Challenging and Enforcing Arbitration Awards

Last verified on Monday 14th August 2023

Challenging and Enforcing Arbitration Awards: Colombia

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Applicable requirements as to the form of arbitral awards

1. Must an award take any particular form?

Colombia

Article 104 of Law 1563 of 2012 (Arbitration Statute) establishes that international arbitration awards must comply with the following formal requirements:

  • It must be in writing and must be signed by the arbitrator or arbitrators (if the award is not signed by all the arbitrators, it must be signed either by most of the members of the tribunal or by its president).
  • The tribunal must “motivate” the award (ie, state the legal and factual reasoning of the tribunal), unless (i) the parties, who are not domiciled in Colombia, have agreed otherwise, or (ii) the parties reach a settlement agreement.
  • The award must indicate the date and place where the decision was rendered.
  • Once the award is rendered, signed copies shall be delivered to the parties.

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Applicable procedural law for recourse against an award (other than applications for setting aside)

2. Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)? What are the time limits?

Colombia

In general, the award resulting from either a domestic arbitration and an international arbitration with its seat in Colombia has the same effect as a judgment in a judicial proceeding in Colombia, in that no recognition will be required, unless the right of seeking annulment has been waived. Pursuant to article 106 of the Arbitration Statute, the parties may request the clarification or correction of the award, within one month following its notification to the parties. Should the arbitral tribunal accept the request, it shall clarify or correct the award within one month of the reception of the request. Additionally, under the aforementioned provision, the tribunal that rendered the award may modify, clarify, or correct it ex officio within one month of its notification.

Under Colombian law, domestic arbitral awards may be subject to revision or retraction (annulment). Article 355 of the Colombian General Procedural Code (GPC) sets forth nine specific grounds for the revision of a domestic award, while article 41 of the Arbitration Statute addresses the grounds for annulment or retraction by means of establishing nine specific causes that could allow for such measure.

On the other hand, international arbitral awards may be exclusively subject to retraction (annulment) and are not subject to revision. Article 108 of the Arbitration Statute establishes six specific grounds under which such award may be retracted or annulled: two of those grounds are established for ex officio annulments and four for ex parte requests.

Furthermore, domestic and international arbitral awards may be the object of constitutional protection actions, in the event that a constitutional fundamental right is breached.

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3. May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?

Colombia

In general, the award resulting from either a domestic arbitration or an international arbitration with its seat in Colombia has the same effect as a judgment in a judicial proceeding in Colombia, according to section 111(2) of the Arbitration Statute, in that no recognition will be required, unless the right of seeking annulment has been waived. Arbitral awards are not subject to appeal in Colombia. However, pursuant to article 108 of the Arbitration Statute, awards may be set aside or annulled, ex parte or ex officio, under the grounds provided for in said article.

There are four specific grounds to set aside an arbitral award ex parte. For the annulment to proceed in this case, the requesting party must prove:

  • the invalidity of the arbitral agreement between the parties;
  • the improper notification of the appointment of an arbitrator or the initiation of a proceeding, or the impossibility for such party to exercise its rights;
  • the award exceeds the scope of the arbitral agreement; or
  • the composition of the arbitral tribunal or the proceedings did not comply with the arbitral agreement. In turn, there are two specific grounds to set aside an arbitral award ex officio: (i) when the nature of the dispute cannot be the subject to arbitration or (ii) the award is contrary to Colombian international public order.

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Applicable procedural law for setting aside of arbitral awards

4. Is there a time limit for applying for the setting aside of an arbitral award?

Colombia

Pursuant to article 109 of the Arbitration Statute, requests to set aside an award must be filed within one month following the notification of the award.

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5. What kind of arbitral decision can be set aside in your jurisdiction? What are the criteria to distinguish between arbitral awards and procedural orders in your jurisdiction? Can courts set aside partial or interim awards?

Colombia

Any kind of arbitral award that has been rendered in Colombia may be set aside by the competent court under the grounds established in article 108 of the Arbitration Statute. The only case in which the arbitral award cannot be set aside is when the parties have explicitly waived the possibility of filing an application for this purpose, as established in article 107 of the Arbitration Statute, but this possibility only applies when both parties are domiciled abroad.

In Colombia, an arbitral award is the tribunal’s final decision about the object of the dispute. In contrast, a procedural order is any other decision different from an award, by which the tribunal resolves any other aspect related to an arbitral proceeding. It should be noted that only awards may be subject to an application to set aside (article 108 of the Arbitration Statute).  

Finally, domestic and international awards and procedural orders, rendered in Colombia, may be annulled by means of a constitutional protection action, in the event that a constitutional fundamental right is breached and such breach has been duly recognised by the competent court.

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6. Which court has jurisdiction over an application for the setting aside of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Colombia

There are three competent courts in Colombia to set aside or nullify arbitration awards. In the case of international arbitration, article 68 of the Arbitration Statute establishes that the competent court is the Civil Chamber of the Colombian Supreme Court. However, when the arbitral award is rendered by a domestic tribunal or by an international tribunal seated in Colombia, where one of the parties is a Colombian public entity, the competent court to decide the application to set aside the award is the Third Section of the Council of State. In the case of domestic arbitration awards, the competent court is the civil chamber of the corresponding judicial district superior tribunal.

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7. What documentation is required when applying for the setting aside of an arbitral award?

Colombia

The Arbitration Statute does not establish any specific regulations or requirements for the application for the setting aside of an award. However, such filing would need to be presented in writing to the competent court and, as a matter of practice, should include, among others, the power of attorney, a copy of the concerned arbitral award and any documentation through which the requesting party pretends to proof the fulfilment of the grounds alleged in the application for the setting aside of the award

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8. 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 the application for the setting aside of an arbitral award? If yes, in what form must the translation be?

Colombia

As per article 251 of the GPC, all documents that are not in Spanish must be translated either by (i) the Ministry for Foreign Affairs, (ii) an official translator or (iii) a translator designated by the judge, in the event there is a controversy with respect to the content of the translation.

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9. What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Colombia

Article 108 of the Arbitration Statute establishes the specific grounds under which an award may be set aside. Pursuant to article 109 of said statute, the requesting party must motivate (ie, state the legal and factual reasoning for) the application for setting aside the award by citing the specific grounds on which the annulment is requested. The application must be presented within one month following the notification of the award to the parties.  

