COLOMBIA Law and Practice Contributed by: Rebeca Herrera Diaz, Rebeca Herrera Abogados
that are to be executed in Colombia shall be governed by the provisions of this Code.” This provision implies that insurance contracts con- cluded outside Colombia but intended to be per- formed within its territory are subject to Colombian commercial law. Therefore, even if the parties choose a foreign law to govern their contract, Colombian law may still apply if the contract is executed in Colombia. It is important to note that, while parties to an insur- ance contract may agree on the applicable law, such agreements must not contravene Colombian public policy. Therefore, specific mandatory provisions of Colombian law may apply regardless of the chosen law, particularly when the contract is to be performed in Colombia. If the contract is entered into in Colombia and the par- ties do not agree on a specific applicable law, Colom- bian law must also apply, as Colombia is a signatory to the Montevideo Convention on International Private Contracts of 1889. Article 36 of this Convention stipu- lates that the law of the country where the insurance contract is concluded is the applicable law. Colombian commercial law does not prohibit parties in an international contract from agreeing on a spe- cific jurisdiction for resolving disputes, provided such agreements do not contravene public policy regula- tions. This also applies to insurance contracts. Law 1328 of 2009 does not prohibit insurance contracts involving Colombian residents and foreign insurers from specifying a jurisdiction other than Colombia, provided that such agreements do not affect public order rights. Parties to a reinsurance contract can also agree on the applicable law. Colombian regulation does not nec- essarily require local insurance companies to enter into reinsurance agreements with foreign reinsurers, including the use of Colombian law as the applicable law to this contract. Market practices usually provide that Colombian law applies when the cedent is in Colombia. Reinsurance contracts enjoy greater flexibility regard- ing jurisdiction and applicable law as they usually
involve sophisticated commercial parties. They also commonly include an arbitration clause. These con- tracts commonly allow the parties to agree on juris- diction and applicable law. They often opt for foreign jurisdictions, such as New York or London. Still, in recent years, since Colombia enacted Law 1563 of 2012, which established a comprehensive legal framework for international arbitration, it has become common for reinsurance agreements to designate Colombia as the jurisdiction for dispute resolution. 9.3 Litigation Process In Colombia, the General Proceedings Code ( Código General del Proceso , CGP) outlines the structure of the verbal process ( proceso verbal ) in civil proceed- ings, aiming for efficiency and prompt resolution. This is the most common method for resolving conflicts in commercial contracts. The critical stages of this process are: • Filing and Admission of the Complaint: The plaintiff submits a complaint that meets the requirements specified in Articles 82 and following of the CGP. Upon admission, the court serves the defendant and grants a 20-day response period. • Initial Hearing: Scheduled after the response peri- od, this hearing involves: (i) conciliation attempts, in which the judge encourages parties to reach an amicable settlement; (ii) questioning of the par- ties, during which the judge may ask the parties to clarify specific facts; (iii) defining the subject of the dispute; and (iv) ordering the collection of evi- dence. If no further evidence is needed, the judge may issue a judgment during this hearing. • Evidence Collection: If additional evidence is required, the judge schedules an evidentiary hear- ing to gather testimonies, expert opinions, and other pertinent evidence. • Final Hearing and Judgment: After evidence collec- tion, a final hearing is held where (i) parties present closing arguments; (ii) the judge delivers the final judgment; and (iii) the dispute is resolved. This streamlined verbal process emphasises oral- ity, concentration, and immediacy, aiming to resolve disputes efficiently. Specific procedures may vary depending on the nature and complexity of the case.
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