COLOMBIA Law and Practice Contributed by: Juan Mendoza, Manuela Hernández Contreras, Andres Parra and Daniel Munera, DRET
Colombia as a Seat, Not Only an Enforcement Forum Colombia also increasingly functions as a seat in its own right: the Centre for Arbitration and Conciliation of the Bogotá Chamber of Commerce (CAC-CCB) can administer proceedings seated in Bogotá under the international regime, giving parties with a real cross-border connection a local seat without sacri - ficing international procedural standards. Recognition and enforcement of foreign-seated awards remain an active function of Colombian courts, but it is a sec - ondary use of the system, not the primary one. 1.2 Key Industries Infrastructure and public-private partnership con - tracts are the clearest example of sustained inter - national arbitration activity in Colombia. Colombia’s National Infrastructure Agency (ANI) routinely writes international arbitration into concession agreements with foreign partners. That practice has produced the country’s deepest body of arbitration experience. Investment arbitration has developed real sophistica - tion alongside it: Colombia has defended, and even counterclaimed in, high-value disputes. Three sectors, in particular, account for most of this activity: • Infrastructure and road concessions, structured as public-private partnerships, remain the best-docu - mented example – concession contracts routinely include international arbitration clauses under Arti - cle 62 of Law 1563, with active cases administered by institutions such as the International Chamber of Commerce (ICC) and International Centre for Dispute Resolution (ICDR). • Energy and natural resources, where gas and hydrocarbons disputes involving foreign-owned corporate groups have become increasingly com - mon. • Construction and engineering, where international contracts for civil work with foreign contractors regularly end up before centres such as the ICC and ICDR. The common thread across all three is the presence of a public entity – a road agency, a mining regulator, a hydrocarbons authority – contracting or licensing
alongside a foreign partner on a large-scale project. That combination is what most reliably triggers the international arbitration regime, more than any single industry’s characteristics on its own. 1.3 Arbitration Institutions No new arbitral institution has been established in Colombia in the past 12 months. The institutional landscape instead rests on a small group of centres, each associated with a different type of dispute. Domestic Institution: CAC-CCB Domestically, the CAC-CCB is Colombia’s leading arbitral institution by a clear margin. It can administer international arbitrations seated in Colombia under Law 1563, and its rules, case management and ros - ter of arbitrators have made it the default choice for parties with a genuine Colombian connection. International Institutions Beyond Colombia’s borders, four institutions account for most of the country’s international arbitration activ - ity, each tied to a particular type of dispute: • The International Centre for Settlement of Invest - ment Disputes (ICSID) (Washington) administers investor-state disputes brought under the ICSID Convention or a bilateral investment treaty. • The ICDR, the international branch of the Ameri - can Arbitration Association, is the institution most frequently written into infrastructure and public- private partnership contracts. • The ICC (Paris) rules are widely agreed in interna - tional commercial contracts involving Colombian parties, particularly where at least one party is based outside the region. • UNCITRAL ad hoc arbitration appears as an avail - able option in several of Colombia’s investment treaties, offering a forum without a fixed adminis - tering institution. Which Institution Applies, and Why Which institution a given contract uses tends to fol - low the nature of the relationship rather than personal preference: • State contracts favour the ICDR or CAC-CCB. • Investment treaties point to ICSID or UNCITRAL.
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