Applicable requirements as to the form of arbitral awards
Applicable legislation as to the form of awards
1 Must an award take any particular form (e.g., in writing, signed, dated, place, the need for reasons, delivery)?
The National and International Arbitration Statute in Colombia – Law 1563 of 2012 (the Arbitration Statute) – contains, in Article 114, a mandatory list of requirements for the awards rendered by international arbitration tribunals seated in Colombia:
- The award must be written and signed by the arbitrators. When most, rather than all, of the arbitrators sign the award, it is still valid.
- The tribunal must motivate the award. This rule applies unless (1) both parties do not have their domicile in Colombia or (2) the parties agree on a transaction.
- The award must indicate its date and the seat of the arbitration.
- The tribunal must serve signed copies of the award to the parties.
Applicable procedural law for recourse against an award
Applicable legislation governing recourse against an award
2 Are there provisions governing modification, clarification or correction of an award?
Pursuant to Article 106 of the Arbitration Statute, any party can request that the tribunal correct any errors in the calculation, transcription or drafting of the award, or append any clarifications. The request must be filed within one month of service of the award. The applicant party must notify its counterparty about this request. If the tribunal accepts the request, it must modify or clarify the award within the following month: this decision constitutes part of the award.
The tribunal can also decide itself to modify or clarify an award regarding any mistake in the calculation, transcription, drafting or grammar.
Unless otherwise agreed by the parties, any party can request that the tribunal render an additional award regarding any claims presented during the proceedings that were omitted from the principal award. If the tribunal accepts the request, the additional award must be rendered within the following 60 days, attending to the requirements discussed in question 1.
Appeals from an award
3 May an award be appealed to or set aside by the courts? If so, on what grounds and what procedures? What are the differences between appeals and applications for set-aside?
An arbitral award cannot be appealed but can be set aside. Article 108 of the Arbitration Statute establishes the reasons to set aside an award, either at any party’s request or ex officio.
Those reasons concern (1) the validity of the arbitral agreement between the parties; (2) the legal exercise of due process and other substantive and procedural rights; (3) the substantive scope of the arbitration clause; and (4) the legal and agreed rules relating to the constitution of the tribunal.
Article 108 provides for the annulment of an award at any party’s request, when it is proved that:
- at the execution of the arbitration agreement, the applicant party was not able to agree on it. Also, if the agreement is deemed invalid under the applicable law, unless the parties agreed to it, Colombian law must be applied;
- the applicant party was not legally served about an arbitrator’s appointment or the initiation of the proceedings; or if, for any reason, the applicant party could not exercise its rights;
- the award exceeded the scope of the arbitration clause. If the award contains matters included in the scope, these cannot be annulled; or
- the arbitral tribunal was constituted against the arbitration agreement or breaches a legal stipulation of the Arbitration Statute.
Likewise, an annulment should be ordered ex officio if:
- under Colombian law, the dispute is not subject to arbitration; or
- the award is contrary to the public international policy of Colombia.
Applicable procedural law for recognition and enforcement of arbitral awards
Applicable legislation for recognition and enforcement
4 What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?
Article 605 of the General Procedural Code (GPC) states that the recognition of foreign judgments is subject to exequatur, in accordance with the rules in the Colombian system. Therefore, the recognition and enforcement of arbitral awards is governed by the Arbitration Statute (Article 114) and the international treaties ratified by Colombia.
In particular, the Arbitration Statute sets forth the general regime for national (First Section) and international arbitration (Third Section) as a dual arbitration system and establishes the rules for recognising and enforcing awards (Articles 111 to 116). Article 111 sets different rules, depending on the seat of each arbitration proceeding. Note that interim measures taken by arbitral tribunals do not need any recognition proceeding, pursuant to Article 88 of the Arbitration Statute.
Any decision rendered by an arbitral tribunal seated in Colombia shall be considered a national award. Therefore, decisions do not require any recognition procedure and may be enforced immediately before the competent judge (Arbitration Statute, Article 111.3). However, if the parties decide to exclude the possibility of an annulment procedure pursuant to Article 107 of the Statute, the award must be recognised before being enforced.
