Litigation: Colombia

1. Describe the general organisation of the court system for civil litigation.

Colombia

Colombia is a unitary republic with no distinction between state and federal institutions (article 1 of Colombia’s Constitution), with a separation of powers (article 113 of Colombia’s Constitution), and a court system based on different jurisdictions hierarchically organised under separate high courts (articles 228 to 257 of Colombia’s Constitution). Colombia’s courts issue independent judgments, through public and permanent procedures (article 228 of Colombia’s Constitution). The Judicial Branch is organised by Statutory Law No. 270 of 1996 (partially modified by Law 1285 of 2009).

Civil disputes are, in principle, adjudicated in Colombia’s Ordinary Jurisdiction. The Ordinary Jurisdiction is hierarchically organised (section 234 of Colombia’s Constitution and sections 15 to 34 of the General Code of Procedure), as follows:

• the Civil Chamber of Colombia’s Supreme Court of Justice is the highest civil court in Colombia (section 243 of Colombia’s Constitution). In principle, it rules over extraordinary remedies against second instance rulings, over the recognition of foreign rulings and awards (article 30 of the General Code of Procedure), and over the motions to set aside awards issued in international arbitrations seated in Colombia (article 68 of Law 1563 of 2012);
• the Superior District Tribunals. In principle, these courts act as second instance to civil circuit courts and decide upon motions to set aside awards issued in domestic arbitrations;
• civil circuit judges. In principle, these courts act as the first instance of the claims that exceed approximately US$35,000 (articles 20 and 24 of the General Code of Procedure), and act as second instance to the civil municipal judges (article 23 of the General Code of Procedure; and
• civil municipal judges. In principle, these courts act as the only or first instance of the claims that do not exceed approximately US$35,000 (articles 17, 18 and 24 of the General Code of Procedure).

The procedure for the appointment of judges depends on their hierarchy:

• each Justice of the Civil Chamber of Colombia’s Supreme Court is chosen by this same Court for an eight-year term, based on five-candidate lists sent by the Administrative Chamber of the Superior Council of the Judiciary (article 15 of Law 270 of 1996 and 233 of Colombia’s Constitution);
• each magistrate of a Superior District Court is chosen by the Supreme Court of Justice, based on five-candidate lists sent by the Administrative Chamber of the Superior Council of the Judiciary (section 53 of Law 270 of 1996); and
• civil and municipal judges are chosen by the Superior Tribunal of a given district, based on lists sent by the Administrative Chamber of the applicable Sectional Council of the Judiciary and according to the Judicial Career set forth in Law 270 of 1996 (article 20(1) of Law 270 of 1996).

Based on its civil law tradition, the Colombian civil court system is not precedent-based. Nevertheless, Colombia’s Constitutional Court, based on the right to equality and in its authority as sole interpreter of the Constitution, established a soft-precedent system for the following rulings: (i) the binding interpretations made by the Constitutional Court when adjudicating constitutional actions for the analysis of the constitutionality of laws (article 243 of Colombia’s Constitution); (ii) the ratio decidendi of the Constitutional Court’s rulings on constitutional actions for the protection of fundamental rights; and (iii) the probable doctrine set forth by the Civil Chamber of the Supreme Court of Justice when uniformly ruling on three cases with the same point of Law (article 10 of Law 153 of 1887 and 7 of the General Code of Procedure). In the first case, no court may overturn or rule against the precedent set by the Constitutional Court. In other cases, the court may rule against the precedent, so long as it indicates the reasons for its dissent.

Finally, Colombia’s Constitution provides for the possibility of using jury-based rulings on criminal matters (section 116 of Colombia’s Constitution). Nevertheless, this possibility is not currently provided under Colombia’s criminal law.

2. Give an overview of basic procedural principles that govern civil litigation in your jurisdiction.

Colombia

The basic procedural principles of Colombia’s civil litigation are expressly provided by the General Code of Procedure (articles 2 to 14), as follows:

• access to justice;
• oral and hearing-based procedures;
• equality;
• concentration, meaning that the procedures must be conducted within the smallest possible time frame;
• direct and personal contact between the courts and the parties;
• rule of law;
• right to a second instance, unless provided by the law;
• free-of-charge administration of justice; and
• due process.

3. Describe the general organisation of the legal profession.

Colombia

For a person to be admitted as a lawyer, he or she must pass a state-approved law programme. After finishing said programme, the prospective lawyer can request the issuance of his or her professional licence to Colombia’s Superior Council of the Judiciary, without the need for an exam of admission.

Colombia’s legal profession is not exercised through a fused or split bar. There are no specific rights of audience for separate courts. As a rule, foreign lawyers cannot practice in Colombia. However, foreign lawyers may practice and represent clients in international arbitration tribunals seated in Colombia (article 73(3) of Law 1563 of 2012).

4. Give a brief overview of the political and social background as it relates to civil litigation.

Colombia

Colombia is recognised in Latin America for a strong civil procedural law tradition. This tradition, however, does not translate into practice. Colombia suffers a deeply rooted judicial congestion, as indicated in reports like the Doing Business issued by the World Bank and the internal judicial statistics issued by the Superior Council of the Judiciary.