Additionally, the competent authority shall determine the legal expenses related to the proceedings that must be paid by the parties. Furthermore, if the application is not successful, the legal expenses shall be paid by the requesting party.

Finally, should award be set aside, the competent authority must order the corresponding restitutions, in accordance with what has been enforced.

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10. What are the different steps of the proceedings?

Colombia

The steps of the proceedings for setting aside an arbitral award are described in article 109 of the Arbitration Statute. The application for annulment shall be proposed and supported, indicating which of the grounds of article 108 are invoked by the requesting party, before the competent judicial authority. Upon admitting the application, the judge shall provide the opposing party or parties a period of one month to present their allegations. At the end of this period, the judge must render a decision within the following two months. The procedure does not contemplate an oral phase or cross examination. No appeal can be filed against this decision.

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11. May an arbitral award be recognised or enforced pending the setting-aside proceedings in your jurisdiction? Do setting-aside proceedings have suspensive effect? If not, which court has jurisdiction over an application to stay the enforcement of the award pending the setting-aside proceedings, what are the different steps of the proceedings, and what are the criteria to be met?

Colombia

Pursuant to article 109 of the Arbitration Statute, an arbitral award may be enforced pending a setting aside proceeding, to the extent that such procedure does not suspend the enforcement of the arbitral award.

For arbitral awards rendered abroad subject to setting aside proceedings initiated at the seat of the arbitration, the competent court may suspend the recognition proceeding, pursuant to article 112 of the Arbitration Statute.

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12. What are the grounds on which an arbitral award may be set aside?

Colombia

Pursuant to article 108 of the Arbitration Statute, awards may be set aside or annulled, ex parte or ex officio, on the grounds provided for in said article.

There are four specific grounds to set aside an arbitral award ex parte. In order for the annulment to proceed in this case, the requesting party must prove:

  • the invalidity of the arbitral agreement between the parties;
  • the improper notification of the appointment of an arbitrator or the initiation of a proceeding, or the impossibility for such party to exercise its rights;
  • the award exceeds the scope of the arbitral agreement; or
  • the composition of the arbitral tribunal or the proceedings did not comply with the arbitral agreement. In turn, there are two specific grounds to set aside an arbitral award ex officio: (i) when the nature of the dispute cannot be subject to arbitration or (ii) the award is contrary to Colombian international public order.

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13. When assessing the grounds for setting aside, may the judge conduct a full review and reconsider factual or legal findings from the arbitral tribunal in the award? Is the judge bound by the tribunal’s findings? If not, what degree of deference will the judge give to the tribunal’s findings?

Colombia

The competent judicial authority in the annulment shall not decide on the substance of the dispute, nor shall it qualify or modify the criteria, motivations, evidentiary assessments or interpretations set forth by the arbitral tribunal rendering the award. Instead, the role of the competent judge is circumscribed to the establishment and verification of the existence of any of the grounds contemplated in article 108 of the Arbitration Statute. Only if the judge finds a breach of any of the specific grounds, will the annulment proceed.

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14. Is it possible for an applicant in setting-aside proceedings to be considered to have waived its right to invoke a particular ground for setting aside? Under what conditions?

Colombia

Pursuant to article 107 of the Arbitration Statute, when neither of the parties have their domicile in Colombia, they can explicitly waive their right to file an application for setting aside the arbitral award or may waive any of the grounds established in article 108 of the Arbitration Statute for such application.

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15. What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges or appeals are available?

Colombia

The setting-aside of an arbitral award in Colombia has retroactive effects, meaning that in case the award has been enforced, the competent authority must order the corresponding restitutions, in order to restore to parties to the same situation they had before the enforcement of the award.

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16. Will courts take into consideration decisions rendered in relation to the same arbitral award in other jurisdictions or give effect to them?

Colombia

In the event that the foreign arbitral award is set aside in another jurisdiction, the effect of such decision will depend on whether the arbitral award has been already recognised or is currently in a recognition proceeding in Colombia. If it has been already recognised, the setting aside of the award would not have any effect regarding the recognition, considering that the decision on the recognition of a foreign arbitral award is not subject to any challenge. In such a case, it would be necessary to have the foreign judgment that set the award aside be recognised in Colombia by means of an exequatur proceeding and, if effectively granted, the annulment will also have effects in Colombia. In turn, if the award has not been recognised when set aside abroad, pursuant to article 112(a) (v) of the Arbitration Statute, the application for recognition of the foreign arbitral award shall be denied.

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Applicable procedural law for recognition and enforcement of arbitral awards

17. 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?

Colombia

Pursuant to article 114 of the Arbitration Statute, the recognition and enforcement of arbitral awards is regulated by articles 111 to 116 of the Arbitration Statute and must comply with the international treaties ratified by Colombia.

Colombia is party to the following treaties relevant to arbitration and enforcement:

  • the New York Convention (the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, ratified by Law 39 of 1990);
  • the Montevideo Treaty (the 1889 Montevideo Treaty on International Procedural Law, as amended in 1940, ratified by Law 33 of 1992);
  • the Panama Convention (the 1975 Inter-American Convention on International Commercial Arbitration, ratified by Law 44 of 1986);
  • the Montevideo Convention (the 1979 Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards, ratified by Law 16 of 1981); and
  • the ICSID Convention (the 1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, adopted in Law 267 of 1995).

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18. 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?

Colombia

Colombia is indeed party to the New York Convention. It was adopted through Law 39 of 1990 and entered into force on 20 November 1990.

Colombia made no reservation under article I(3) of the Convention regarding reciprocity. It is important to note that since the promulgation of the Arbitration Statute and the GPC, Colombia abrogated the requirement of diplomatic reciprocity with the country of the seat of the arbitration that was formerly necessary to recognise and enforce foreign arbitral awards.

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Recognition proceedings

19. Is there a time limit for applying for the recognition and enforcement of an arbitral award?

Colombia

There is no time limit under the Arbitration Statute or otherwise to apply for the recognition of a foreign arbitral award. After an award is recognised, however, there is a five-year statute of limitation period, counted from the date of recognition to enforce the award, whether domestic or foreign.

