COLOMBIA Law and Practice Contributed by: Juan Mendoza, Manuela Hernández Contreras, Andres Parra and Daniel Munera, DRET
Where Law 1563 and the parties’ own agreement both leave a gap, that gap is filled by the general principles underlying international arbitration itself – its interna - tional character, the need for uniform application, and good faith – rather than by Colombia’s ordinary civil procedure rules. 7.2 Procedural Steps Regarding steps required before arbitration can be commenced – multi-tier dispute resolution clauses requiring negotiation or mediation first – the answer differs by regime. In domestic arbitration, these clauses are largely unenforceable. Colombia’s procedural code expressly prohibits parties from contracting around it to create extra-legal admissibility requirements, and the Con - stitutional Court has confirmed that multi-tier clauses cannot be treated as a barrier to accessing justice. A domestic tribunal will not decline jurisdiction simply because a party skipped a contractual negotiation period; at most, non-compliance may be weighed as a substantive matter, not a jurisdictional gateway. International arbitration stands on different a footing. Since it is governed exclusively by the Third Section of Law 1563 – not by Colombia’s ordinary procedural code – the code’s prohibition on extra-legal admissi - bility requirements does not, by the code’s own terms, extend to it. That leaves more room for an internation - al tribunal to hold parties to the specific pre-arbitration steps they agreed to, evaluated on the wording of the clause itself, rather than dismissing them outright as domestic tribunals do. Law 1563 imposes a small set of mandatory proce - dural steps on any arbitration seated in Colombia: • Parties must be treated equally, and each must have a full opportunity to present its case. • The arbitration formally begins once the respond - ent receives the claimant’s request. • The claimant must file a statement of claim setting out the facts, the points in dispute and the relief sought, and the respondent must file a response. • Every document one party submits must be shared with the other.
• The award itself must be in writing, signed and rea - soned – the only exception being where no party is domiciled in Colombia and the parties have agreed to dispense with reasons. 7.3 Powers and Duties of Arbitrators Colombian law grants arbitrators a defined set of powers over the proceedings. They may rule on their own jurisdiction (competence-competence), decide the admissibility, relevance and weight of evidence, order interim measures and preliminary orders, appoint experts and order document production, and apply whatever law the parties have chosen – or, in the absence of a choice, whatever law the tribunal considers appropriate. Those powers come with corresponding duties. Arbi - trators must proactively and continuously disclose any circumstance that could raise doubts about their impartiality or independence, and they must guaran - tee equal treatment and due process to both sides Under Article 73 of Law 1563, international arbitration in Colombia does not require legal representatives to be licensed Colombian lawyers, or even Colombian nationals. This is a deliberate departure from domes - tic arbitration, where representation before a tribunal requires a Colombian-licensed lawyer. As a result, foreign lawyers can represent parties in international arbitrations seated in Colombia without any restriction arising from Colombian law – a for - eign investor can retain the same counsel it would use anywhere else in the world, without needing to retain separate local counsel for the arbitration itself. throughout the proceedings. 7.4 Legal Representatives 8. Evidence 8.1 Collection and Submission of Evidence Law 1563 does not impose a rigid evidentiary regime on international arbitration. Parties are free to agree on their own evidentiary rules or leave that determination to the tribunal entirely.
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