International arbitration law and rules in Colombia

Alternative dispute resolution, including arbitration, is the most effective way to overcome delays in ordinary justice in Colombia. Commercial arbitration is the preferred method to resolve disputes in international transactions. In March 2020, the president of the Arbitration Centre of the Chamber of Commerce of Bogotá announced the creation of a Colombian International Court of Arbitration. We anticipate this project will increase the volume of arbitration proceedings over the next few years. 

1.1.1 Arbitration in Colombia is governed by the National Constitution and Law N. 1563 of 2012 (Arbitration Statute). The Arbitration Statute defines arbitration as “an alternative dispute resolution mechanism by which parties defer to arbitrators the resolution of a dispute regarding matters of free disposition or those authorised by law.” This mechanism “is governed by the principles and rules of impartiality, suitability, speed, equality, oral proceedings, publicity and contradiction.”

1.1.2 Colombia is party to the New York Convention and other international treaties.

1.2.1 Title XIX of Law N. 105 of 1890 is the oldest provision related to domestic arbitration in Colombia. Subsequently, Law N. 105 of 1931 (Judicial Code) regulated the subject and later Law N. 2 of 1938 regulated the validity of arbitration clauses. Years later, the Code of Civil Procedure instituted arbitration as a judicial proceeding.

1.2.2 International arbitration was later regulated by Law N. 315 of 1996. It laid down the rules for determining whether an arbitration was international, the rules to be applied in international arbitration proceedings, and the notion of a foreign arbitral award. Nonetheless, there was a notorious lack of uniformity regarding the procedure since several rules on the same matter (sometimes with conflicting provisions) were in force at the same time, as the Congress did not derogate from previous laws that used to regulate the issue.

1.2.3 In 1998, the legal rules governing arbitration were consolidated by Decree N. 1818 (Statute of Alternative Dispute Resolution Mechanisms). The Decree contained widely recognised principles of arbitration including separability (Article 118), “kompetenz-kompetenz” (Articles 147 and 207) and res judicata (Article 168). However, the consolidation was not consistent in terms of concepts such as mediation, conciliation, amicable composition, national and international arbitration, and so forth. Since the Decree did not derogate from the laws that it compiled, the procedures and scope of application were unclear. There were also significant issues with the enforcement of arbitral awards, as recognition could take up to three years.

1.2.4 Considering the limitations of the regulation at the time, the Government presented several bills on the subject that were withdrawn or shelved in Congress. In 2010, the National Government set up a Commission of Experts to prepare draft legislation on national and international arbitration. This led to the enactment of Law N. 1563 of 2012, the current Statute of Domestic and International Arbitration in Colombia (Arbitration Statute).

1.3.1 Colombian Constitution (1991): Under Article 116 of the Colombian Political Constitution, arbitration, as an alternative dispute resolution mechanism, has constitutional status. The Article states that individuals may be temporarily invested with the function of administering justice by acting as arbitrators, both in national and international arbitration.

1.3.2 Arbitration Statute: The Arbitration Statute is the main statutory framework for arbitration. It provides the rules for domestic and international arbitration proceedings seated in Colombia. Unless otherwise provided by law, the tribunal and the parties must apply the Arbitration Statute. Section 1 regulates domestic arbitration and Section 3 international arbitration.

1.3.3 The provisions on international arbitration are largely based on the UNCITRAL Model Law on International Commercial Arbitration. However, the Arbitration Statute does not adopt Article 1.3(c) of the UNCITRAL Model Law under which an arbitration is considered as international when the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country. Therefore, this provision is not applicable. The Arbitration Statute also adopts several rules based on the French arbitration regime, such as the objective criteria of Article 1492 of the French Code of Civil Procedure which provides that an arbitration is international if it concerns international commercial interests.

