COLOMBIA Law and Practice Contributed by: Juan Mendoza, Manuela Hernández Contreras, Andres Parra and Daniel Munera, DRET
• Purely commercial cross-border deals gravitate towards the ICC. 1.4 National Courts Colombia does not have a dedicated international commercial court or a specialised arbitration bench. Instead, jurisdiction over arbitration-related matters is split between ordinary courts, according to two vari - ables: the type of dispute to resolve, and whether a Courts may appoint arbitrators, order interim meas - ures or enforce them. Jurisdiction depends on the parties involved: • Civil circuit courts, when all parties are private. • Administrative courts, when a public entity is a party. Annulment of an Award This is where domestic and international arbitration diverge. public entity is one of the parties. Judicial Support During Arbitration • Domestic arbitration : Annulment is heard by the rel - evant appellate court ( Tribunal Superior de Distrito Judicial ) for private parties, or by the correspond - ing administrative tribunal when a public entity is involved. • International arbitration : Annulment is elevated to the highest courts: the Supreme Court’s Civil Cassation Chamber, when all parties are private; or the Third Section of the Council of State, when a public entity is involved. This reflects a deliberate design choice: international awards receive greater judicial protection than their domestic counterparts. Recognition or Enforcement of a Foreign Award The same split applies – the Civil Cassation Chamber for private parties, the Council of State’s Third Section
of due process – which has reportedly occurred only once in international arbitration.
2. Governing Legislation 2.1 Governing Law
International arbitration in Colombia is governed by Law 1563. The International Arbitration Statute is composed of its Third Section (Articles 62 to 116). That section is directly based on the 1985 UNCI - TRAL Model Law, as revised in 2006 – a lineage both the Council of State and the Supreme Court have expressly acknowledged in their case law. The following are where the framework diverges from the Model Law: • Split judicial competence : When a Colombian public entity is a party, annulment and recognition or enforcement of the award fall before the Third Section of the Council of State, not the Supreme Court’s Civil Cassation Chamber, which handles those same functions for purely private disputes. The Model Law does not draw this distinction; Colombia’s dual court system does. • No automatic stay pending annulment : Filing an annulment action never suspends enforcement of an international award. On this point, Colom - bia’s international regime follows the Model Law approach. It is the domestic regime – derived not from the Model Law but from Decree 1818 of 1998 – that diverges: it lets a public entity request a stay, an option the international regime does not extend, and the Council of State has confirmed courts can - not create one by judicial interpretation. • A simplified path to recognition : Law 1563 dropped the requirement to attach a certified copy of the arbitration agreement to a recognition request – a more permissive standard than the New York Con - vention itself sets. The Supreme Court has applied a pro-recognition principle to resolve any resulting ambiguity in the applicant’s favours. • A narrower test for internationality : Under the New York Convention, parties can agree that a dispute will be treated as international. Law 1563 does not allow that: internationality turns entirely on objective criteria set out in Article 62 – principally,
when a public entity is involved. Constitutional Action (Tutela)
Colombia’s tutela action exceptionally allows courts to override an arbitral decision for a serious violation
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