However, decisions rendered by tribunals seated abroad are subject to recognition and enforcement procedures set forth in Articles 111 to 116 of the Arbitration Statute and the applicable international treaties (Article 111.4).
Colombia is a party to five international treaties relating to recognition and enforcement of international awards:
- The 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention);
- The 1975 Inter-American Convention on International Commercial Arbitration (the Panama Convention);
- The 1889 Montevideo Treaty on International Procedural Law;
- The 1979 Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards (the Montevideo Convention); and
- The 1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the ICSID Convention).
The New York Convention
5 Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under Article I(3) of the Convention?
The New York Convention entered into force in Colombia on 24 December 1979, without the inclusion of any reservations. However, the effects of the international treaties to which Colombia is a party are dependent on the incorporation of the Convention in the national legal system – the Colombian Congress issued Law 37 of 1979 for that purpose. This law was declared unconstitutional by the Supreme Court of Justice on 1988, as a consequence of which the Congress issued Law 39 of 1990 in an attempt to include and maintain the Convention in the national legal system. This law is currently in force.
The case law of the Supreme Court of Justice has been consistent in recognising the effects of the Convention since 1979, even though Law 37 of 1979 was declared unconstitutional.
6 Which court has jurisdiction over an application for recognition and enforcement of arbitral awards?
The Supreme Court of Justice and the Council of State are the competent courts for the recognition and enforcement of decisions rendered by arbitral tribunals seated abroad.
Article 30.5 of the GPC states that the Civil Cassation Chamber of the Supreme Court of Justice is the competent court for the recognition and enforcement of arbitral awards, following the applicable legislation for that purpose. Likewise, Article 68 of the Arbitration Statute provides that the Supreme Court of Justice is competent for that purpose.
Article 68 also states that if a state entity is a party to an arbitration decision, the Third Section of the Council of State is the competent court for recognition and enforcement proceedings. In this context, to identify the competent court for the recognition and enforcement of an arbitral award, it is mandatory to determine whether a state entity is a party to the arbitration or not.
We refer to both courts hereinafter as the competent court.
7 What are the requirements for the court to have jurisdiction over an application for recognition and enforcement of arbitral awards? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?
As explained in question 6, the only requirement for a court to have jurisdiction over an application is to determine the nature of the parties involved in the award. The presence of assets within the jurisdiction is not a requirement for recognition proceedings.
Form of the recognition proceedings
8 Are the recognition proceedings in your jurisdiction adversarial or ex parte?
Pursuant to Article 115 of the Arbitration Statute, once a party has filed an application for recognition and enforcement of an award, the competent court must decide on its admission. After that, the other party has 10 business days to submit its response to the request. Hence, the nature of the proceeding is adversarial.
Form of application and required documentation
9 What documentation is required to obtain the recognition of an arbitral award?
Article 111.2 of the Arbitration Statute establishes that a request must be filed before the competent court following the rules explained in question 8, and submitted with the original award or a certified copy thereof.
Translation of required documentation
10 If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition of an arbitral award? If yes, in what form must the translation be?
If the award was not rendered in Spanish, the competent court may request that the applicant submits a translated copy with the application. See also question 11.
Other practical requirements
11 What are the other practical requirements relating to recognition and enforcement of arbitral awards?
Pursuant to Articles 73 and 75 of the GPC, both parties must be represented by one or more admitted lawyers, unless any contrary legal rule applies. Any party can change its representative during the proceedings, subject to any special prohibition. Pursuant to Article 77, the representative has, inter alia, the power to request interim measures and initiate appeal proceedings.
The GPC also contains special rules related to documents not drafted in Spanish. Article 251 states that any documentary evidence drafted in a foreign language must be translated either by the Ministry for Foreign Affairs, an official translator or a translator designated by the judge. Designation by a judge is mandatory if there is any perceived controversy regarding the content of the translation.
In the same vein, Article 251 provides that public documents issued by authorities of foreign countries must observe the requirements of the apostille in accordance with the international treaties ratified by Colombia. In this regard, Colombia has ratified the Hague Convention Abolishing the Requirement for Legalisation for Foreign Public Documents, which entered into force for Colombia on 30 January 2001. If any public documents were issued by a state that is not a party to this Convention, those documents must first be declared legal by the Colombian consul or diplomatic agent in the foreign country.
