COLOMBIA Law and Practice Contributed by: Juan Mendoza, Manuela Hernández Contreras, Andres Parra and Daniel Munera, DRET
3.3 National Courts’ Approach As a rule, Colombian courts apply whatever law the parties chose to govern the arbitration agreement itself. Where the parties made no such choice, courts fall back on Colombian law as the law of the seat, under Article 108 (1)(a) of Law 1563. On enforcement, the track record is consistently favourable regarding recognition. Both the Supreme Court and the Council of State have consistently given full effect to arbitration clauses, declining their own jurisdiction whenever a valid arbitration agree - ment exists. The Supreme Court has built a settled pro-arbitration doctrine that favours the validity of the agreement and confines annulment strictly to proce - dural defects – not an opportunity to revisit the merits of the underlying dispute. Moreover, Colombian courts have shown consistent respect for the parties’ choice to arbitrate. A handful of decisions have tried to disregard an arbitration clause or the arbitration itself, but these remain the exception rather than the rule. 3.4 Validity Colombia expressly recognises the principle of sepa - rability: an arbitration clause is treated as independ - ent from the rest of the contract that contains it, so a defect that voids or invalidates the main contract does not automatically take the arbitration clause down with it. That separation matters in practice. It means a tribu - nal can rule on whether the underlying contract even exists, or is valid, without that question first having to be resolved by a court – a position the Council of State has confirmed as well as the Supreme Court.
ment, particularly in the context of third-party joinder claims (akin to an impleader). For that reason, a party relying on an arbitration agreement should always raise it as a preliminary objection ( excepción previa ) for lack of judicial jurisdiction, rather than assume the judge will apply the referral automatically. Objective International Criteria For international arbitration specifically, enforceability carries one further condition: the dispute must also meet the objective internationality criteria under Arti - cle 62, discussed in 1.1 Prevalence of Arbitration . An otherwise valid arbitration agreement covering a purely domestic relationship will still be arbitrated – just under the domestic, rather than the international, regime. In our view, the underlying logic of Colombian arbitration law should treat every arbitration as pre - sumptively international, unless it can be shown that none of Article 62’s three criteria are met. In practice, however, the system does not appear to function that way: arbitrations default to the domestic regime, and internationality has to be affirmatively established – the reverse of what the statute’s own logic would sug - gest. 3.2 Arbitrability Law 1563 does not list which subjects are arbitrable; it works by exclusion instead. A dispute is non-arbi - trable only if Colombian law expressly says its sub - ject matter cannot be submitted to arbitration. That is a narrow test, but a consequential one: it can be raised as a ground for annulment even if neither party objected during the arbitration itself. Colombian courts interpret those exclusions narrowly and leanly, as a general matter of practice, towards allowing arbitration rather than restricting it. The Con - stitutional Court has confirmed that arbitration is avail - able for disputes over disposable, patrimonial rights: the kind of rights a party could freely give up in a settlement. Matters falling outside that space include: • Public order matters. • Non-waivable rights, such as family, labour or con - sumer protection. • Functions that belong exclusively to the state.
4. The Arbitral Tribunal 4.1 Limits on Selection
Party autonomy in selecting arbitrators is broad, but it runs up against two firm limits. First, the tribunal must always have an odd number of arbitrators, whatever number the parties agree on. Second, every arbitrator appointed – regardless of nationality – must meet the standards of independence and impartiality the law
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