Historically, Colombia’s procedural reforms have been issued to address this congestion, with measures that range from the enactment of new procedural regulations (most recently, the enactment of the General Code of Procedure in 2012), to the allocation of limited and exceptional dispute resolution powers to entities that are part of the Executive Branch (the Superintendency of Corporations, the Superintendency of Industry and Commerce, and the Superintendency of Finance). Currently, prospective procedural reforms are directed to digitalise and expedite proceedings through the enactment of exceptional procedural reforms issued during the covid-19 pandemic, as permanent legislation.

Most civil cases in Colombia are comprised of collection proceedings based on obligations contained in collectible instruments (checks, promissory notes, contracts, among others). The rest of the cases are declarative proceedings based on contracts, torts and land disputes.

Historically, Colombia did not have professional or “activist” plaintiffs. Most recently, with the enactment of a special regulation on consumer rights (through Law 1480 of 2011), consumer associations and private lawyers have built practices to professionalise these types of disputes and act as activist plaintiffs against specific corporations or markets.

5. What are the sources of law and rules governing international jurisdiction in civil matters?

Colombia

The general provisions that establish a Colombian Civil Court’s competence to rule over a given dispute are contained in articles 15 to 34 of a General Code of Procedure. Section 28 of the code provides the following rules for establishing territorial jurisdiction:

• a court located in the defendant’s domicile has the territorial competence to rule over any dispute commenced against the said defendant. If the defendant is not domiciled or does not reside in Colombia, then the competent court would be the one located in the claimant’s domicile or place of residence (section 28(1) of the General Code of Procedure);
• the competent court in cases of conflicts over contracts or collectible instrument, is the court of the place of performance of any of their obligations. Any agreement regarding a contractual domicile is not valid under Colombian civil procedural law (section 28(3) of the General Code of Procedure);
• the competent court in cases of conflicts involving a corporation, is a court located in the said corporation’s main domicile. If the proceeding is based on the actions of a corporation’s branch or agency, the territorial competence is attributed to a court located in the domicile of the latter (section 28(5) of the General Code of Procedure); and
• the competent court in cases of conflicts involving torts, is a court located in the place where the facts of the dispute occurred (section 28(5) of the General Code of Procedure).

If a court considers that, through any of the above-mentioned rules, it has jurisdiction to rule over a proceeding against a foreign defendant or on a dispute that totally or partially developed abroad, the said provisions give the court the power to admit the claim and conduct the proceeding.

6. What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?

Colombia

The determination of the competent court to adjudicate a civil matter is conducted through the mandatory provisions established in the General Code of Procedure for that purpose (articles 15 to 34). This determination is based on four principles:

• a subjective jurisdiction, which is determined by the status that a specific party may have in a civil proceeding (for example, a diplomat or a public servant);
• an objective or material jurisdiction, which is determined by the subject matter of the dispute and/or the amount of the claims;
• a territorial jurisdiction, which determines the municipality or the circuit with closer ties to the dispute; and
• a functional jurisdiction, which is determined by the provisions that expressly assign the adjudication of certain disputes to a specific court.

There is no specific conflict of jurisdiction rules for international commercial or civil disputes. Therefore, the same mandatory provisions envisaged for domestic disputes are applicable to international civil and commercial disputes.

7. Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?

Colombia

Colombia’s civil jurisdiction does not offer special advantages that can make it an appealing venue for forum shopping. Therefore, it is not likely for Colombian courts to attract disputes that have a nexus with other jurisdictions.

8. How will a court treat a request to hear a dispute that is already pending before another forum?

Colombia

The answer to this question varies depending on whether the forum is domestic or international.

In a domestic forum, article 100 of the General Code of Procedure provides that a respondent may submit as a preliminary defence the existence of a pending dispute between the same parties over the same subject matter. If the respondent evidences these circumstances, the court shall terminate the second proceeding.

In an international forum, Colombian civil procedure regulation does not establish a particular circumstance under which a foreign proceeding could serve as grounds to argue lis pendens in a proceeding conducted in Colombia. Moreover, section 606 of the General Code of Procedure establishes that any foreign ruling (whether final or in any other form), shall only have effects in Colombia when recognised by the Supreme Court of Justice through an exequatur proceeding. Therefore, any foreign proceeding that could constitute lis pendens to a Colombian Court when the decisions issued within it are recognised under Colombian law through the successful conduction of an exequatur.

Section 606(5) of the General Code of Procedure provides that the Supreme Court of Justice shall not recognise a foreign judgment in the event a national court is deciding or has already decided a dispute over the same subject matter.

9. How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?

Colombia

Colombia has a robust protection of arbitration agreements both in its civil procedure legislation, and its national and international arbitration legislation.

As for civil legislation, article 100 of the General Code of Procedure establishes that a defendant may submit, as a preliminary defence against a civil claim, the existence of an arbitration agreement. Should the defence prosper, the court will finalise the proceeding.

As for national arbitration:

• article 3 of Law 1563 of 2012 establishes that if party invokes the existence of an arbitration agreement in its claim, counterclaim or preliminary defences (as applicable), and the other party does not oppose such existence, the court will consider that the arbitration agreement does exist and terminate the proceeding;
• article 27 of Law 1563 of 2012 establishes that any arbitration tribunal shall have the power to rule over its own competence, and its decision prevails over any other issued by a civil court. In the event a civil court is conducting a proceeding over a dispute subject to arbitration, and an arbitration tribunal constituted to solve that same dispute determines its own competence, the arbitration tribunal shall request to the court the proceeding’s submission, and the court shall comply.