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20. Which court has jurisdiction over an application for recognition and enforcement of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Colombia

The Colombian Supreme Court’s Civil Cassation Chamber is the competent court under Colombian laws for the recognition of foreign arbitral awards that resolve a dispute between private parties. Where there is a public agency or entity as one of the parties to the arbitration, then the Plenary of the Third Chamber of the Council of State has exclusive jurisdiction for recognition proceedings.

International arbitrations with their seat in Colombia are not subject to recognition given the local seat they are subject to the same treatment as domestic awards for this purpose. Domestic arbitration awards may be enforced directly without the recognition procedure, except when recourse to annulment has been waived, in which case recognition is required.

On the other hand, once recognised, articles 68 and 116 of the Arbitration Statute establish that applications for the enforcement of foreign arbitral awards that resolve a dispute between private parties must be filed in the circuit civil court. In turn, if there is a public agency or entity as one of the parties to the arbitration, then the competent authority for enforcement proceedings will be the circuit administrative court.

There are no special sets of rules applicable to enforcement of recognised international arbitral awards.  

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21. What are the requirements for the court to have jurisdiction over an application for recognition and enforcement and for the application to be admissible? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

Colombia

Pursuant to article 68 of the Arbitration Statute, there are two competent courts to decide on the recognition of foreign arbitral awards. The jurisdiction over an application depends on the nature of the parties to the arbitration. The Colombian Supreme Court’s Civil Cassation Chamber is the competent court for the recognition of foreign arbitral awards that resolve a dispute between private parties. On the other hand, when there is a public agency or entity as one of the parties to the arbitration, the Plenary of the Third Chamber of the Council of State has exclusive jurisdiction for recognition proceedings.

According to articles 111 and 115 of the Arbitration Statute, for an application for recognition to be admissible, the requesting party must present the original award or a copy of it. If the award is not in Spanish, the competent judicial authority may request the party to submit a translation of the award into this language.

On the other hand, once recognised, articles 68 and 116 of the Arbitration Statute establish that applications for the enforcement of foreign arbitral awards that resolve a dispute between private parties must be filed before the circuit civil court. In turn, if there is a public agency or entity as one of the parties to the arbitration, then the competent authority for enforcement proceedings will be the circuit administrative court.

Finally, under Colombian regulations, for the purpose of recognition proceedings, it is not necessary for the applicant to identify assets within the jurisdiction of the court that may be the subject of enforcement.

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22. Are the recognition proceedings in your jurisdiction adversarial or ex parte? What are the different steps of the proceedings?

Colombia

According to article 115 of the Arbitration Statute, recognition proceedings of foreign arbitral awards are ex parte. The requesting party must submit the request for recognition of the foreign arbitral award, in writing and attaching the original award or a copy thereof, to the competent court. Following the admission of the request, each of the opposing parties has 10 business days to present arguments and request and submit evidence that is deemed convenient or necessary. Once that period has elapsed, the competent court shall decide on the recognition of the foreign arbitral award within 20 business days. Furthermore, pursuant to article 113 of the Arbitration Statute, recognition is a single instance proceeding and no challenges may be presented against it.

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23. What documentation is required to obtain recognition?

Colombia

Article 111 of the Arbitration Statute provides that the requesting party must provide to the competent Colombian authority (ie, the Supreme Court Civil Cassation Chamber or the Council of State) the original or a copy of the foreign arbitral award. If the award is not in Spanish, the competent judicial authority may request the party to submit a translation of the award into this language. Article 111 of the Arbitration Statute does not require the copy to be certified.

Despite that the Arbitration Statute does not establish the requirement to provide the arbitration agreement or a copy thereof, a 2015 Supreme Court decision, HTM LLC v Fomento de Catalizadores Foca SAS, Supreme Court, 29 Oct. 2015, required the applicant to provide a copy of the arbitration agreement, in addition to the award, based upon Law 39 of 1990, which adopted the New York Convention, which mirrors article II of said convention. One year later, however, the Supreme Court decided Tampico Beverages Inc v Productos Naturales de la Sabana SA Alquería, holding that the Arbitration Statute relaxed the formality requirement derived from the New York Convention authorising statute, and held that the applicant for recognition was not required to supply the arbitration agreement or a copy of it, but only the award (or a copy of it).

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24. 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? If yes, in what form must the translation be?

Colombia

Article 111 of the Arbitration Statute provides that the competent judicial authority may require a full translation of the arbitral award to Spanish if it is written in another language. While article 111 of the Arbitration Statute does not establish that the translation must be done by a sworn translator, in certain cases the courts have requested an official certified translation, pursuant to the general mandate of the GPC.

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25. What are the other practical requirements relating to recognition and enforcement? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Colombia

Pursuant to article 111 of the Arbitration Statute, some of the requirements for the recognition and enforcement of international arbitration awards are:

  • the recognition and enforcement must be requested ex parte;
  • the requesting party must provide the original award or a copy of it;
  • if the award was not rendered in Spanish, a translation into that language is mandatory;
  • international arbitration awards rendered by arbitration tribunals seated abroad are subject to recognition for their enforcement; and
  • international arbitration awards seated in Colombia are considered domestic awards and, therefore, are not subject to recognition for its enforcement unless the right of seeking annulment has been waived. In turn, international arbitration awards seated in Colombia are considered domestic decisions and, thus, (i) are not subject to recognition unless the right of seeking annulment has been waived, and (ii) its enforceability is subject to the same rules and proceedings of a Colombian judicial decision.

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26. Do courts recognise and enforce partial or interim awards?

Colombia

Competent courts in Colombia do recognise and enforce partial and interim awards. Nevertheless, pursuant to article 88 of the Arbitration Statute, interim measures do not require recognition and therefore are immediately enforceable.

The recognition of partial final awards and interim awards is not governed by the Arbitration Statute. The Colombia Supreme Court enforces partial awards according to two decisions adopted since the Arbitration Statute, AAL Group Limited v Vertical de Aviación SAS, Supreme Court, 30 October 2017, and HTM LLC v Fomento de Catalizadores Foca SAS, Supreme Court, 24 June 2016, as well as a decision from before the Arbitration Statute, Drummond Ltd v Ferrovías y Ferrocarriles Nacionales de Colombia SA FENOCO, Supreme Court, 19 December 2011. Partial awards that dispose of one or more claims or issues may be enforced.

