign arbitral awards have been recognised: Supreme Court of Justice, judgment dated 23 March 2018, reference number SC877-2018, Justice Ariel Salazar Ramírez; Supreme Court of Justice, judgment dated 24 June 2016, reference number SC8453-2016, Justice Ariel Salazar Ramírez.

Unlock unlimited access to all Global Arbitration Review content