1.3.4 General Code of Procedure: = In domestic arbitration proceedings, in the absence of specific contractual provisions on the subject matter of arbitration, tribunals must apply the rules set by the General Code of Procedure. In international arbitration, the parties can agree on the procedural rules, and the rules of the General Code of Procedure and the Code of Administrative Procedure and Administrative Disputes do not apply. If the parties do not or cannot agree on the procedural rules for an international arbitration proceeding, the Arbitration Centre will (according to its own rules) decide upon the applicable procedural rules. This will often mean that the arbitrator or arbitrators may decide the procedural rules in such manner as they consider appropriate (as per Article 19 of the UNCITRAL Model Law).

1.3.5 The New York Convention: The New York Convention entered into force on 23 December 1979 and was incorporated into Colombian law through Law N. 39 of 1990. As a result, under the New York Convention, Colombia is obliged to recognise and enforce international awards.

1.3.6 Other conventions and treaties related to international commercial arbitration:

Colombia is a signatory of the following conventions and treaties:

• Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards (Law N. 16 of 1981).
• Inter-American Convention on International Commercial Arbitration (Law N. 44 of 1986).
• Treaty on Private International Law between Colombia and Ecuador (Law N. 13 of 1905).
• 1889 Treaty on International Procedural Law of Montevideo (Law N. 68 of 1920).

1.3.7 Colombia is a signatory to the following conventions and treaties related to international investment arbitration:

• Convention of the Settlement of Investment Disputes between States and Nationals of other States (ICSID) (Law N. 267 of 1996).
• Colombia is also party to 14 international investment agreements (with the United States, Chile, United Kingdom, Canada, South Korea and the European Union, among others), plus other agreements which are not yet in force.

1.3.8 Presidential Directive 4 of 2018: The Directive sets out guidelines for the signing of arbitration agreements by public entities. It provides that the signing of arbitration agreements of national significance must be expressly decided by public management, which entails an assessment prior to the conclusion of the agreement to go to arbitration instead of the ordinary jurisdiction.

1.3.9 Thus, whenever a public entity enters into an arbitration agreement or clause, the entity’s head legal office must provide a legal opinion (which may approve or disapprove the arbitration agreement or clause) and the directors of the entity will have to document the reasons that justify the conclusion of the arbitration agreement.

1.3.10 For the signing of international arbitration agreements, it will be necessary, additionally, to receive a favourable opinion from the Director of the National Agency for the Legal Defence of the State.

2.1.1 The differences between domestic and international arbitration are related to the following subjects:

• Applicable articles of the Arbitration Statute (Law 1563 of 2012): Articles 1 to 58 apply to domestic arbitration, while in international arbitration, Articles 62 to 117 apply.
• Language: Domestic arbitration must be in Spanish whilst international arbitration can be in any language.
• Applicable rule of law: In domestic arbitration, in the absence of agreement between both parties on the applicable procedural law, arbitrators must apply Colombian law. In international arbitration it will all depend on the arbitration centre in which the dispute is being presented. For instance, some centres will allow arbitrators to use any governing law if the parties fail to agree the governing law themselves.
• “Amparo de pobreza”: In domestic arbitration, the Arbitration Statute provides for an institution called “amparo de pobreza” (applicable when a party cannot afford the costs of the process). This “amparo” means that the arbitration centre will appoint an ad honorem lawyer for any party that proves it cannot reasonably afford one and that party will be exonerated of all arbitration costs (both their own and the other party’s costs). International arbitration rules do not contain provisions on this subject.
• Arbitrator’s qualifications: In domestic arbitration, the arbitrator must be Colombian by birth and have at least eight years of professional experience as a lawyer. The arbitrator must not have been sentenced by a court to a term of imprisonment, except for political offences or crimes of negligence, nor must he or she be disqualified from holding public office or have been sentenced to dismissal.

In international arbitration there are no special requirements for arbitrators, beyond those set by the parties. Colombian law does not require arbitrators to have a specific nationality or to be lawyers.

• Arbitrators’ appointment: In domestic arbitration, arbitrators can only be appointed jointly by the parties, by delegating the appointment to a third party, or by delegating the appointment to a civil court in cases in which the parties have failed to agree upon the arbitrators.

In international arbitration, the parties are free to set the procedure for appointing arbitrators (see section 4 below for more information on the appointment procedure).