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27. What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from the ones provided under Article V of the New York Convention?

Colombia

Closely following article V of the New York Convention, article 112 of the Arbitration Statute provides that an arbitral award may be refused recognition at the request of the party against whom it may be invoked, if that party proves one or more of the following circumstances:

  • that at the time the arbitration agreement was affected by some disability, or that the agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made;
  • that the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or the initiation of arbitration proceedings or could not, for any other reason, assert their rights;
  • the award deals with a dispute not contemplated by the arbitration agreement or contains decisions on matters beyond the terms of the arbitration agreement. However, if the provisions of the award relating to the matters submitted to arbitration can be separated from those that are not so submitted, the award may be recognised and enforced;
  • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement between the parties or, failing such agreement, the law of the country where the arbitration occurred; or
  • the award has not yet become binding on the parties or was revoked or suspended by the judicial authority of the country seat of the arbitration.

In addition, recognition may be denied if the competent judicial authority determines on its own that one or more of the following applies:

  • that, under Colombian law, the subject of the dispute was not subject to arbitration; or
  • the recognition or enforcement of the award would be contrary to Colombia’s international public policy.

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28. When assessing the grounds for refusing recognition, may the recognition judge conduct a full review and reconsider factual or legal findings from the arbitral tribunal in the award? Is the judge bound by the tribunal’s findings? If not, what degree of deference will the judge give to the tribunal’s findings?

Colombia

The competent court for the recognition of a foreign arbitral award has no power to analyse or decide about the substance of the dispute, nor shall it qualify or modify the criteria, motivations, evidentiary assessments, or interpretations set forth by the arbitral tribunal rendering the award.

When a party to the arbitration has presented an application for recognition, together with a proper copy of the award, as stated in article 111 of the Arbitration Statute, there are two different scenarios where the judge shall deny the recognition of the foreign award:

  • Ex parte, when a party has alleged one of the following grounds:
    1. that when the arbitration agreement was executed, the requesting party was affected by some incapacity, or that such agreement is invalid under the applicable law;
    2. that the defendant party was not duly notified of the appointment of an arbitrator or of the commencement of the arbitral proceedings or was otherwise unable to assert its rights;
    3. that the award deals with matters that exceed the scope of the arbitration agreement;
    4. that the composition of the arbitral tribunal or the arbitral proceedings did not conform to the agreement of the parties or, in the absence of such agreement, to the applicable law; or
    5. (that the award is not yet binding on the parties or was annulled or suspended by a judicial authority of the seat of the arbitration.
  • Ex officio, when (i) according to Colombian law, the matter of the award could not be subject to arbitration; or (ii) That the recognition or enforcement of the award would be contrary to the international public policy of Colombia.

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29. Is it possible for a party to be considered to have waived its right to invoke a particular ground for refusing recognition of an arbitral award?

Colombia

In the first place, the Arbitration Statute does not regulate the possibility for the parties to waive their right to invoke one or more of the grounds contemplated in article 112 for refusing the recognition of an arbitral award. Nevertheless, pursuant to article 15 of the Colombian Civil Code, any right conferred by the laws may be waived, whenever this right only concerns the individual interest of the waiving party, and waiver is not expressly prohibited. Therefore, within the arbitral agreement, parties would have the possibility to waive their right to invoke any of the five ex parte grounds provided for in article 112 of the Arbitration Statute to request the refusal of the recognition before the competent authority. However, the parties may not waive the two ex officio grounds provided in that article to the extent that those grounds constitute a public order norm, which may not be waived, that is, when (i) according to Colombian law, the matter of the award could not be subject to arbitration, or (ii) that the recognition or enforcement of the award would be contrary to the international public policy of Colombia.

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30. What is the effect of a decision recognising an arbitral award in your jurisdiction?

Colombia

Pursuant to article 116 of the Arbitration Statute, once a decision recognising a foreign arbitral award has been rendered, it is immediately enforceable before the Colombian competent judicial authority. Furthermore, according to article 113 of the Arbitration Statute, there is no challenge or recourse available against a decision about the recognition of a foreign award.

Thus, the only instrument to challenge a recognition of a foreign award decision is a constitutional protection action, whenever a constitutional fundamental right has been breached.

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31. What challenges are available against a decision refusing recognition in your jurisdiction?

Colombia

Pursuant to article 113 of the Arbitration Statute, there is no challenge or recourse available against a decision over the recognition of a foreign award, regardless of whether it recognises the award or refuses its recognition.

Thus, the only instrument to challenge a decision over the recognition of a foreign award is a constitutional protection action, whenever a constitutional fundamental right has been breached.

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32. What are the effects of annulment proceedings at the seat of the arbitration on recognition or enforcement proceedings in your jurisdiction?

Colombia

When a request for annulment or suspension of a foreign arbitral award has been presented at the seat of the arbitration, according to article 112 of the Arbitration Statute, the Colombian competent court may adjourn the recognition proceeding regarding the foreign arbitral award, whenever deemed as convenient. Additionally, the party that requests the annulment or suspension of the award in the foreign jurisdiction may also demand before the Colombian competent court to order its counterparty the establishment of a security.

On the other hand, if the foreign award has been already recognised in Colombia, the annulment of the award at the seat of the arbitration will have no effect on the enforcement proceedings in Colombia, since under article 113 of the Arbitration Statute there is no challenge available against the recognition decision. Nevertheless, the annulment decision may be subject to an exequatur proceeding in Colombia and, if effectively granted, the annulment will also have effects in Colombia.

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33. If the courts adjourn the recognition or enforcement proceedings pending annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security?

Colombia

Article 112 of the Arbitration Statute authorises a competent court when it is considering a recognition request of a foreign arbitral award, to adjourn the recognition proceedings pending annulment proceedings at the seat of the arbitration, and, at the request of the party claiming the annulment or suspension of the award in a foreign jurisdiction, to order the other party to provide appropriate security for the award pending the outcome of the judicial proceedings in the forum of the seat of the arbitration. The Arbitration Statute does not specify how the competent court should calculate the amount of the security.

