COLOMBIA Law and Practice Contributed by: Juan Mendoza, Manuela Hernández Contreras, Andres Parra and Daniel Munera, DRET
requires. Nationality itself is not a bar, and in interna - tional arbitration, arbitrators are not even required to be qualified lawyers. Nevertheless, a comparison here between domestic and international arbitration remains worth noting. Within the structure of international arbitration, the “party arbitrator” – an arbitrator directly appointed by one of the parties, though held to the same stand - ards of independence and impartiality as any other – is a recognised figure, and parties are free to appoint someone outside the administering centre’s own ros - ter. Domestic arbitration does not offer that same free - dom: arbitrators generally must be chosen from the administering centre’s official list. 4.2 Default Procedures If the parties cannot agree on how to select arbitrators, Article 73 of Law 1563 supplies a fallback procedure. For a sole arbitrator, if the parties reach no agreement within 30 days, the competent judicial authority – in practice, a civil circuit judge – makes the appointment. For a three-member tribunal, each side appoints one arbitrator, and those two arbitrators appoint the third – again with judicial intervention available if they cannot agree within 30 days. That judicial safety net is worth a note of caution. The judges empowered to make these appointments are ordinary civil circuit judges, not a specialised arbitra - tion bench. They handle a broad docket of unrelated civil matters and are not necessarily versed in arbi - tration practice – let alone the particular demands of international arbitration. Parties who end up relying on this fallback should not assume the appointing judge brings any specialised expertise to the task. Multiparty cases follow the same logic, scaled up. Where there are multiple claimants or multiple respondents, each side must act jointly to appoint its arbitrator. If a group cannot agree internally, any party may ask the judicial authority to make the appoint - ment instead. 4.3 Court Intervention Courts can step into the selection process, but only in three defined situations:
• A party fails to follow the agreed procedure. • The parties or the arbitrators cannot reach agree - ment. • A third party or institution tasked with appointing an arbitrator fails to do so. When a court does make an appointment, it must ensure the appointee’s independence and impartial - ity, and – for a sole arbitrator or a third, tie-breaking arbitrator – must consider the value of appointing someone of a different nationality than the parties. Judicial decisions on appointment are final and can - not be appealed. In particular, independence and impartiality raise a further complication internationally: Colombia has no equivalent statutory standard for international arbitra - tion. A judge would likely fall back on the criteria used for domestic litigation – an awkward fit for interna - tional arbitration – and, in our view, is unlikely to look to soft-law instruments such as the IBA Guidelines on Conflicts of Interest in International Arbitration to fill the gap. 4.4 Challenge and Removal of Arbitrators An arbitrator can be challenged if circumstances raise justified doubts about their impartiality or independ - ence, or if they lack qualifications the parties specifi - cally agreed on. In domestic arbitration, the grounds for challenge track those applicable to a Colombian judge under the Civil Procedure Code or the General Code of Procedure. In international arbitration, how - ever, the only available ground is justified doubt as to the arbitrator’s impartiality or independence. Since each party may appoint its own arbitrator in international arbitration, it falls on that party’s own due diligence to evaluate the appointee’s impartiality and independence before making the appointment. A party may later challenge an arbitrator it appointed itself only if the grounds for the challenge came to light after the appointment was made. Filing a challenge suspends the arbitration while it is being decided. If the challenge fails, the party that raised it cannot try again through a separate route. Its only remaining option is to raise the same point again later, as a ground for annulling the final award. This is
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