• Arbitrators’ duties and rights: In domestic arbitration, arbitrators are bound by the same duties, responsibilities and rights as Colombian judges. On the other hand, in international arbitration, the Arbitration Statute does not contain any rules on this subject.
• Lawyers: In domestic arbitration, lawyers representing the parties must be able to practise in Colombia, while in international arbitration, lawyers do not have to be able to practise law in the seat of arbitration.
• Time limit for the award: if the parties do not agree on the time limit for the award, the Arbitration Statute provides that for domestic arbitration the award is to be issued within six months of the first procedural hearing. This can be extended by up to six months at the request of any party. The Statute does not provide rules on this subject for international arbitration.
• Enforcement: Domestic awards can be enforced in the same way as Colombian court judgments. International awards must be enforced through recognition and enforcement proceedings (Exequatur) (discussed in section 10.2 below).

2.2.1 Under Article 62 of the Arbitration Statute an international arbitration is one where:

1. The parties to an arbitration agreement are domiciled in different states at the time the agreement is concluded;
2. The place of fulfilment of a substantial part of the obligations or the place with which the subject-matter of the dispute is most closely connected is situated outside the state in which the parties are domiciled; or
3. The dispute is submitted to arbitration and affects international trade.

2.2.2 Only one of the conditions above needs to be met for the arbitration to be considered as international. In such cases, the Colombian regulations on international arbitration will apply.

There are two types of arbitration agreement for domestic arbitration in Colombia:

• an arbitration clause which is included in the contract subject to arbitration (ie the ‘main contract’) or in a separate document referring to the main contract (in either case arbitration is agreed prior to the emergence of a dispute); and
• compromis, where the parties agree in writing to resolve their dispute through arbitration after the dispute has arisen.

In practice, this difference means that parties can refer almost any dispute to arbitration, regardless of the initial arbitration clause and agreement included in the contract, provided that they unanimously agree on it. This favours overall party autonomy.

This traditional distinction is not made in international arbitration. The Arbitration Statute defines an arbitration agreement as an agreement “by which the parties decide to submit to arbitration all or some controversies that have arisen between them regarding a legal relationship, contractual or not. The arbitration agreement may take the form of an arbitration clause or that of an independent agreement”.

Any matter subject to dispute between the parties may be referred to arbitration. However, there are specific issues which are not arbitrable, such as matters related to: civil status of people (ie divorce or disputes on marital status); tax liabilities; legality of administrative acts; constitutional rights disputes; inalienable labour rights and criminal issues. See section 11.2 below for more information on non-arbitrable matters.

The formal requirements of an arbitration agreement are set out in Article 69 of the Arbitration Statute.

Any domestic arbitration agreement must be in writing and:

• be by consent of the parties;
• clearly identify the parties and the disputes subject to arbitration;
• the scope of the arbitration agreement must concern a matter capable of resolution by arbitration.

An international arbitration agreement must:

• be in writing;
• express the parties’ consent to arbitrate a specific matter; and
• the scope of the arbitration agreement must concern a matter capable of resolution by arbitration.

3.3.1 The separability of arbitration agreements is recognised by Articles 5 and 79 of the Arbitration Statute. An arbitration clause within the main contract is valid providing it complies with the formal requirements in section 3.2 above.

3.3.2 Arbitration clauses contained in a document separate from the main contract are valid under Colombian law. Such clauses must include an express reference to the contract to which they relate and expressly identify the names of the parties.

3.4.1 Valid arbitration agreements are enforceable in Colombian courts. Therefore, parties are obliged to refer their dispute to an arbitral tribunal pursuant to the terms of their arbitration agreement and the courts must decline jurisdiction over that dispute. The courts will refer the parties to arbitration regardless of whether Colombia is the seat of arbitration.

3.4.2 As a rule, an arbitration agreement only binds the parties to it. However, third parties may be joined to the proceedings either voluntarily (with prior approval from the tribunal), at the tribunal’s request (under Article 60 of the General Code of Procedure) or at the request of the claimant or the respondent, where either party alleges that a third party should also be joined as a debtor (under Article 64 of the General Code of Procedure).