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34. 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 arbitral award is set aside after the decision recognising the award has been issued, what challenges are available?

Colombia

In the event that the foreign arbitral award is set aside in another jurisdiction, the effect of such decision will depend on whether the arbitral award has been already recognised or the corresponding recognition decision is pending in Colombia. If it has been already recognised, the setting aside of the award would not have any effect regarding the recognition decision and its corresponding enforcement, considering that the decision on the recognition of a foreign arbitral award is not subject to any challenge. In such case, it would be necessary to have the foreign judgement that sets the award aside be recognised in Colombia by means of an exequatur proceeding and, if effectively granted, the annulment will also have effects in Colombia. In turn, if the award has not been recognised when set aside abroad, pursuant to article 112(a)(v) of the Arbitration Statute, the application for recognition of the foreign arbitral award shall be denied.

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Service

35. What is the procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction? If the extrajudicial and judicial documents are drafted in a language other than the official language of your jurisdiction, is it necessary to serve these documents together with a translation? When is a document considered to be served to the opposite party?

Colombia

The Arbitration Statute has no special provisions about service procedures. The relevant provisions on the matter are, consequently, set forth in articles 289 to 301 of the General Procedure Code (GPC). Pursuant to article 290 of the GPC, personal service shall be applied in three scenarios: (i) a decision regarding the admission of a suit or claim, (ii) the summons of public officers and third parties, and (iii) other special cases contemplated by the law. Personal service shall be done by sending a summons to the defendant party at its domicile. If it is not possible to carry out this form of service, a notification must be sent through a certified mail company to the defendant’s domicile by the claimant. If none of the previously mentioned service methods are successful, according to articles 108 and 293 of the GPC, the notification must be done by including the name of the defendant in a national journal in order to summon the party to appear before the competent authority. If all the aforementioned methods applied to notify the defendant fail, an ad litem curator shall be appointed by the competent authority, who will act as a representative of the defendant during the proceedings. Ultimately, article 301 of the GPC provides another service method known as conclusive behaviour. This kind of service takes place when, according to the defendant’s behaviour, it can be reasonably determined that he was aware of the corresponding document.

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 of Foreign Affairs, an official translator, or a translator appointed 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 of 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.

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36. What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents together with a translation in the language of this jurisdiction? Is your jurisdiction a party to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention)? Is your jurisdiction a party to other treaties on the same subject matter? When is a document considered to be served to the opposite party?

Colombia

The Arbitration Statute has no special provisions about service procedures abroad. The relevant provisions on the matter are, consequently, set forth in articles 289 to 301 of the GPC, which establish the service procedure for national defendants. Such provisions apply mutatis mutandis to notifications to defendants domiciled abroad, with flexible terms. In this sense, pursuant to article 290 of the GPC, personal service shall be applied in three scenarios: (i) a decision regarding the admission of a suit or claim, (ii) the summons of public officers and third parties, and (iii) other special cases contemplated by the law. Personal service shall be effected by sending a summons to the domicile of the defendant party. If it is not possible to carry out this form of service, a notification must be sent through a certified mail company to the defendant’s domicile by the claimant. If none of the previously mentioned service methods are successful, according to articles 108 and 293 of the GPC, the notification must be done by including the name of the defendant in a national journal in order to summon the party to appear before the competent authority. If all the aforementioned methods applied to notify the defendant fail, an ad litem curator shall be appointed by the competent authority, who will act as a representative of the defendant during the proceedings. Ultimately, article 301 of the GPC provides another service method known as conclusive behaviour. This kind of service takes place when, according to the defendant’s behaviour, it can be reasonably determined that he was aware of the corresponding document.

On the other hand, it is important to note that Colombia is a party to the 1965 Hague Service Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, which is applicable to service procedures in foreign jurisdictions and establishes that if the document subject to notification must be addressed to a foreign jurisdiction, the Central Authority (as defined in the Convention) appointed under the provisions of the aforementioned convention, may request that such document be drafted or translated to an official language of the corresponding jurisdiction. Finally, this convention shall not be applicable when the defendant’s domicile is unknown or when its domicile is not located in a contracting state of such convention.

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Identification of assets

37. Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction? Are there any databases or publicly available registers providing information on award debtors’ interests in other companies?

Colombia

To identify the assets that are owned by an award debtor, the creditor or any interested party has several options. In the first place, the interested party can check the different public registers available in the country, including (i) the Real Estate Property Register held by the Office of Public Instruments, (ii) the Unique National Transit Register held by the Ministry of Transit, (iii) the National Aeronautical Registry held by the Aeronautical Authority of Colombia, and (iv) the Register of Vessels held by General Maritime Division, among others.

Additionally, in the event the debtor is a legal person, the Chamber of Commerce of its jurisdiction holds a record of the company’s information, which includes its assets, among other relevant data.  

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38. Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

Colombia

According to article 43.4 of the GPC, Colombian arbitral tribunals and judges may order the disclosure of information regarding the debtor that may be considered relevant to the proceeding. As per this provision, the competent authority is also entitled to order the disclosure of information necessary to identify the debtor’s assets that are relevant to the proceeding.

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Enforcement proceedings

39. What kinds of assets can be attached within your jurisdiction?

Colombia

Under Colombian regulations, as a general rule, all kinds of assets can be attached, including movable, immovable and intangible assets, except for those that are considered unattachable according to the National Constitution, article 594 of the GCP, and other special provisions.

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40. Are interim measures against assets available in your jurisdiction? Is it possible to apply for interim measures under an arbitral award before requesting recognition? Under what conditions?

Colombia

Interim measures against assets are available. Furthermore, pursuant to article 88 of the Arbitration Statute, interim measures do not depend upon prior recognition of an award in order to be considered binding and enforceable. Article 88 of the Arbitration Statute establishes that interim measures ordered by arbitral tribunals must be enforced by a judicial authority. Pursuant to article 68 ibidem, for disputes between private parties, the competent authority is the circuit civil court) In turn, if there is a public agency or entity as one of the parties to the arbitration, then the competent authority will be the circuit administrative court. The competent authority must follow the applicable procedure under Colombian regulations to enforce the interim measure.