As for international arbitration, article 70 of Law 1563 of 2012 provides that a court shall refer the parties to arbitration in the event any party to a civil proceeding submits and proves the prima facie existence of an arbitration agreement on or before the filing to the claim’s response. Notably, the court should not conduct any analysis as to whether the arbitration agreement is null, void, inoperative or incapable of being performed. Notwithstanding the motion to refer the parties to arbitration, arbitral proceedings may nevertheless be commenced and continued, and an award may be issued while the issue is pending before the civil court.

Moreover, section 79 of Law 1563 of 2012 provides that the arbitration tribunal is the only competent authority to rule over its own competence, even regarding defences or objections related to the existence, annulment, validity, and effectiveness of the arbitration agreement, as well as related to the arbitration agreement’s scope and, in general, any defence or objection that could bar the arbitration tribunal from ruling over the merits.

10. May courts in your country review arbitral awards on jurisdiction?

Colombia

The answer to this question varies depending on whether the arbitration is domestic or international.

In domestic arbitration, the arbitration tribunal’s decision on jurisdiction is adopted through a writ issued within the proceeding, which is subsequently reviewed and incorporated in the final award (section 30 of Law 1563 of 2012). Therefore, the judicial review of awards on jurisdiction falls within the general judicial review of final awards through a motion for annulment or extraordinary review (sections 41 and 44 of Law 1563 of 2012).

In international arbitration, section 79 of Law 1563 of 2012 provides that the judicial review of arbitral awards on jurisdiction depends on the type and stage in which this ruling is adopted:

• if the ruling is adopted as a preliminary matter and the arbitration tribunal asserts its total or partial competence, this decision would be challenged through motion to set aside the final award deciding on the dispute;
• if the ruling is adopted as a preliminary matter and the arbitration tribunal rules that it has no competence to rule over the arbitration, the affected party may file a motion for to set aside this decision within the month following its service; and
• if the award on jurisdiction is issued within the final award, the affected party may challenge it through a motion to set aside the final award deciding on the dispute (section 109 of Law 108 if 1563 of 2012).

11. Are anti-suit injunctions available?

Colombia

Colombian civil law does not expressly provide the possibility for anti-suit injunctions. Nevertheless, the objective sought through this type of injunction could be accomplished through article 590(c) of the General Code of Procedure (in case a public entity is involved, through article 229 of the Code of Administrative Procedure and of Administrative Disputes), which establishes that a party has the right to request any interim measure that the court finds reasonable towards obtaining the protection of the rights subject to the proceeding, avoid its infraction or avoid the consequences of such infraction, prevent damages, cease the present damages, and secure the claim’s effectiveness. The appointed court may modulate the measure and order a measure less demanding or different from the one requested.

Therefore, anti-suit injunctions under Colombian civil procedure law would be admissible as interim measures.

12. Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?

Colombia

Colombian law does not provide legislation regarding sovereign immunity in matters of jurisdiction and enforcement of decisions against foreign states or entities.

Colombian legislation only relates to diplomatic immunity, as Colombia is a party to the 1961 Vienna Convention on Diplomatic Relations, and sections 235 of Colombia’s Constitution and 30(6) of the General Code of Procedure establish that the Civil Chamber of the Supreme Court of Justice is competent to rule over civil proceedings in which a foreign state or a diplomatic agent are a party, in the cases provided for in international law. Therefore, any regulation regarding sovereign immunity in matters of jurisdiction and enforcement of decisions, shall be conducted through the treaties that the Republic of Colombia executes with other states, which shall also constitute domestic law within the Republic of Colombia.

Although Colombian legislation does not provide for immunity of jurisdiction or execution to foreign sates of state entities, Colombia’s Administrative Legislation (section 42 of Law 1563 of 2012 and section 192 of the Code of Administrative Procedure and Administrative Disputes), grants: (i) a right to Colombian public entities to request the suspension of an arbitration award’s execution during a motion to set aside the award; and (ii) broader timelines for Colombian public entities for the payment of any ruling or award issued against them. Additionally, establishes that the right to collect rulings or awards issued against Colombian public entities, may only be exercised after 10 months of their service.

13. How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?

Colombia

Civil proceedings are commenced with a claim filed by a person with the capacity to act as or represent a party. Once the claim is filed, the court has the power to actively conduct and direct the proceeding and does not need the parties to do so. Specifically, article 42(1) of the General Code of Procedure provides that the court has the power and duty to conduct the proceeding, see to its prompt solution, adopt the necessary measures to avoid its paralysis, avoid delays, and procure for the highest efficiency in its solution.

14. What are the requirements for filing a claim? What is the pleading standard?

Colombia

The general requirements for filing a claim are expressly provided in article 82 of the General Code of Procedure, as follows:

• the indication of the court to which it is delivered;
• the name and domicile of the parties, or their legal representatives;
• the name of claimant’s counsel;
• the claims, expressed with precision and clarity;
• the facts over which the claims are based, duly determined, classified, and numbered;
• the evidence provided or requested by the claimant;
• a sworn oath of the claim’s monetary value;
• the legal grounds of the claim;
• the claim’s amount, whenever necessary to determine the court’s competence;
• the addresses in which the parties, their representatives, and counsel shall receive services; and
• any specific requirements set forth in the law.