3.4.3 In domestic arbitration, a guarantor of obligations contained in a contract that includes an arbitration agreement may be bound by the arbitration agreement if the guarantor is joined to the proceedings by the guaranteed party.

3.4.4 In international arbitration, the tribunal may decide to allow a third party to join the arbitration where:

• the third party has intervened in the contract affecting the rights or obligations of the parties to the arbitration agreement; and/or  
• the third party's obligations depend on or are concomitant with the obligations of the parties to the agreement.

3.4.5 Joinder of third parties is determined on a case-by-case basis.

The rules regarding the composition of the arbitral tribunal are set out in Articles 72 to 74 of the Arbitration Statute. The rules deal with the following matters:

• the constitution of the arbitral tribunal;
• the arbitrator’s duty of disclosure;
• the procedure for challenging and substituting arbitrators;
• appointment of substitute arbitrators;
• liability and immunity of arbitrators; and
• the tribunal’s fees.

4.1.1 Parties are free to determine the number of arbitrators

The parties are free to agree on the number of arbitrators. The number of arbitrators must be an odd number. If there is no agreement on the number of arbitrators, a three-member tribunal will be appointed.

4.1.2 Qualifications

In international arbitration, the Arbitration Statute does not require an arbitrator to have any special qualifications beyond those agreed by the parties. Non-lawyers may also be appointed as arbitrators. 1 Arbitration Statute, arts. 73 and 75.

4.1.3 Procedure for appointing arbitrators and judicial authorities’ role

In international arbitration, the parties are free to agree the procedure for the appointment of the tribunal. In the absence of agreement, the following rules apply:

• If the parties have agreed that the tribunal will consist of a sole arbitrator, the arbitrator must be appointed by agreement within 30 days of the request from one party to the other to appoint the arbitrator.
• If the parties have agreed to appoint a three-member tribunal, each party must appoint one arbitrator. The party initiating the arbitration must send a request to the other and the requested party must appoint its arbitrator within 30 days of the request. Then the two party-appointed arbitrators must appoint the third arbitrator within 30 days of the notification of their appointment. If there is more than one claimant and/or more than one respondent, all the claimants must jointly appoint one arbitrator and all respondents must jointly appoint the other arbitrator.

4.1.4 Article 73 (5)(6) of the Arbitration Statute provides that a judicial authority must appoint the tribunal in the following situations:

• Where the parties have agreed that the tribunal is to consist of a sole arbitrator, but they fail to agree on the appointment within 30 days of the request from one party to the other to appoint the arbitrator.
• Where the parties have agreed to appoint a three-member tribunal but the respondent fails to appoint an arbitrator within 30 days of the request from the other party or the two party-appointed arbitrators fail to agree on the appointment of the third arbitrator within 30 days of the notification of their appointment
• Where during the appointment process:
  1. either party does not follow the appointment procedure stipulated;
  2. the parties or the arbitrators appointed are unable to reach agreement on the appointment procedure; or
  3. a third party fails to perform its required function such as appointing the arbitrators (unless the agreement on the appointment procedure provides for other means to achieve this).

4.2.1 A person nominated as an arbitrator is under an obligation to disclose circumstances that may create justifiable doubts as to their impartiality or independence. The arbitrator must disclose conflicts of interest (whether existing or potential).

4.2.2 The duty of disclosure applies throughout the arbitration proceedings.

4.3.1 Pursuant to Article 75 of the Arbitration Statute, a party can challenge an arbitrator’s appointment where:

1. there are justifiable doubts as to the arbitrator’s impartiality or independence; or
2. the arbitrator does not have the qualifications agreed by the parties.

4.3.1 A party may only challenge an arbitrator whom it has appointed where the circumstances which give rise to the challenge became known after the appointment has been made.

