COLOMBIA Law and Practice Contributed by: Juan Mendoza, Manuela Hernández Contreras, Andres Parra and Daniel Munera, DRET
6. Preliminary and Interim Relief 6.1 Types of Relief
own institutional arbitration rules provide for them. In domestic arbitration, an emergency arbitrator is per - mitted only within the enforcement arbitration track created by Law 2540 of 2025. In international arbitra - tion, the figure becomes available only where the par - ties adopt institutional rules that provide for it – those of the ICC or ICDR, most commonly. Colombia’s own institutional rules, including the CAC-CCB’s, do not include it. Colombian case law has not yet directly addressed whether an emergency arbitrator’s decision is enforceable in Colombia. The prevailing scholarly view treats it not as an award – emergency measures generally do not meet the New York Convention’s defi - nition of one – but as an interim measure under Article 88 of Law 1563, which is directly enforceable without any recognition proceeding, provided the emergency arbitrator acted under an agreed institutional rule and the measure otherwise meets Law 1563’s general requirements for tribunal-ordered interim relief. 6.3 Security for Costs Law 1563 does not create security for costs as a stan - dalone remedy, but a tribunal has two separate routes to order it in practice. It can treat the request as a form of interim relief under Article 80 – which, given the Third Section’s broad allowance for unnamed meas - ures, gives the tribunal a flexible basis to order it as necessary to preserve the effectiveness of the pro - ceedings or the eventual award. Alternatively, it can impose security as a condition on a party requesting interim relief or a preliminary order – something the tribunal can do either on its own initiative or at the other party’s request. International arbitration proceedings seated in Colom - bia are governed exclusively by the Third Section of Law 1563 – Colombia’s own procedural rules for domestic litigation play no role. Within that framework, party autonomy is the primary rule: parties can agree on their own procedure direct - ly or simply adopt an institutional set of rules – eg, those of the ICC, the ICDR, the LCIA, UNCITRAL or the CAC-CCB, among others. 7. Procedure 7.1 Governing Rules
Articles 80 and 81 of Law 1563 provide that an inter - national arbitral tribunal seated in Colombia has express authority to order interim relief, at either party’s request, at any point before the final award – unless the parties have agreed otherwise. The types of relief available cover the ground most parties actually need mid-dispute, namely: • Maintaining or restoring the status quo while the dispute is resolved. • Preventing present or imminent harm, or interfer - ence with the arbitration itself. • Preserving assets whose survival is necessary to eventually enforce the award. • Preserving evidence relevant to the case. These measures are binding and directly enforceable without any prior recognition proceeding, regardless of where they were issued – the Supreme Court has confirmed this applies equally to domestic and inter - national arbitration. A tribunal can also issue prelimi - nary, ex parte orders where advance notice to the other side would defeat the purpose of the measure. In either case, the tribunal may require the requesting party to post security and can order costs or damages against it if the measure is later proven unfounded. 6.2 Role of Courts Court-Ordered Interim Relief: Nominated Measures are Narrower Than They Look Courts play a supporting, not competing, role along - side the tribunal’s own powers. Any party can go to the civil circuit courts – or the administrative courts, if a public entity is involved – to request interim relief, either before or during arbitration, without that request being treated as a waiver of the arbitration agreement. Courts apply their own procedural rules when grant - ing this relief – the General Code of Procedure or the administrative procedure code, depending on the nature of the case – while adapting them to the spe - cific features of international arbitration. Emergency Arbitrators Emergency arbitrators are not an expressly named figure under Law 1563 – and none of Colombia’s
264 CHAMBERS.COM
Powered by FlippingBook