Section 83 of the General Code of Procedure provides for additional requirements in:

• proceedings concerning real estate matters, the claimant the specification of said assets;
• in proceedings based on rural real state, their localisation, neighbouring properties, and the name under which the property is known within the region;
• in proceedings based on movable assets, their quantity, qualities, weight or measures and, in general, their identification;
• in proceedings based on groups of assets, their general description; and
• in proceedings in which the plaintiff requests interim reliefs, the identifications of the persons or assets over which the measures would be imposed.

These requirements aim towards a detailed substantiation standard for civil claims.

15. What are the requirements for answering claims? What is the pleading standard?

Colombia

The general requirements for answering claims are expressly provided in article 96 of the General Code of Procedure, as follows:

• the identification of the defendant and its counsel;
• an express and concrete response to the claims and the facts, indicating which of them are true, which of them are not, and which of them are out of the defendant’s knowledge;
• the defences against the claim’s merits;
• the evidence provided or requested by the defendant; and
• the address in which the defendant shall receive services.

These requirements aim toward a detailed substantiation standard for civil claims.

16. What are the rules regarding further briefs and submissions?

Colombia

Section 93 of the General Code of Procedure establishes that any party may amend its claim or counterclaim, under the following rules: (i) a claimant may correct or clarify its claim in any moment between its presentation and the summoning of the initial hearing; (ii) a claimant may only reform its claim once before the summoning of the initial hearing, in order to alter some (but not all) the parties, its claims, the facts or the evidence requested.

After the parties file their corresponding claims and responses, they shall only present factual assertions and legal evaluations of their cases in their respective closing arguments, which shall be orally presented to the court after the gathering of evidence (section 373(4) of the General Code of Procedure, among others).

Amicus briefs are not provided for in civil proceedings in Colombia.

17. To what degree are civil proceedings made public?

Colombia

Article 3 of the General Code of Procedure provides civil proceedings are public and may only be subject to reserve when the law explicitly provides it.

18. Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?

Colombia

Yes. A court may render interim assessment about the factual or legal issues in the dispute (without constituting prejudgment), in the following cases: (i) the judgment over preliminary defences filed by a defendant along with its response (article 100 of the General Code of Procedure); or (ii) the judgment over interim measures (article 590 of the General Code of Procedure).

Section 312 of the General Code of Procedure regulates the effects of settlements during a civil proceeding. As a general rule, this provision establishes that the parties may settle their disputes at any stage of the proceeding and may also settle the differences that could arise regarding the compliance of a judgment. A settlement shall produce procedural effects, whenever it is submitted by the parties to the court, and the court has reviewed and accepted its legality.

19. Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?

Colombia

Colombian law provides for a mandatory conciliation before and during any civil proceeding, unless otherwise expressly provided in a specific statute or regulation.

With respect to the mandatory prejudicial conciliation, Law 640 of 2001 provides that any prospective claimant must summon the prospective defendant to an extrajudicial conciliation hearing before a conciliation centre authorised by the Ministry of Justice. Failure to do so could imply the future claim’s rejection.

Additionally, section 372 of the General Code of Procedure provides that the court shall exhort the parties to conciliate their differences and even propose formulas to do so in any initial hearing within a standard civil declarative proceeding. The proposition of formulas by the court should not be construed nor considered a prejudgment on the merits of the case.

20. What are the forms of emergency or interim relief?

Colombia

In civil matters, section 590 of the General Code of Procedure provides the forms of emergency or interim relief that may be adopted in a civil proceeding:

• The claim’s inscription over a defendant’s asset subject to registry or the seizure of other types of assets, whenever the claim refers to the property or other property right over said assets. Should the first instance ruling favour the claimant, it can request the seizure of any type of asset.
• The claim’s inscription over a defendant’s assets subject to registry, whenever the claim is directed towards the payment of damages based on a breach of contract or tort. Should the first instance ruling favour the claimant, it can request the seizure of said assets, as well as any other assets informed by the claimant.
• Any other measure that the court finds reasonable towards obtaining the protection of the rights subject to the proceeding, avoid their infraction, or avoid the consequences of such infraction, prevent damages, cease the present damages, and secure the claim’s effectiveness. In this case, the court may modulate the measure and order a measure less demanding or different from the one requested.

Whenever a Colombian public entity is involved, the applicable regulation for emergency or interim relief is section 229 of the Code of Administrative Procedure and Administrative Disputes, which has a similar scope to the said protections.

21. What must a petitioner show to obtain interim relief?

Colombia

Section 590 of the General Code of Procedure establishes that, for a claimant to obtain any interim measure in a civil proceeding, it must constitute a guarantee (security, deposit or bond). In principle, the guarantee’s amount corresponds to 20 per cent of the estimated claim, unless otherwise provided by the court.

Additionally, for a court to issue an interim relief not expressly regulated in sections (a) and (b) of article 590 of the General Code of Procedure, the requesting party must prove:

• the parties’ standing within the proceeding;
• the existence of a threat or harm against the rights subject to the proceeding;
• the appearance of merits of the interested party’s case; and
• the measure’s necessity, effectiveness and proportionality.