4.3.3 The parties are free to agree on the procedure for challenging an arbitrator, or to adopt institutional rules. In the absence of agreement, the following rules apply:

• The party challenging an arbitrator must identify the reasons as soon as possible after becoming aware of the grounds for the challenge. If there is a document that justifies the party’s doubt, it should be attached.
• The challenged arbitrator and all other parties have ten days within which they may respond to the challenge.

4.3.4 If the challenged arbitrator resigns, or all other parties agree to remove the challenged arbitrator, another arbitrator will be appointed (in accordance with the procedure described in section 4.4 below). If one or more of the other parties does not agree to the challenge, and the challenged arbitrator does not resign, the challenge will be decided by the arbitral institution or, where there is no arbitral institution, by the corresponding judicial authority.

4.3.5 Whilst the challenge is being resolved, the arbitration procedure can continue. Parties cannot appeal the decision that settled the challenge.

4.4.1 Under Article 78 of the Arbitration Statute a substitute arbitrator will be appointed if:

1. an arbitrator has resigned;
2. the parties have agreed to remove an arbitrator; or
3. the functions of an arbitrator have expired for any reason.

4.4.2 The appointment of a substitute arbitrator must follow the same procedure by which the replaced arbitrator was chosen.

4.5.1 Under Colombian law, there are no specific rules regarding the liability of arbitrators in international arbitration. However, some arbitral institutions, such as the Arbitration and Conciliation Centre of the Chamber of Commerce of Bogotá, limit an arbitrator’s liability for acts or omissions in relation to the arbitration.

4.6.1 In domestic arbitration, the Arbitration Statute sets a legal limit on the total fees that can be charged by arbitrators for the whole arbitration proceeding. The provision states that the fees per arbitrator may be up to 1.000 minimum monthly wages (approximately US $243.000) if the tribunal is composed of more than one arbitrator, and up to 1.500 minimum monthly wages (approximately US $365.000) for a sole arbitrator.

4.6.2 The Arbitration Statute does not include a limit on arbitrator fees in international arbitration. 

4.6.3 Where the parties adopt institutional rules, such as those of the Arbitration and Conciliation Centre of the Chamber of Commerce of Bogotá, they may be required to provide funds to cover fees and expenses related to the proceedings. The same does not apply for ad hoc arbitrations.

5.1.1 In domestic arbitration, the arbitral tribunal is entitled to decide on its competence over a matter. The tribunal’s decision prevails over any decision issued by an ordinary or administrative court, 2 Arbitration Statute, art 29. except for judicial decisions on the annulment of an arbitral award.

5.1.2 In international arbitration, the tribunal has the power to determine its own jurisdiction. 3 Arbitration Statute, art 79. Any challenge to the tribunal’s jurisdiction must be made no later than the time for filing the response to the request for arbitration. The tribunal can determine the objection in a separate award on jurisdiction or within its award on the merits of the case. Where the tribunal determines the objection in an award on the merits, the tribunal’s decision on jurisdiction can be challenged through an application for annulment.

5.1.3 The application must be brought before local judges and not before a new arbitral tribunal. The relevant judges are those of the place defined by the parties or by the court as the arbitral seat.

5.1.4 If an arbitral tribunal decides that it has jurisdiction over a matter that is already being heard by a national court where a first instance ruling has not been rendered, it is entitled to order the court to terminate the proceedings and to submit the dispute to arbitration (domestic or international).

5.2.1 Unless the parties agree otherwise, in international arbitration proceedings the arbitral tribunal may order any conservatory or provisional measures 4 Arbitration Statute, art 80.  that it deems appropriate. The measures will be binding without instituting an action for recognition. 5 Arbitration Statute, art 88. These measures are regulated by Article 89 of the Arbitration Statute.

5.2.2 Civil circuit judges are responsible for enforcing interim measures ordered by the tribunal. The local courts may refuse to enforce an interim measure on the following narrow grounds: 6 Arbitration Statute, art 89.