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41. What is the procedure to apply interim measures against assets in your jurisdiction?

Colombia

Pursuant to article 80 of the Arbitration Statute, unless otherwise agreed by the parties to the arbitration, interim measures against assets may be ordered by the arbitral tribunal after being requested ex parte. Interim measures must be ordered prior to its application. Once the interim measure has been duly ordered by an arbitral tribunal, according to article 88 of the Arbitration Statute, such measure does not depend upon prior recognition of an award to be considered binding, but it must be enforced by a judicial authority. Pursuant to article 68 ibidem, for disputes between private parties, the competent authority is the circuit civil court. In turn, if there is a public agency or entity as one of the parties to the arbitration, then the competent authority will be the circuit administrative court. The competent authority must follow the applicable procedure under Colombian regulations to enforce the interim measure. Such procedure may vary depending on the nature of the asset (movable, immovable, intangible, etc). Article 89 of the Arbitration Statute establishes the grounds under which the judicial authority may deny the enforcement of an interim measure, which may be alleged by the party affected by the interim measure or applied ex officio. Finally, once the interim measure has been ordered, according to article 82 of the Arbitration Statute, any of the parties may request a preliminary order to the tribunal to ensure that the interim measure is effective.

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42. What is the procedure for interim measures against immovable property within your jurisdiction?

Colombia

Once the interim measure against immovable property has been duly ordered by an arbitral tribunal, pursuant to article 88 of the Arbitration Statute, the corresponding measure must be enforced by a judicial authority. According to article 68 ibidem, for disputes between private parties the competent authority is the circuit civil court) In turn, if there is a public agency or entity as one of the parties to the arbitration, then the competent authority will be the circuit administrative court.

In Colombia, immovable property is subject to registration before the Office of the Register of Public Instruments. Therefore, according to article 588 of the GPC, as a formal condition for interim measures against immovable property to be perfected, they must be recorded in the Real Estate Property Register held by such Office.

If the interim measure consists of the seizure of immovable assets, the competent authority shall appoint a sequester, who will have the responsibility to manage the asset until the culmination of the corresponding proceeding.

However, according to Colombian regulations, there are some assets that are excluded from the possibility of being affected by interim measures, such as attachments or seizures (ie, article 594 of the GPC lists some unattachable assets, including public assets, essential elements for personal communication, unattachable family assets, among others).

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43. What is the procedure for interim measures against movable property within your jurisdiction?

Colombia

Once the interim measure against movable property has been duly ordered by an arbitral tribunal, pursuant to article 88 of the Arbitration Statute, the corresponding measure must be enforced by a judicial authority. According to article 68 ibidem, for disputes between private parties the competent authority is the circuit civil court) In turn, if there is a public agency or entity as one of the parties to the arbitration, then the competent authority will be the circuit administrative court.

According to Colombian regulations, when movable property is subject to registration before any public registry, the interim measure must be recorded in the applicable public registry to be effective. This is the case, for example, of vehicles, vessels, and airplanes.  

When the movable property is not subject to registration before any public registry, it must be seized for the interim measure to be perfected. In such scenario, the competent authority shall establish the relevant conditions, such as time or date, for the corresponding proceeding.

It should be emphasised that if the movable property, which is subject to the interim measure, has been previously registered in the Registry of Movable Guarantees as outlined in article 48 of Law 1676 of 2013, the movable guarantee in question may take precedence over the interim measure, based on the conditions specified in the aforementioned article.

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44. What is the procedure for interim measures against intangible property within your jurisdiction?

Colombia

Once the interim measure against intangible property has been duly ordered by an arbitral tribunal, pursuant to article 88 of the Arbitration Statute, the corresponding measure must be enforced by a judicial authority. According to article 68 ibidem, for disputes between private parties, the competent authority is the circuit civil court. In turn, if there is a public agency or entity as one of the parties to the arbitration, then the competent authority will be the circuit administrative court.

Pursuant to article 80 of the Arbitration Statute, interim measures against intangible property may be applied if under the arbitral tribunal discretion such interim measures are necessary to protect the right under dispute or to guarantee the efficacy of the arbitral award. This provision establishes that interim measures must be requested ex parte and ordered by the arbitral tribunal. Should the intangible asset be subject to any public registry (ie, trademarks, intellectual property rights, or patents, among others), the interim measure must be registered in it for being effective. Regarding the attachment of intangible assets, article 593 of the GPC establishes the general procedures that shall be followed for the attachment of different types of assets, and special provisions for some intangible assets, such as credits or similar rights. For the attachment of intangible assets subject to registry that do not have a specific procedure established in article 593 ibidem, the judge shall notify the authority responsible for keeping the register of such asset and this authority will be in charge of the registration of the attachment.

On the other hand, it is important to note that pursuant to article 590 of the GPC, the arbitral tribunal may decree unnamed interim measures, which may include any reasonable measure for the protection of the right object of the dispute that is not directly established in the law. Such measures could attain an intangible property such as, for example, the obligation to not use the name of a Company.

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45. What is the procedure to attach assets in your jurisdiction? Who are the stakeholders in the process?

Colombia

Once the attachment has been duly ordered by an arbitral tribunal, pursuant to article 88 of the Arbitration Statute, it must be enforced by a judicial authority. According to article 68 ibidem, for disputes between private parties the competent authority is the circuit civil court. In turn, if there is a public agency or entity as one of the parties to the arbitration, then the competent authority will be the circuit administrative court.

Pursuant to article 80 of the Arbitration Statute, any attachment against an asset in Colombia must be, in the first place, requested ex parte and ordered by an arbitral tribunal or a judge. The attachment procedure varies depending on whether the asset is movable or immovable.

Regarding movable property, according to Colombian regulations, when such property is subject to registration before any public registry, the attachment must be recorded in the applicable public registry to be effective. This is the case, for example, of vehicles, vessels and airplanes. When the movable property is not subject to registration before any public registry, it must be seized for the interim measure to be perfected. In such a scenario, the competent authority shall establish the relevant conditions, such as time or date, for the corresponding proceeding.