22. What types of decisions (other than interim relief) may a court render in civil matters?

Colombia

Section 278 of the General Code of Procedure provides for two types of decisions: (i) rulings or judgments (sentencias), which are the decisions by means of which a court adjudicates the dispute. There may only be one ruling in every instance of a proceeding, which may be subject to clarifications and additions by the court that issued it; and (ii) writs (autos), which are any other decisions taken by a court during a proceeding.

23. At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?

Colombia

Sections 278 of the General Code of Procedure provides that a court may issue its decision in any moment of the process, in two alternatives: (i) through the final ruling issued after all the stages of the proceeding are conducted; or (ii) through an anticipated ruling, which can be issued when the parties jointly request it, when the court does not have to gather evidence within the proceeding, or when the court determines that any of the following circumstances were proven: res judicata, a settlement, a statute of limitations, and the absence of standing of any of the parties.

Colombian civil law does not provide for motions to dismiss or summary judgments.

24. Under which circumstances will a default judgment be rendered?

Colombia

Colombian civil law does not provide for default judgments.

25. How long does it typically take a court of first instance to render a decision?

Colombia

Between three and five years.

26. How can third parties become involved in proceedings?

Colombia

Articles 60 to 72 of the General Code of Procedure provide for the mechanisms by means of which other parties or third parties may become involved in a civil proceeding.

The joinder of other parties may occur whenever:

• a court fails to summon all the persons required by the Law to issue a ruling on the merits, it may order said summon, by request of any party or ex officio, before the first instance ruling;
• a third person considers that it has a better right over an asset subject to a civil proceeding, it may intervene in said proceeding in order for the court to rule over its right;
• a party summons a person that has a contractual or legal right to indemnify or pay the amounts which could result from the court’s ruling;
• a person is sued as the tenant of an asset, but proves that it is not the true tenant and indicates the correct person that shall act as the defendant; or
• whenever a party is succeeded by another person during the proceeding.

Third parties may intervene in a civil proceeding under two alternatives: (i) as contributor to the case of any of the parties, in which it may perform any action that does not go against the corresponding party’s case; and (ii) in cases in which the court summons a third party because it considers that the parties in the proceeding are colluding or acting against said third party.

27. Describe the rules of fact-finding in your jurisdiction.

Colombia

Article 167 of the General Code of Procedure provides that, in principle, each party has the burden to prove the facts upon which their respective case is based. Nevertheless, this provision grants the court the power to distribute this burden between the parties, in consideration of each party’s position towards the facts of the dispute. Through this provision, a court may order a party to prove facts that, in principle, were the other party’s burden.

28. Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?

Colombia

Section 169 of the General Code of Procedure provides that evidence in any civil proceeding shall be gathered: (i) based on the parties’ initiative and within the opportunities set forth in that same code; or (ii) ex officio, in any moment prior to the final ruling. For the latter, civil courts in Colombia have ample and discretional powers to order the gathering of any evidence it deems necessary to clarify the facts of the dispute. The only limit to this power is the gathering of ex officio testimonies, which may only be ordered by a court whenever the name of a prospective witness is mentioned in other pieces of evidence or in the parties’ pleadings.

29. Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?

Colombia

Sections 265 to 269 of the General Code of Procedure establish the procedure for purposes of document production. As a general rule, a party may request that the other party discloses any documents deemed as material, pertinent, and relevant for its ruling, regardless of the fact that they may harm the interests of the disclosing party. The opposing party may object to the disclosure. Nevertheless, if the court denies the objection and the disclosing party fails to disclose the documents, the court shall consider as true the facts the party that requested the disclosure sought to prove with the said documents.

Additionally, section 169 of the General Code of Procedure grants a court the power to order ex officio, the gathering of the evidence it considers appropriate to clarify the facts of the dispute. This power could extend to the disclosure of documents by any party, regardless of the fact that they could be harmful to the own party’s case.

30. Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?

Colombia

Witness statements in civil proceedings are divided into three categories:

• witnesses of facts, who are persons different from the parties that may provide testimony about the facts of the dispute over which they have recollection. Their testimony is usually gathered in a hearing before the court and with all parties present. Each party has the right to examine the witness in two alternating rounds of questions, and the court has the right to ask any question it deems necessary at any point in the hearing.
• party witnesses, comprising the parties and their representatives, which may provide testimony about the facts of the dispute over which they have or should have recollection and, if they affirm or deny a fact that is contrary to their respective party’s interests, their testimony shall constitute a confession. This testimony is gathered: (i) through a 20-question interrogation by the opposing party in which the other party may not ask questions and the court may ask the questions it deems necessary; or (ii) through a party declaration conducted under the same rules as for a witness of facts.
• expert witnesses, who are independent persons with technical, scientific or artistic knowledge, that provide written and/or oral testimony about facts of the disputes that require said knowledge. Their testimony is gathered in two phases: first, the expert provides a report that can be controverted by the opposing party (in the case of a party-appointed expert) or by both parties (in the case of a court-appointed expert), through another report or in a hearing. Second, the expert is summoned to a hearing where they shall be interrogated about their report, under the same rules as a witness of fact.

Witnesses cannot be coached or instructed to provide answers during their testimony, and their testimony shall be spontaneous. Nevertheless, the parties may meet with their prospective witnesses, to indicate to them the matter of the dispute, the procedural regulation of their testimony, and the matters over which the testimony shall be performed.

