COLOMBIA Law and Practice Contributed by: Javier Franco, Franco & Abogados Asociados
6.2 Enforcement of Law and Arbitration Clauses Incorporated Into a Bill of Lading There is no sufficiently developed case law on this specific issue that can provide full guidance for future cases. However, the courts usually give effect to the situation in which the contract incorporates – at least in part – the content of a contract by using a remission to another con - tract/document. In any case, the points raised in 6.1 Enforcement of Law and Jurisdiction Clauses Stated in Bills of Lading should be taken into account. 6.3 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards Colombia has ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, which has full effect in Colombia. Some additional provisions on the subject are provided in Law 1563 of 2012, spe - cifically regarding the domestic procedure for the recognition and execution of foreign arbitral awards. 6.4 Arrest of Vessels Subject to Foreign Arbitration or Jurisdiction Article 38 of Decision 487 basically mirrors what is contained in Article 2.3 of the International Convention on Arrest of Ships, 1999. In that regard, it is clear that a vessel could be arrested in Colombia, despite the fact that, by virtue of a jurisdiction and/or arbitration clause contained in a different contract, the maritime credit/claim should be adjudicated and/or established by a different jurisdiction, even if in the application of a different law and/or by an arbitral tribunal. 6.5 Domestic Arbitration Institutes There is currently no domestic arbitration insti - tute. However, some recognisable names in the field of maritime law are currently members of
carriage would be applicable. Thus, as per Arti - cle 993 of the Colombian Commercial Code, the time bar will be two years from the moment the trip concludes or should have ended. 6. Enforcement of Law and Jurisdiction and Arbitration Clauses 6.1 Enforcement of Law and Jurisdiction Clauses Stated in Bills of Lading The position of the local courts regarding the recognition and enforcement of law and jurisdic - tion clauses in bills of lading has been somewhat ambiguous, and there is room for academic debate on the subject. From a general perspective, it could be said that jurisdiction clauses have not usually been rec - ognised by local courts, for local procedural law reasons. Regarding choice-of-law clauses, argu - ably the trend is for Colombian courts to apply local law parameters (ie, those of the Colombian Commercial Code) as opposed to parameters contained in the terms of the bill of lading. However, as previously stated, the situation is currently evolving. Some recent case law/local doctrine suggests that, depending on the spe - cific clauses used and/or the specific context of the claim, there could be room for recognising that such clauses should be given full validity and force under Colombian law. The situation is somewhat different if the matter is to be taken to arbitration, since Colombian law on the subject (Law 1563 of 2012) addresses it in that specific context and expressly recognises the validity of this type of clause.
141 CHAMBERS.COM
Powered by FlippingBook