COLOMBIA Trends and Developments Contributed by: Juan Mendoza, Manuela Hernández Contreras, Andres Parra and Daniel Munera, DRET
A Pattern Becomes a Development We chose these two cases precisely because they are different. They did not involve the same rule applied twice. One asked whether a foreign parent could avoid being bound by an arbitration it had never signed, simply by acting through a Colombian branch. The other asked whether the Supreme Court could sec - ond-guess an international tribunal’s own qualification of the arbitration as international, once that qualifi - cation had already set the procedure in motion. Yet both cases point to the same conclusion: the interna - tional arbitrators and Colombian top judiciary looked beyond labels and decided the issue based on sub - stance, evidence and the integration of the principles of competence-competence and minimum interven - tion. Those principles are not limited to these two disputes. Of the arbitral awards challenged before Colombia’s Supreme Court over the past decade, only a small fraction – around 5% – were annulled. The two cases described here are not outliers; they are examples of principles that show up whenever they are tested. None of this makes Colombia’s arbitration institutions flawless. It does show what happens when they are tested: international arbitrators protect international arbitration in Colombia and by the same token the Supreme Court applies minimal intervention with real discipline, protecting both the tribunal’s authority to rule on its own competence and the finality that arbi - tration is supposed to deliver. That is a more demand - ing standard to meet than simply avoiding error – and it is the one that was tested here. This pattern matters right now. Commercial arbitration in Colombia does not depend on who holds office; it runs on principles that are, by design, independent of politics, and on a standard drawn from internation - al practice rather than from any local convenience. These two cases show exactly that – a tribunal that was free to rule on its own jurisdiction, and a judici - ary that stayed within the narrow role assigned to it. Substance, not paperwork or formalities, decides the outcome. That is not just theory; it is a track record – an international arbitration practice built on principle, not on the politics of the moment.
tion-friendly jurisdictions elsewhere treat the same question, not to develop a distinctly Colombian version of judicial review that a foreign party would not anticipate. • The parties ’ own waiver of ordinary jurisdiction : Having chosen arbitration, the parties are treated as having given up recourse to the courts, and that waiver survives except for the narrow, specifically listed exceptions the law itself carves out. Colom - bia’s courts apply this standard the same way courts do in other arbitration-friendly jurisdictions. • The message that restraint itself sends : By declin - ing to intervene, the court does more than decline a single case; it signals, implicitly, that it is the international tribunal – not a reviewing court – that controls how its own proceeding moves forward. That silence is not a gap in oversight; it is the mechanism working as intended, and it reinforces competence-competence more effectively than an express ruling could, precisely because it leaves the tribunal’s authority undisturbed rather than merely affirmed. Calling a ruling an “award” did not open a door the law had never built. Applied to a label rather than a substantive defect, those five rules did the work together: there was no substantive defect to review, the ground invoked did not appear on the closed list, and the parties’ own waiver of ordinary jurisdiction left no room to reopen a question the tribunal had already settled. Minimal intervention, in other words, must prevail whenever a party tries to use the courts to teach into a tribunal’s procedural decisions – not only its decisions on the merits. That is the real lesson of this case: it was not any one arbitrator’s skill that held the line, but the structure of the system itself – clear rules on jurisdiction, a narrow channel for review, and a consistent refusal to let procedure substitute for merit. The first case showed that a corporate structure cannot shield a controlling party from being held to account in arbitration; this case shows that the same discipline holds even over the procedural architecture of an international arbitration itself – not only over its final result.
276 CHAMBERS.COM
Powered by FlippingBook