• At the request of the party against whom the interim measure is ordered, when one of the following situations occurs:
  • at the time the arbitration agreement was entered into one of the parties lacked capacity to subscribe to the agreement; or
  • the agreement is not valid under the law to which the parties have subjected it; or
  • it was not duly notified of the initiation of the arbitration; or
  • the decision relates to a dispute not covered by the arbitration agreement or contains decisions that exceed the terms of the arbitration agreement; or
  • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, if there was no such agreement, was not in accordance with the law of the country where the arbitration takes place; or
  • the decision of the arbitral tribunal on the provision of security corresponding to the interim measure issued has not been complied with; or
  • the interim measure has been revoked or suspended by the arbitral tribunal or, where it has the power to do so, by a judicial authority of the State where the arbitration proceedings are taking place or under whose law the measure was granted.
• Ex officio, when:
  • under Colombian law the subject matter of the dispute is not subject to arbitration; or
  • the execution of the measure would be contrary to Colombian international public order.

5.2.3 Where the parties arbitrate under the ICC Rules, they may apply to any judicial authority for conservatory measures before the file is sent to the arbitral tribunal. 7 Arbitration Statute, art 71.

5.2.4 For more information on interim measures see section 8.3 below.

6.1.1 Unless the parties agree otherwise, international arbitration proceedings will commence on the date on which the respondent receives the request for arbitration.

6.2.1 Colombian arbitration proceedings are governed by the principles of impartiality, suitability, promptness and equality. The tribunal should carry out its proceedings orally and must follow an adversarial procedure.

6.2.2 The arbitral tribunal must treat the parties equally and must give each of the parties the opportunity to present their case.

6.3.1 The parties are free to decide the seat of the arbitration. In the absence of agreement by the parties, the tribunal will determine the arbitral seat considering the specific circumstances of the case.

6.3.2 The parties are free to agree on the language or languages to be used in the arbitral proceedings. In the absence of any agreement between the parties, the tribunal will determine the language of the arbitration.

6.4.1 Unless the parties agree otherwise, the arbitral tribunal will decide whether any hearing will take place with oral submissions and evidence. Alternatively, the parties can agree to a ‘documents-only’ arbitration.

6.4.2 The tribunal will promptly notify the parties if it decides that a hearing should be held at any stage.

6.4.3 A conciliatory hearing must take place after the respondent submits its reply to the claim. This is an obligatory hearing at which the tribunal will propose different alternatives to achieve a conciliatory agreement between the parties. This hearing can take place during the initial oral hearing or at a separate hearing \ before the initial oral hearing.

6.5.1 Where the claimant fails to present its claim in accordance with the requirements laid down in Article 96 of the Arbitration Statute, the tribunal can reject the claim or declare the claim as inadmissible. In the latter situation, according to the Colombian General Code of Procedure, the claimant will then have five working days to correct the points and requirements ordered by the tribunal. 8 Arbitration Statute, art 20. The tribunal may also directly reject the claim if there is no proof of the existence of the arbitration clause.

6.5.2 If the respondent does not respond to the claim in accordance with the requirements in Article 96 of the Arbitration Statute, the arbitral proceedings will continue but the respondent’s omission will not be taken as an acceptance of the claimant’s claim.

6.5.3 If one of the parties does not appear at an oral hearing or does not present any written submissions or documentary evidence, the tribunal is entitled to continue the proceedings and render an award.

6.6.1 The arbitral tribunal, or any of the parties with the approval of the tribunal, can request judicial assistance for the taking of evidence.

6.6.2 When the Colombian courts are requested by the courts of a foreign jurisdiction to provide assistance in relation to an arbitration seated in a foreign jurisdiction, Colombian courts will act as they would in a “Judicial Commission”, a legal instrument through which a judicial authority entrusts another authority that is different to that of the main proceeding to conduct certain acts that cannot take place in the same place as the main proceeding. 9 General Code of Procedure, art 37.

6.6.3 If a request for taking evidence is made to a foreign court the taking of evidence must follow the rules of that jurisdiction and the foreign court should act to the extent of its competence.

6.7.1 Unless the parties agree otherwise, the arbitral proceedings will be private and confidential.

7.1.1 Both in domestic and international arbitrations, the tribunal must decide the dispute according to the law chosen by the parties.