Regarding immovable property, it is important to note that under Colombian regulations such property is subject to registration before the Office of Register of Public Instruments. In this sense, according to article 588 of the GPC, as a formal condition for attachments against immovable property to be effective, they must be recorded in the Real Estate Property Register held by such office. Once the attachment has been duly registered, the arbitral tribunal or the judge shall appoint a sequester, who will have the responsibility to manage the asset until the culmination of the corresponding proceeding.

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46. What is the procedure for enforcement measures against immovable property within your jurisdiction?

Colombia

Once the attachment against immovable property has been duly ordered by an arbitral tribunal, pursuant to article 88 of the Arbitration Statute, it must be enforced by a judicial authority. According to article 68 ibidem, for disputes between private parties, the competent authority is the circuit civil court. In turn, if there is a public agency or entity as one of the parties to the arbitration, then the competent authority will be the circuit administrative court.

In Colombia, immovable property is subject to registration before the Office of Public Instruments. In this sense, according to article 588 of the GCP, as a formal condition for attachments against immovable property to be effective, they must be recorded in the Real Estate Property Register held by such office. Once the attachment has been duly registered, the arbitral tribunal or the judge may appoint a sequester, who will have the responsibility to manage the asset until the culmination of the corresponding proceeding. It is important to note that, according to Colombian regulations, there are some immovable assets that may be excluded from the possibility of being attached (ie, unattachable family asset).

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47. What is the procedure for enforcement measures against movable property within your jurisdiction?

Colombia

Once the attachment against movable property has been duly ordered by an arbitral tribunal, pursuant to article 88 of the Arbitration Statute, it must be enforced by a judicial authority. According to article 68 ibidem, for disputes between private parties the competent authority is the circuit civil court. In turn, if there is a public agency or entity as one of the parties to the arbitration, then the competent authority will be the circuit administrative court.

Pursuant to article 80 of the Arbitration Statute, any attachment against an asset in Colombia must be, in the first place, requested ex parte and ordered by an arbitral tribunal or a judge. Regarding movable property, should such property be subject to registration before any public registry, the attachment must be recorded in the applicable public registry to be effective. This is the case, for example, of vehicles, airplanes and vessels. When the movable property is not subject to registration before any public registry, the movable property must be seized as a formal condition for the attachment to be effective. In such scenario, the arbitral tribunal or the judge shall establish the relevant conditions, such as time or date, for the corresponding proceeding.

It should be emphasised that if the movable property, which is subject to attachment, has been previously registered in the Registry of Movable Guarantees as outlined in article 48 of Law 1676 of 2013, the movable guarantee in question may take precedence over the attachment, based on the conditions specified in the aforementioned article.

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48. What is the procedure for enforcement measures against intangible property within your jurisdiction?

Colombia

Once the attachment against intangible property has been duly ordered by an arbitral tribunal, pursuant to article 88 of the Arbitration Statute, it must be enforced by a judicial authority. According to article 68 ibidem, for disputes between private parties, the competent authority is the circuit civil court. In turn, if there is a public agency or entity as one of the parties to the arbitration, then the competent authority will be the circuit administrative court.

Pursuant to article 80 of the Arbitration Statute, attachments against intangible property must be, in the first place, requested ex parte and ordered by the arbitral tribunal. Once the attachment has been ordered, should the intangible asset be subject to any public registry, the attachment must be registered in it for being effective. Regarding the attachment of intangible assets, article 593 of the GPC establishes the procedures that shall be followed for different types of intangible assets, such as credits or similar rights and shares, among others.

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49. Are there specific rules applicable to the attachment of assets held by banks? Is it possible to attach in your jurisdiction sums deposited in bank accounts opened in a branch or subsidiary of a foreign bank located in your jurisdiction or abroad? Is it possible to attach in your jurisdiction the bank accounts opened in a branch or subsidiary of a domestic bank located abroad?

Colombia

Pursuant to article 80 of the Arbitration Statute, any attachment against sums deposited in bank accounts in Colombia must be, in the first place, requested ex parte and ordered by an arbitral tribunal. Once the attachment has been ordered, under article 88 of the Arbitration Statute, it must be enforced by a judicial authority, that is, according to article 68 ibidem, the circuit civil court for disputes between private parties and the circuit administrative court, if there is a public agency or entity as one of the parties to the arbitration.

The judicial competent authority must inform the duly authorised financial entity (either a branch or a subsidiary) about the measure. Within the following three business days, it must then order the constitution of a deposit, which could amount to 150 per cent of the claimed credit plus the expenses of the proceedings. It is important to note that, currently, there are no branches of foreign banks located in Colombia. On the other hand, pursuant to article 2 of Decree 564 of 1996, as a formal condition for the savings bank account of natural persons to be attachable, the amounts deposited in it must exceed 44,614,977 pesos (which amount to approximately US$10,000). As a consequence, sums deposited in savings bank accounts of natural persons can only be attached above such amount. This figure is adjusted annually according to inflation by the Superintendency of Finance.

On the other hand, if the sums are deposited in financial entities located abroad, the attachment may be ordered by the arbitral tribunal seated in Colombia, but its enforcement must be executed in the jurisdiction where the bank account is located, following the applicable regulations and proceedings of the corresponding jurisdiction.

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50. May a creditor of an award rendered against a private debtor attach assets held by another person on the grounds of piercing the corporate veil or alter ego? What are the criteria, and how may a party demonstrate that they are met?

Colombia

In Colombia, although several regulations contemplate the possibility of joint and several liability of the shareholders when the Company is used to defraud third parties, such as article 42 of Law 1258 of 2008, paragraph of article 71 of Law 222 of 1995 and article 44 of Law 190 of 1995, among others,  those regulations do not clearly establish the cases in which the judge may pierce the corporate veil. The establishment of the grounds for this figure to be applied in Colombia has been the result of the jurisprudential development of the Constitutional Court, the Supreme Court, and the Superintendence of Corporations. In its most recent ruling on the subject, the Supreme Court of Justice, in its ruling SC1543 of 2022, established two requirements for piercing the corporate veil:

  • the use of the corporation to execute fraudulent legal business; or
  • that this act generates damages for any third party, a concept that involves, in its broadest sense, any affected party, including the state itself.