Recognition of interim or partial awards
12 Do courts recognise and enforce partial or interim awards?
Yes. Although there is no definition of the term ‘award’ in the Arbitration Statute, the case law of the Supreme Court of Justice has stated that any decision rendered by an arbitral tribunal should be recognised if it resolves any issue relating to a dispute in a definitive manner.
However, under this criterion, procedural orders and other kinds of decisions relating to the procedure of an arbitration are not ‘awards’ and cannot be the subject of recognition proceedings (see Supreme Court of Justice, Civil Cassation Chamber, Decision dated 24 July 2016).
As explained in question 4, the interim measures do not need to be recognised under the Colombian legal system. Thus, if a tribunal renders a partial award in that regard, it has immediate effect.
Grounds for refusing recognition of an award
13 What are the grounds on which an award may be refused recognition? Are the grounds applied by the courts different from the ones provided under Article V of the Convention?
Article 112 of the Arbitration Statute contains an exhaustive list of reasons to refuse the recognition of an award. This list is largely the same as provided by Article V of the New York Convention, but has a specific restriction regarding the public policy of a country. The Supreme Court of Justice has also stated that it may review the Panama Convention when analysing matters not covered by the Arbitration Statute (see Supreme Court of Justice, Civil Cassation Chamber, Decision dated 7 September 2016).
In that regard, Article 112.b.2 of the Arbitration Statute states that recognition may be refused if the enforcement or an award would be contrary to the international public policy of Colombia. In the same vein, Article V(2)(b) of the New York Convention establishes that the recognition or enforcement of an award may be denied when it is contrary to the public policy of a country.
Hence, the criterion adopted by the Arbitration Statute is more restrictive than that provided by the New York Convention, insofar as the Statute only takes into account the international public policy and does not consider domestic public policy.
In its case law, the Supreme Court of Justice had developed an ‘international public policy’ before the Arbitration Statute was issued by the Congress. It has been defined as the ‘most basic and fundamental principles of Colombian juridical institutions’, which include good faith, due process and the impartiality of the arbitral tribunal. (See Supreme Court of Justice, Civil Cassation Chamber, Decision dated 27 July 2011; Supreme Court of Justice, Civil Cassation Chamber, Decision dated 19 December 2011; Supreme Court of Justice, Civil Cassation Chamber, Decision dated 5 November 1996.)
Effect of a decision recognising an award
14 What is the effect of a decision recognising an award in your jurisdiction? Is it immediately enforceable? What challenges are available against a decision recognising an arbitral award in your jurisdiction?
As stipulated by Article 116 of the Arbitration Statute, when an award is recognised, it is subject to enforcement before the national courts.
For that purpose, Article 68 of the Arbitration Statute provides that both civil and administrative judges are competent to enforce an award. Thus, an interested party should invoke Article 422 of the GPC to start proceedings before those judges.
Decisions refusing to recognise an award
15 What challenges are available against a decision refusing to recognise an arbitral award in your jurisdiction?
Pursuant to Article 113 of the Arbitration Statute, a decision rendered by a competent court regarding the recognition of a foreign arbitral award is not subject to any judicial review.
Stay of recognition or enforcement proceedings pending annulment proceedings
16 Will the courts adjourn the recognition or enforcement proceedings pending the outcome of annulment proceedings at the seat of the arbitration? What trends, if any, are suggested by recent decisions? What are the factors considered by courts to adjourn recognition or enforcement?
Although Article 115 of the Arbitration Statute provides that the competent court should render its decision regarding a request for recognition within 20 business days of its receipt, some recognition proceedings have taken more than two years.
Likewise, Article 112 states that the competent court is able to adjourn recognition proceedings when an annulment proceeding has been initiated at the seat of the arbitration. Nonetheless, if the seat was Colombia and any party has started annulment proceedings, it does not suspend the recognition proceedings.
