COLOMBIA Law and Practice Contributed by: Javier Franco, Franco & Abogados Asociados
the different arbitration centres established by chambers of commerce across the country. 6.6 Remedies Where Proceedings Are Commenced in Breach of Foreign Jurisdiction or Arbitration Clauses Such remedies should be assessed on a case- by-case basis. However, a lack of jurisdiction of the Colombian courts could eventually be alleged, as well as the existence of an arbitra - tion clause, if any. In that regard, it should be noted that such situations are to be considered as “preliminary exceptions” within the Colombi - an traditional civil procedure. Given their nature, those exceptions are given priority by the judge in respect of the decision to be provided on the merits of the claim. 7. Ship-Owners’ Income Tax Relief 7.1 Exemptions or Tax Reliefs on the Income of Ship-Owners’ Companies Law 2133 of 2021 created a special tax treatment (tariff) for income resulting from international maritime service rendered by vessels entered in the Colombian “unique” registry. Under Article 30 of this law, the new special tariff for that ser - vice is only 2%. 8. Implications of Non- Performance, the IMO 2020, Trade Sanctions and the War in Ukraine 8.1 Force Majeure and Frustration Force majeure is a concept that is usually rec - ognised by the courts, following the approach that civil law countries usually take regarding that legal institution. Thus, local courts usually recognise that an event must consist of at least two conditions in order to constitute a force
majeure: it must be unforeseeable, and it must be unavoidable. It is doubtful whether the COVID-19 pandemic itself could still be considered an event of “force majeure” at this point, since in most cases the situation would no longer be seen as unforesee - able. As Colombia is a civil law country, the legal con - cept of “frustration” is not a familiar one. How - ever, Colombian law has an institution that could be deemed to share some similarities or points in common with that category of law, known as imprevisión . That legal remedy is contemplated in Article 868 of the Colombian Commercial Code, which establishes that one of the par - ties could request the revision of the contract whenever unforeseen and extraordinary circum - stances occurring after the conclusion of a con - tract (a contract of which the execution is to be projected in time) have altered its obligations, rendering them “excessively onerous”. 8.2 Enforcement of the IMO 2020 Rule Relating to Limitation on the Sulphur Content of Fuel Oil MARPOL Annex VI is not yet applicable in Colombia. In any case, it is worth mentioning that Law 1205/08 demands that any means of transport using diesel uses less than 50 parts per million of sulphur. Sanctions for not complying with this provision are contained in Resolution 180689 of 2010 of the Ministry of Mining and Energy. 8.3 Trade Sanctions Colombia has not yet specifically incorporated any of the international trade sanctions into domestic law nor recognised them at a domestic level, but it has co-operated with several govern -
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