COLOMBIA Law and Practice Contributed by: Juan Mendoza, Manuela Hernández Contreras, Andres Parra and Daniel Munera, DRET
9. Confidentiality 9.1 Extent of Confidentiality
In practice, international arbitrations seated in Colom - bia frequently adopt the IBA Rules on the Taking of Evidence as a reference point, particularly for docu - ment production, witness statements and expert reports. The tribunal decides whether the proceedings will include oral hearings or proceed on the basis of documents alone. A respondent’s failure to answer the claim does not amount to an admission of the facts alleged, either: the arbitration simply continues, and that silence carries no evidentiary weight against the respondent. 8.2 Rules of Evidence International arbitration is not subject to Colombia’s ordinary civil procedure rules on evidence. The tribu - nal has full authority to determine the admissibility, relevance and weight of evidence itself – a genuine departure from domestic civil litigation, where those questions follow the General Code of Procedure. Legal privilege is not expressly regulated under Law 1563. Where the parties have not agreed on its scope, the tribunal determines it by reference to the general principles of international arbitration – not by applying Against the parties themselves, a tribunal has direct authority to order document production, access to assets and information, and expert participation in hearings – and it may also request expert reports on its own initiative. The principle of co-operation governs domestic and international arbitration alike. Even so, a party may resist a production request by invoking the confidentiality or the non-existence of the documents or information sought. any single national privilege rule. 8.3 Powers of Compulsion Against non-parties, and for evidence-taking more generally, the tribunal has no direct coercive power; it must instead request the co-operation of the com - petent judicial authority, whether Colombian or for - eign. And in annulment proceedings specifically, the Supreme Court has declined to order evidence on its own initiative, underscoring the summary, exceptional nature of that particular procedure.
Law 1563 does not establish any confidentiality regime for international arbitration. There is no legal presump - tion of privacy over the proceedings, the pleadings or the award itself – unless the parties have agreed on some level of confidentiality themselves. Any protec - tion, in other words, has to come from somewhere else. Between Private Parties: Contractual Protection, With Limits Parties can agree to confidentiality directly in the arbi - tration clause, or by adopting institutional rules that provide for it, such as those of the ICC, LCIA or ICDR. That protection binds the parties to each other, but it is not a legal privilege enforceable against third par - ties, and it does not shield the proceedings from the publicity that comes with any later judicial intervention – once a case reaches annulment or recognition pro - ceedings, the underlying record becomes subject to judicial scrutiny regardless of what the parties agreed. Where the State is a Party: Confidentiality Becomes Structurally Difficult Where a public entity is involved, confidentiality becomes structurally difficult to sustain. Colombian law starts from the premise that state documents are public, and only an express legal reservation can jus - tify restricting access to them. Because an arbitrator exercises a judicial function under Article 116 of the Constitution, awards involving the state are treated much like ordinary court decisions – and inherit their public character as a result. Not even an institutional rule chosen by the parties can create a confidentiality protection Colombian law itself does not provide: if the arbitration clause is silent and no statutory res - ervation applies, the institution’s own rules cannot fill that gap. In short: confidentiality here is never automatic. It exists only to the extent the parties built it themselves – and even then, it cannot survive the state’s own par - ticipation.
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