17 If the courts adjourn the recognition or enforcement proceedings pending the annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security? What are the factors considered by courts to order security? Based on recent case law, what are the form and amount of the security to be posted by the party resisting enforcement?
Article 112 of the Arbitration Statute entitles the competent court to order the posting of security, following a request from the enforcing party.
There have been no judgments on the form or amount of security to be posted by the party resisting enforcement where recognition or enforcement proceedings have been adjourned subject to pending annulment proceedings under the Arbitration Statute.
Recognition or enforcement of an award set aside at the seat
18 Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an award is set aside after the decision recognising the award has been issued, what challenges are available against this decision?
It is not possible to recognise and enforce an award when it has been fully set aside at the seat of the arbitration, in accordance with Article 112.a.v of the Arbitration Statute.
If the award has been partially set aside, the competent court shall determine whether the remaining part of the award resolves any issue or not, following the case law referred to in question 12.
As has been stated in question 15, a decision on the recognition of a foreign arbitral award cannot be made subject to challenge.
Service in your jurisdiction
19 What is the applicable procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction?
The Arbitration Statute does not provide anything about the judicial service. The relevant legislation is stated in Articles 290 to 301 of the GPC.
Pursuant to Article 290 of the GPC, personal service is mandatory for (1) a decision regarding the admission of a statement of claim, (2) the summons of public entities or public officers, and (3) specific cases as provided by the law. To carry out personal service, the claimant party must serve the defendant at his or her domicile.
If personal service is not possible, the claimant party must send a communication through a certified mail company to the defendant’s domicile. It is mandatory to attach the relevant documents to the award.
Should none of the aforementioned methods be successful, Articles 293 and 108 of the GPC provide that the name of the defendant may be included in a national journal to summon him or her to appear before the competent court. If all attempts at service have failed, the state must assign an ad litem lawyer, who will represent the defendant’s interests in the proceedings.
Finally, according to Article 301 of the GPC, a defendant can be served by conclusive behaviour (i.e., if the defendant states verbally or in writing that he or she is aware of the documents, and there is a record of that statement being made).
Service out of your jurisdiction
20 What is the applicable procedure for service of extrajudicial and judicial documents to a defendant out of your jurisdiction?
The procedure is the same as discussed in question 19. Nonetheless, the terms may be flexible should the defendant party be abroad.
Identification of assets
21 Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction?
Colombia has several public registers that may be checked by any interested party order to identify its debtor’s assets, including the Real Estate Property Register held by the Office of Public Instruments, the Unique National Transit Register held by the Ministry of Transit, and the Register of Boats held by General Maritime Division.
Likewise, each city’s Chamber of Commerce has records of Colombian companies that include a reference to its heritage. In the same vein, the Chambers of Commerce Confederation holds a register of movable securities relating to Colombian companies.
Information available through judicial proceedings
22 Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?
Article 43.4 of the GPC entitles Colombian judges to order any public authority or private person to disclose any information that is relevant to a proceeding. In particular, regarding collection proceedings, the judge is entitled to use this power to identify and locate a debtor’s assets.
Availability of interim measures
23 Are interim measures against assets available in your jurisdiction? May award creditors apply such interim measures against assets owned by a sovereign state?
Article 80 of the Arbitration Statute provides that an international arbitral tribunal seated in Colombia should grant interim measures at the request of any party, unless otherwise agreed. The arbitral tribunal may also order interim measures on its own initiative in certain exceptional situations.
The objective of the measures can be to maintain or restore the status quo pending the decision in a case; to refrain from taking an action that could prejudice the arbitral proceedings; to take action to prevent any action that could prejudice the arbitral proceedings; to provide a means to preserve assets out of which a prospective award may be satisfied; or to preserve evidence that could be relevant and material to the resolution of the dispute.
However, the claimant party of the interim measures must fulfil the requirements as provided for in Article 81 of the Arbitration Statute regarding reasonableness and appropriateness, inter alia.
Irrespective of the application of interim measures against assets owned by a sovereign state, Colombian courts usually refer to the customary rules on sovereign immunity.
Procedure for interim measures
24 What is the procedure to apply interim measures against assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before applying interim measures? If yes, are such proceedings ex parte?
