COLOMBIA Law and Practice Contributed by: Juan Mendoza, Manuela Hernández Contreras, Andres Parra and Daniel Munera, DRET
5.2 Circumstances for Court Intervention Judicial intervention regarding arbitral jurisdiction is residual – a direct consequence of the competence- competence principle: courts step in only after the tribunal has already had the chance to rule on its own jurisdiction. Courts can address a tribunal’s jurisdic - tion at two points: when ruling on a preliminary objec - tion raised because a party sued in a court despite an arbitration clause, or through an annulment action brought against the award itself. If a tribunal dismisses a jurisdiction objection as a preliminary matter and continues the arbitration, that ruling can only be challenged later, through annulment of the final award. If a tribunal instead declares itself incompetent, or accepts that it exceeded its mandate, either party may challenge that decision by annulment within the following month. Colombian courts show a clear, consistent deference towards arbitral jurisdiction. Both the Supreme Court and the Council of State have built a non-intervention doctrine. That deference is a strength of the system, though it does not extend to co-ordinating between competing tribunals. 5.3 Timing of Challenge Colombian courts have embraced competence-com - petence fully, and neither they nor anyone else may intervene in a tribunal’s jurisdiction before then – with one exception already noted: the parallelism between domestic and international arbitration, where two tri - bunals can genuinely reach competing decisions over the same facts. In short: wait until annulment. Colombian law follows a “use it or lose it” rule for jurisdictional objections. If a party believes the tribunal lacks jurisdiction – because the arbitration agreement is invalid, does not exist, or does not cover the dispute – it must say so no later than its first response to the arbitration claim. Staying silent at that stage is treated as giving up the objection; a party cannot save it as a strategic card to play later, once it has seen how the case is going. A related but separate objection – that the tribunal has exceeded its mandate by deciding something outside the arbitration agreement – follows a different clock.
the same gap that was noted in 4.3 Court Interven- tion resurfacing, since an annulment judge will likely apply domestic criteria rather than benchmarks like the IBA Guidelines. 4.5 Arbitrator Requirements Law 1563 imposes a proactive, continuing duty of dis - closure both on the parties (if they come to know new information) and on the arbitrators, who must reveal any relevant information. From the moment a person is first approached about possible appointment as an arbitrator, and throughout the proceedings that fol - low, they must disclose any circumstance that could raise doubts about their impartiality or independence. The Constitutional Court has confirmed that this duty has constitutional standing in Colombia and aligns with the international UNCITRAL standard. The same gap noted in 4.3 Court Intervention persists here: the standard remains generic, without express reference to soft-law instruments such as the IBA Guidelines. The competence-competence principle is expressly enshrined in Article 79 of Law 1563: an arbitral tribunal is the only body competent to rule on its own jurisdic - tion, including any objection based on the arbitration agreement’s non-existence, invalidity or ineffective - ness. Colombian tribunals have applied this principle even to bifurcated proceedings that decide only the nature of the arbitration – domestic or international – before turning to the merits. A recent case involving paral - lel gas-supply arbitrations illustrates the point well: an international tribunal ruled, in a standalone partial award, that certain contracts qualified as international, entirely independently of a separate domestic tribunal that had, in the meantime, asserted its own compe - tence over the same agreements. Colombian courts left both tribunals to resolve the question on their own terms – a healthy use of competence-competence, though also a live example of the still-unaddressed parallelism between domestic and international tribu - nals. 5. Jurisdiction 5.1 Challenges to Jurisdiction
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