Once the corporate veil has been pierced, the judge or arbitral tribunal may attach assets held by the shareholders of the corporation.

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Recognition and enforcement against foreign states

51. Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

Colombia

There are no specific provisions in the Arbitration Statute regarding the recognition and enforcement of arbitral awards against foreign states. However, according to article 114 of the Arbitration Statute, recognition and enforcement of arbitral awards are also governed by the provisions contained in treaties and other acts of international law signed and ratified by Colombia. In this sense, the applicable rules concerning the recognition and enforcement of arbitral awards against foreign states are contained in section 6, Chapter IV of the ICSID Convention.

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52. What is the procedure for service of extrajudicial and judicial documents to a foreign state? Should they be served through diplomatic channels? Is it necessary to serve extrajudicial and judicial documents together with a translation in the language of the foreign state? When is a document considered to be served to a foreign state?

Colombia

The service of documents to a foreign state is a subject of international public law. In Colombia, there are no specific provisions on this matter. Nonetheless, regarding arbitration disputes subject to the rules of the ICSID Convention, to which Colombia is party, Chapter IV, section 1 of such Convention provides that a Contracting State (as defined thereof) or a national of such state shall service the request of initiation in writing to the Secretary-General (as defined thereof), who will file a copy of it to the counterparty. The request shall include information about the matters in dispute, the identification of the parties, and the arbitration agreement.

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53. May a foreign state invoke sovereign immunity (immunity from jurisdiction) to object to the recognition or enforcement of arbitral awards?

Colombia

Colombia does not have express and specific legal provisions in relation to sovereign immunity as a ground to object to the recognition or enforcement of arbitral awards. However, the Constitutional Court of Colombia has recognised, pursuant to article 38.1(b) of the Statute of the International Court of Justice, the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property as a source of international custom (Constitutional Court of Colombia, Decision SU-443 of 2016), despite the fact that such convention has not been ratified by Colombia. According to article 17 of such Convention, if a state has entered into a written arbitral agreement to resolve controversies or disputes in relation to a commercial transaction (iure gestioni), such state may not invoke immunity from jurisdiction before a competent foreign court or state to object the recognition of the corresponding arbitral award. Therefore, under Colombian regulations, a foreign state may not invoke sovereign immunity (immunity from jurisdiction) to object to the recognition of arbitral awards, when the conditions of article 17 of the aforementioned convention have been gathered.

Regarding the enforcement of arbitral awards, it is important to note that the Constitutional Court of Colombia (Constitutional Court of Colombia, Decision SU-443 of 2016), has also recognised as an international custom that an asset belonging to a state may be subject to immunity from execution, unless one of the following conditions is met:

  • the asset is not used for activities other than non-commercial public service purposes;
  • the state has expressed its consent to the attachment or coercive measure on its assets; or
  • the asset has been used for the payment of the respective judicial claim.

However, it should be noted that not all states recognise those exceptions to the immunity from execution as an international custom and, therefore, the enforcement of the arbitral award will depend on each state's position and regulations regarding this matter.

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54. May award creditors apply interim measures against assets owned by a sovereign state?

Colombia

In Colombia there are no specific provisions regarding the application of interim measures against assets owned by a sovereign state. Nonetheless, the Constitutional Court of Colombia (Constitutional Court of Colombia, Decision SU-443 of 2016), has recognised as an international custom that an asset belonging to a state may be subject to immunity from execution, unless one of the following conditions is met:

  • the asset is not used for activities other than non-commercial public service purposes;
  • the state has expressed its consent to the attachment or coercive measure on its assets; or
  • the asset has been used for the payment of the respective judicial claim.

However, it should be noted that not all states recognises those exceptions to the immunity from execution as an international custom and, therefore, the enforcement of the arbitral award will depend on each state's position and regulations regarding this matter.

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55. Are assets belonging to a foreign state immune from enforcement in your jurisdiction? Which classes of assets belonging to states are immune from enforcement as a matter of principle? Are there exceptions to immunity? How can it be proven whether an asset is immune from enforcement? Provide practical examples of assets belonging to states that were successfully attached in your jurisdiction.

Colombia

In Colombia, there are no specific provisions regarding the application of interim measures against assets owned by a sovereign state. Nonetheless, the Constitutional Court of Colombia (Constitutional Court of Colombia, Decision SU-443 of 2016), has recognised as an international custom that an asset belonging to a state may be subject to immunity from execution, unless one of the following conditions is met:

  • the asset is not used for activities other than non-commercial public service purposes;
  • the state has expressed its consent to the attachment or coercive measure on its assets; or
  • the asset has been used for the payment of the respective judicial claim.

However, it should be noted that not all states recognises those exceptions to the immunity from execution as an international custom and, therefore, the enforcement of the arbitral award will depend on each state´s position and regulations regarding this matter.

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56. Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? What are the requirements of waiver?

Colombia

In Colombia, there are no specific provisions regarding the possibility for a foreign state to waive its immunity from enforcement. Nonetheless, Colombia, as many other states, adopted the theory known as the theory of relative immunity. Therefore, as a general rule, foreign state property cannot be executed, unless the following conditions are met:

  • when the foreign state expressly waives its immunity from execution, whether this is through an international treaty, an arbitration agreement, a written contract, or by a declaration before a court or a written communication within the framework of a judicial proceeding;
  • when the foreign state has expressly determined that certain assets of its property can be used to secure obligations and/or judicial claims; and
  • when the assets of the foreign state serve specifically for commercial purposes, and these are in the territory of the forum state, provided that these assets have a connection with the object of the claim or with the agency against which the judicial proceeding was addressed.

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57. Is it possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state within your jurisdiction? What are the criteria, and how may a party demonstrate that they are met? Provide practical examples of assets held by alter egos that were successfully attached by a state’s creditor in your jurisdictions.

Colombia

Colombian regulations do not establish the possibility to attach the assets held by an alter ego of a foreign state. Furthermore, there are no precedents in this respect in Colombia.

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58. May property belonging to persons subject to national or international sanctions be attached? Under what conditions? Is there a specific procedure?

Colombia

There are no regulations in Colombia on this matter.

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