31. Who appoints expert witnesses? What is the role of experts?

Colombia

As established in sections 226 to 235 of the General Code of Procedure, expert witnesses are independent persons with technical, scientific or artistic knowledge, who provide written or oral testimony about facts of the disputes that require said knowledge. Expert witnesses may be party-appointed (sections 227 to 229 of the General Code of Procedure) or court-appointed (sections 230 to 231 of the General Code of Procedure).

32. Can parties to proceedings (or a party's directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party's failure to testify or act as a witness?

Colombia

Sections 191 to 205 of the General Code of Procedure provide that the parties and their representatives may act as witnesses during the proceeding and, as such, provide testimony about the facts of the dispute over which they have or should have recollection. If a party witness affirms or denies a fact that is contrary to their respective party’s interests, their testimony shall constitute a confession. This testimony is gathered through a 20-question interrogation by the opposing party in which the other party may not ask questions and the court may ask the questions it deems necessary; or through a party declaration conducted under the same rules as for a witness of facts.

33. How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?

Colombia

Article 177 of the General Code of Procedure provide that foreign law is a fact in civil proceedings in Colombia and, therefore, must be proven. This proof may be provided by the interested party, though three alternatives:

• through the submission of a copy of the foreign law issued by the competent authority of the applicable foreign country, by said country’s consul in Colombia, or by Colombia’s consul in said country;
• through the submission of an expert report on the applicable foreign law, issued by a person or institution versed in the applicable foreign law, who does not have to be a lawyer; or
• in cases of non-written laws, through the testimony of two or more lawyers of the applicable foreign country or through the expert report explained above.

As for foreign documents, article 251 of the General Code of Procedure establishes that they shall only be taken as evidence whenever they are gathered along with an official Spanish translation made by Colombia’s Foreign Office, by an official translator, or by a court-appointed translator. In cases of official documents, they shall be duly apostilled or, in the absence of such instrument, duly authenticated by the consul or diplomatic agent of Colombia in the corresponding country (in absence of such representative, by the consul or diplomatic agent of a friendly nation).

34. What standard of proof applies in civil litigation? Are there different standards for different issues?

Colombia

The General Code of Procedure does not establish a particular standard of proof for civil proceedings. On the contrary, article 176 of the General Code of Procedure establishes that a civil court shall analyse the evidence gathered during the proceeding as a whole and under the rules of a sound critical perspective (sana crítica). The court shall always indicate the merits that it attributed to every piece of evidence.

The Civil Chamber of Colombia’s Supreme Court (Ruling No. 20060012201) established – in an obiter dictum – that the rules of the standard of evidence (preponderance of evidence or reasonable doubt), are based on a quantitative standard of proof, while the rules established in the General Code of Procedure are based on a qualitative standard of proof. Based on this distinction, the Supreme Court defined Colombia’s standard of proof, as follows:

Our system of sound criticism (sana crítica) is based on a liberty of means and in a qualitative analysis, while the system of preponderance of evidence or the standards of probably depend on a quantitative margin in the degrees of conviction, by asking: How much evidence do I need, or which evidentiary threshold is sufficient to prove a fact in a trial.

35. What are the possibilities to appeal a judicial decision? How many levels of appeal are there?

Colombia

Section 9 of the General Code of Procedure established that all civil proceedings shall have two instances, unless the law establishes that a specific type of proceeding shall have a single instance. In any two-instance proceeding, the party or parties that were disfavoured by the first instance ruling may appeal it by indicating the specific grounds of their challenge (sections 320 to 330 of the General Code of Procedure). If only one of the parties appeals, the second instance court shall only analyse the first instance ruling for the specific challenges presented by the party. If both parties appeal, the second instance court is not limited to their pleadings when ruling over the appeal.

Additionally, section 321 of the General Code of Procedure grants the parties of a two-instance civil proceeding to appeal certain writs that, in general, entail transcendental procedural decisions or anticipately terminate the proceeding (for example, writs that reject a claim, deny an interim measure, or deny the joinder of a third party).

Colombian civil procedural law does not establish the possibility of a third instance. Rather, it establishes a recurso de casación remedy before the Civil Chamber of the Supreme Court of Justice as an extraordinary recourse against a second instance ruling issued by a Superior District Tribunal (articles 331 to 351 of the General Code of Procedure). If this remedy prospers, the Supreme Court shall revoke the second instance ruling and act as second instance court.

36. What aspects of a lower court's decisions will an appeals court review and by what standards?

Colombia

Articles 320 and 328 of the General Code of Procedure establish that the party or parties disfavoured by the first instance ruling may appeal it by indicating the specific grounds of their challenge (sections 320 to 330 of the General Code of Procedure). This ground may refer to any aspect related to the adjudicated matter. If only one of the parties appeals, the second instance court shall only analyse the first instance ruling for the specific challenges presented by the party. If both parties appeal, the second instance court is not limited to their pleadings when ruling over the appeal.

37. How long does it usually take to obtain an appellate decision?

Colombia

Between one and three years.

38. In which conditions does your domestic arbitration law apply? Does it apply equally to purely domestic and international arbitrations, and to commercial and investor-state arbitrations?

