COLOMBIA Trends and Developments Contributed by: Juan Mendoza, Manuela Hernández Contreras, Andres Parra and Daniel Munera, DRET
decides it, regardless of which party that test favours, is what gives the outcome value. The international tribunal moved on the threshold question dividing the two forums. Rather than decid - ing the whole dispute in one sitting, it bifurcated the process, issuing a partial award that addressed only the nature of the arbitration and the rules that would govern it, and leaving the merits of the dispute for later. It found the dispute to be international, reason - ing that the relevant decision to sign the contracts had been taken not in Colombia, but at the foreign parent’s own offices. The same reasoning is at work here as in the first case, only applied to the opposite question. There, the question was whether a signature on a branch’s letterhead was enough to shield a parent from arbitra - tion; here, it is whether a signature abroad is enough, on its own, to pull a contract into the international scope. Article 62 does not ask where a document was physically executed as a matter of form; it asks where the decision to be bound was actually made. That is a deliberately objective test, not a subjective one: it protects a party seeking to bind a foreign parent to international arbitration, since real involvement – not appearances – is what counts. But it should also make any group operating across borders pay attention to how instructions travel inside the organisation, since the same “substance over form” standard that helps a claimant reach a reluctant parent can pull an unwitting one into a forum it never intended to choose. None of this makes Colombian arbitration unpredictable. If anything, it is the opposite: since the test is objective, the outcome does not depend on which side benefits from it. The matter went to Colombia’s Supreme Court, as an annulment process since the tribunal had called its ruling a “partial award”. The Supreme Court has recognised partial awards as final decisions subject to recognition, yet the same analysis does not extend to the annulment of partial awards. As a result, the Supreme Court did not even admit the matter, as annulment exists to correct a genuine, final decision on the substance of a dispute, not a ruling that mere - ly organises how the arbitration will proceed. As the Court outlined, the character of an arbitral award does
not depend on the label assigned, but on the true nature of the decision it contains. As noted above, there is a deeper principle behind that distinction. Under Colombia’s arbitration law, a tribunal has the authority to rule on its own jurisdiction – including whether an arbitration is domestic or inter - national. Competence-competence and minimal inter - vention are, in practice, two sides of the same coin. The first tells a tribunal it may rule on its own jurisdic - tion before any court gets involved. The second tells a court, once that ruling exists, to leave it alone – to review the label a body put on a decision, not to re- litigate the substance behind it. Neither principle does much on its own: a tribunal’s power to decide its own jurisdiction would mean little if a court could still reo - pen that decision on request, and a court’s restraint would have nothing to restrain if tribunals had no real authority to rule in the first place. Applied together, as they were here, the two principles do what interna - tional arbitration is generally understood to require: they keep the question of who decides separate from the question of who gets the last word on how that decision is reviewed. Minimal intervention, applied with discipline The Supreme Court has been truly strict in applying the principle of minimal intervention, to the extent that it will not entertain the merits of an annulment against an international partial award addressing a tribunal’s competence or its own procedural rules. Yet where a party raises a ground that does not collide with a tribunal’s own ruling on its competence, the Supreme Court applies minimal intervention through five rules applied together: • The absence of substantive review : A court asked to annul an award does not re-examine whether the tribunal reached the right result, only whether it stayed within its own jurisdiction and followed the process the parties agreed to. • The exhaustive , closed list of grounds : Annulment lies only for the specific defects the statute names, and a court cannot reach for an unlisted ground, however appealing the argument, simply because the case is a hard one. • Harmonisation with international practice : The standard is meant to converge with how arbitra -
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