Pursuant to Article 88 of the Arbitration Statute, interim measures ordered by an international arbitration tribunal need not be enforced by any recognition procedure by a Colombian judge, unless any other requirements have been determined by the arbitral tribunal.
To carry out the interim measures, the judge must follow the applicable procedure for that purpose as applies in Colombia. As such, only the counterparty can claim that the interim measure has not been carried out in accordance with Article 89 of the Arbitration Statute. If a party obtained the application of an interim measure in Colombia, it must inform the judge of any modification stated by the arbitral tribunal.
A judge may request guarantees from the parties to protect the rights of third parties regarding whom the arbitral tribunal made no provision.
Interim measures against immovable property
25 What is the procedure for interim measures against immovable property within your jurisdiction?
The interim measures must be recorded in the Real Estate Property Register held by the Office of Public Instruments. If the interim measure is the seizure of the assets, the judge must name a sequester, who will be entitled to manage the asset until the conclusion of the proceeding. Note, however, that all the immovable property that may be defined as ‘family patrimony’ cannot be affected by interim measures.
Interim measures against movable property
26 What is the procedure for interim measures against movable property within your jurisdiction?
The procedure depends on the mandatory inscription of the movable property in any public registration.
When the affected movable property is subject to that inscription, for instance cars, vessels and aeroplanes, it is necessary to include the decision regarding the measures with the public registration of the assets.
However, the interim measures will be perfected with the seizure of the asset, unless it is required to be recorded on a public register. If this is the case, the competent court must determine the date, time and any other relevant conditions to carry out the measures.
In cases that involve bank accounts, the bank should be informed about the measure. It must then order the constitution of a deposit, which could amount to 150 per cent of the claimed credit.
Interim measures against intangible property
27 What is the procedure for interim measures against intangible property within your jurisdiction?
Colombian law does not provide for any special procedure in this regard. Nevertheless, the measures under Article 590.1.c. of the GPC should be analysed. Those provisions state that a judge may order any reasonable measure to protect the object of the dispute, prevent its breach or avoid any consequences deriving from it, prevent damages and ensure the effectiveness of the claim.
28 What is the procedure to attach assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before attaching assets? If yes, are such proceedings ex parte?
See questions 25 and 26.
Attachment against immovable property
29 What is the procedure for enforcement measures against immovable property within your jurisdiction?
As discussed in question 24, Article 88 of the Arbitration Statute states that interim measures taken by arbitral tribunals do not need any recognition proceeding.
Attachment against movable property
30 What is the procedure for enforcement measures against movable property within your jurisdiction?
As discussed in question 26, the interim measures should be perfected by means of a record being made in the relevant public register, or with the seizure of the assets if they are not subject to public registration.
Attachment against intangible property
31 What is the procedure for enforcement measures against intangible property within your jurisdiction?
There is no stated procedure in this regard for arbitration cases in Colombia.
Enforcement against foreign states
32 Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?
Colombian legislation has no particular rule in this regard. However, should the need arise, it would be necessary to refer to the international treaties to which Colombia is a party.
Service of documents to a foreign state
33 What is the applicable procedure for service of extrajudicial and judicial documents to a foreign state?
When required, the Colombian courts will service a foreign state through the Ministry for Foreign Affairs, insofar as it is a diplomatic situation. In such a case, the general rules stated in the GPC will apply.
Immunity from enforcement
34 Are assets belonging to a foreign state immune from enforcement in your jurisdiction? If yes, are there exceptions to such immunity?
There is no domestic law on foreign sovereign immunity. However, all the immunities granted to foreign states in Colombia are listed in the 1961 Vienna Convention on Diplomatic Relations and in the 1963 Vienna Convention on Consular Relations. In the same vein, Colombian courts should follow the customary international law.
Waiver of immunity from enforcement
35 Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? If yes, what are the requirements of such waiver?
There is no specific regulation under Colombian law. If the case requires, the court should refer to the customary law and the international treaties to which Colombia is a party.
 David Araque Quijano is a partner and Johan Rodríguez Fonseca is an associate at Gómez Pinzón Abogados.