Colombia

Colombia adopted a dualistic approach towards arbitration through law 1563 of 2012, providing separate legal regimes for national arbitration (section I) and international arbitration (section III). The Chapter on domestic Arbitration of the Arbitration Statute unifies and amends the rules applicable to domestic arbitration, most of which are based on traditional institutions of Colombian procedural law rooted in the General Code of Procedure. The Chapter on international arbitration incorporates the UNCITRAL Model Law on International Commercial Arbitration, including the amendments approved in 2006. However, some minor changes were made to adapt the Model Law to Colombian legal tradition and to introduce certain non-Model Law provisions from the arbitration legislation adopted in jurisdictions such as France and Belgium.

Article 62 of Law 1563 of 2012 establishes the following objective conditions under which an arbitration shall be considered and international arbitration:

• the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different states; or
• the place where a substantive part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected is situated outside the state in which the parties have their places of business; or
• the dispute submitted to arbitration affects the interests of international commerce.

Any arbitration that does not fall under the conditions contained in section 62 of Law 1563 of 2012, shall be considered a domestic arbitration.

As for investor-state arbitrations, its regulation is contained in the corresponding treaties executed between Colombia and another state that establish or regulate this dispute resolution mechanism. The judicial defence of the Republic of Colombia in investor-state arbitrations is headed by the National Agency for Legal Defence of the State.

39. Give an overview of instances in which state courts come into play in domestic and international arbitration proceedings.

Colombia

For domestic arbitrations, civil courts shall only intervene within an arbitration in the events established in section I of Law 1563 of 2012, which, in general, comprise:

• the selection of the arbitrators whenever the parties did not reach agreement and did not delegate this selection on another person or institution;
• the assistance in the enactment of interim measures issued by an arbitration tribunal, whenever the tribunal commissions a court to do so;
• the ruling of a request for annulment or extraordinary review of an arbitration award; and
• the collection of the rulings taken in an arbitration award.

For international arbitrations, article 67 of Law 1563 of 2012 provides that civil courts shall only intervene within an arbitration in the events established in section III of Law 1563 of as follows:

• issue injunctions before or during an international arbitration (sections 71 and 90 of Law 1563 of 2012);
• rule on the selection or replacement of the arbitrators whenever the parties did not reach agreement and did not delegate this selection on another person or institution (sections 73, 74, and 77 of Law 1563 of 2012);
• enact the interim measures issued by an arbitration tribunal (section 88 of Law 1563 of 2012);
• assist the arbitration tribunal in the gathering of evidence (article 100 of Law 1563 of 2012);
• rule over the request for annulment of an award (article 107 of Law 1563 of 2012); and
• rule over the request for recognition and enforcement of an award (article 111 of Law 1563 of 2012).

40. Describe the rules governing recognition and enforcement of arbitral awards in your jurisdiction. To what extent do domestic courts review arbitral awards on the substance?

Colombia

Sections 111 to 116 of Law 1563 of 2012 establish that any award issued by an international arbitration tribunal seated outside Colombia shall be subject to recognition by the Civil Chamber of Colombia’s Supreme Court of Justice – provided there is no state entity involved. This recognition may only be denied on the grounds established in section 112 of Law 1563 of 2012, as follows:

By the request of the opposing party, whenever:

• at the time of entering into the arbitration agreement, the opposing party was under some incapacity; or the arbitration agreement is not valid under the law to which the parties have subjected it or, in lack of agreement, under the law of the country in which the award was issued; 
• the opposing party was not given proper notice of the appointment of an arbitrator or the start of the arbitration, or was otherwise unable to exercise its rights; 
• the award deals with a dispute not contemplated in the arbitration agreement or contains rulings that exceed the terms of the arbitration agreement (if the exceeding matters can be separated from the rest of the ruling, the judicial authority may only recognise the latter);
• the composition of the arbitral tribunal or the arbitration procedure was not in accordance with the agreement of the parties or, in lack of agreement, to the law of the country in which the arbitration was conducted or performed; or
• the award is not binding to the parties or was set aside or suspended by a judicial authority of the seat of the arbitration.

Ex officio, whenever: under Colombian law, the object of the controversy is not subject to arbitration; or the recognition or the enforcement of the award would be contrary to Colombia’s international public policy.

41. Are class actions available?

Colombia

Class actions are available under Colombian Law, as provided under Law 472 of 1998. Article 3 of the said law defines class actions as those commenced by a plural number or a group of persons with a uniform criterion towards a cause of action, to exclusively obtain the payment of the damages derived from said cause of action. This type of action must be filed by at least 20 persons within two years of the date on which the damage was caused or the cause of the damage ceased (article 46 of Law 472 of 1998).

As established in section 48 of Law 472 of 1998, the plaintiffs, once accepted as a group by the appointed court, shall also represent other persons who could have been affected by the facts that constitute the cause of action, without the need to provide specific powers of attorney for said persons or to commence individual actions for the payment of said damages. These persons shall have various opportunities within the proceeding to request their exclusion from the group (section 56 of Law 472 of 1998). If they do not request said exclusion, the ruling shall bind them, and they may request the court to pay them the damages granted to them in said ruling (section 66 of Law 472 of 1998).

42. Are derivative actions available?

Colombia

Colombian law does not establish the possibility to initiate derivative actions in proceedings related to business operations and transactions. This type of proceeding is exclusively provided for the protection or adjudication of a person’s patrimony in successions or liquidation proceedings different from bankruptcy proceedings.

43. Are fast-track proceedings available?

Colombia

No, Colombian law does not establish fast track proceedings that may be implemented as an alternative to the proceedings set forth in the General Code of Procedure. Even though some of these proceedings may be more expedite than others, once the appointed court establishes the type of proceedings under which a civil case shall be conducted, it cannot be fast-tracked though a different type of proceeding.

44. Is it possible to conduct proceedings in a foreign language?

Colombia

No. Section 104 of the General Code of Procedure expressly provides that any proceeding must be conducted in Spanish. Translators and interpreters are required for documents or declarations in a foreign language.

45. What legal effects does a judgment have?

Colombia

Civil judgments, under article 303 of the General Code of Procedure, have the effect of res judicata. This effect extends to the judgment’s subject matter, causes that generated the prior proceeding, and parties to the given proceeding.

Additionally, whenever a judgment orders the performance of an obligation or an order towards a public authority, the judgment serves as a collectible instrument that may be directly used by the party to collect the pending amounts or for a public authority to perform a certain action (for example, modify the property over real state or any other asset subject to a public registry).

46. What are the procedures and options for enforcing a domestic judgment?

Colombia

Sections 422 to 472 of the General Code of Procedure establish a collection proceeding for the payment of collectible instruments, such as judicial rulings. Within this proceeding, the plaintiff may request the attachment and seizure of the defendant’s assets, and the defendant’s defences towards the collection are limited to matters related to the judgment’s payment.

This collection proceeding may vary depending on the existence of special guarantees (such as mortgages or movable asset guarantees), given by the debtor to the creditor, or the existence of other collection proceedings against the debtor.

47. Under what circumstances will a foreign judgment be enforced in your jurisdiction?

Colombia

Section 605 of the General Code of Procedure provides that the rulings and any other decision issued by a foreign authority shall have the effects granted by a special treaty between Colombia and the corresponding country, or the effect given to Colombian judgments in the corresponding country.

For any foreign judgment to have effects in Colombia, it shall be recognised by the Supreme Court of Justice through an exequatur proceeding, regulated in articles 606 and 607 of the General Code of Procedure. Article 606 of the General Code of Procedure provides that a foreign judgment shall comply with the following grounds for purposes of its enforcement:

• the judgment shall not refer to in rem rights over assets located in the Colombian territory at the moment of the foreign proceeding’s commencement;
• the judgment does not violate Colombia’s public policy (the Colombian Supreme Court has deemed that this provision refers to Colombia’s international public policy);
• the judgment must be final and binding in accordance with the law under which it was proffered, and is filed as a duly legalised copy;
• the subject matter of the dispute does not fall within the exclusive jurisdiction of Colombian courts;
• there must be no existing proceeding or finalised ruling in Colombia over the same subject matter;
• in the event the judgment was issued in an adversarial proceeding, the defendant was duly served and exercised its right of defence, according to the law in which the ruling was issued. This condition is deemed as proven with the judgment’s final and binding nature; and
• Colombia’s Supreme Court grants recognition of the judgment through the exequatur proceeding.

48. Will the successful party's costs be borne by the opponent?

Colombia

Yes. Article 365(1) of the General Code of Procedure establishes that the costs incurred by the successful party and proven within the proceeding, shall be borne by its opponent, under the following circumstances: (i) when a party fully prevails on the merits; (ii) when a party prevails in an appeal or an extraordinary remedy; or (iii) when a party does not prevail in a special proceeding, preliminary objections, a request for annulment, or a request for poverty protection.

Section 361 of the General Code of Procedure established that the payment of costs shall comprise the totality of the expenses and disbursements made during the proceeding, as well as the legal fees incurred by a party.

49. May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?

Colombia

Section 151 of the General Code of Procedure establishes the right for any party to request poverty protection, whenever it can prove that it is not able to pay the proceeding’s costs without affecting its own subsistence. Should the court grant this protection, the beneficiary shall not be bound to pay warranties, expenses, fees or any other expense within the proceedings, nor be liable for the payment of costs in the event it fails to prevail in the proceeding (section 154 of the General Code of Procedure).

50. Are contingency fee arrangements permissible? Are they commonly used?

Colombia

Contingency fees are permitted under Colombian law and regulated through Order No. 20 of 1992, issued by the Ministry of Justice. In general, contingency fees can be freely agreed between a lawyer and his or her client, so long as said fee does not exceed 50 per cent of the client’s economic interest in the proceeding. Failure to comply with this limit could entail disciplinary liability by the corresponding lawyer.

51. Is third-party funding allowed in your jurisdiction?

Colombia

Third-party funding is permitted, yet not regulated, under Colombian law. A third party may fund a proceeding through private arrangements with the corresponding party or directly purchase the economic rights of said party within a civil proceeding (articles 1969 to 1972 of the Civil Code).

52. Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?

Colombia

In general, fee arrangements may be freely agreed between a lawyer and his or her client, so long as they are agreed following an equitable, justified and proportional criteria. Professional associations, such as the National Association of Lawyers, have devolved parameters and estimated fees that can be used as guidelines for the specific arrangement between a lawyer and a client.