7.1.2 Unless the parties agree otherwise, the law chosen by them will be taken to refer to the substantive law of the chosen country and not to its conflict of laws rules.

7.1.3 If the parties do not choose the applicable law, the arbitral tribunal will apply the rules of law that it deems appropriate.

7.1.4 The tribunal can decide the dispute ex aequo et bono only if the parties have authorised it to do so.

7.2.1 In domestic and international arbitration where the applicable law is Colombian law, the arbitral tribunal must render its award within six months following the conclusion of the first procedural hearing unless otherwise agreed by the parties. The time limit may be extended for six months at the request of a party, subject to the tribunal’s approval.

7.2.2 The arbitral award must be presented in written form and it must be signed by all the members of the arbitral tribunal. However, the absence of one signature does not invalidate the award if it is signed by the majority of the tribunal members or the presiding arbitrator. 11 Arbitration Statute, art 104.

7.2.3 The arbitral award must contain a statement of reasons, unless the parties have agreed otherwise (which is only possible if neither party is domiciled or resident in Colombia or if it is an award after a settlement). The award must indicate the date and place of arbitration in which it will be considered rendered. 12 Arbitration Statute, art 104.

7.2.4 The arbitral award must be notified by delivering a signed copy to each of the parties. 13 Arbitration Statute, art 104.  Furthermore, for domestic arbitration and international arbitration whose applicable law is Colombian law, all notifications can be sent electronically (ie via email). 14 Arbitration Statute, art 23.

7.3.1 If the parties agree to settle their dispute during the course of the arbitration, the tribunal has to terminate the proceedings but may issue an agreed award recording the settlement if requested by both parties.

7.3.2 Such an award has the same effect as any other award issued on the merits of a dispute. 15 Arbitration Statute, art 103.

7.4.1 For domestic and international arbitration where the applicable law is Colombian law, there is a legal limit to the fees that can be charged by arbitrators. The price ceiling is 1.000 minimum monthly wages (approximately US $243,000) if the tribunal is composed of more than one arbitrator, and 1.500 minimum monthly wages (approximately US $365,000) for a sole arbitrator. 

7.4.2 The arbitrator’s fees must be fixed after the conciliation hearing takes place where a conciliation is not achieved.

7.4.3 Despite the existence of the legal price ceiling mentioned above, this value does not determine in any way the total cost of the arbitration process, since the costs related to the arbitration centre and the legal fees of each party, among other costs, cannot be disregarded.

7.4.4 To determine the maximum fee for each arbitrator in international arbitrations governed by laws different to those of Colombia, it is necessary to evaluate the costs of the arbitration centre and its rules.

7.5.1 Arbitration proceedings will be terminated in the following circumstances:

• once the arbitral award or a supplemental arbitral award is issued (although if a party requests clarification of the award, the proceedings will not be over until the tribunal has responded to the request);
• if the request for arbitration is withdrawn by the claimant and the respondent consents to the termination of the proceedings;
• the parties settle the dispute; or
• the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

7.6.1 An arbitral award is final and binding and creates a res judicata. Domestic awards are enforceable in the same way as court decisions. International awards can likewise be enforced but an exequatur procedure must be initiated before the Supreme Court for the award to be recognised (see section 10.2 below).

7.7.1 The parties can request that the arbitral tribunal correct any mathematical, transcription or typographical error in the award, or clarify any ambiguity in the award. Any such request must be made within one month of the date of the award unless the parties have agreed otherwise. Any correction or clarification to the award must be made within one month of the date of the award as well. The tribunal can deliver corrections ex officio during that same period. 

7.7.2 Any party may request that the tribunal issue a supplemental award in respect of any claim made during the arbitral proceedings which was not dealt with in the award. Any supplemental award must be made within 60 days of the date of the award.

7.7.3 If necessary, the arbitral tribunal can extend the time limit for making any correction or clarification to the award, or making any additional award.

8.1.1 The arbitral tribunal is entitled to rule on its own jurisdiction, including where there is any objection to the existence, validity or effectiveness of the arbitration agreement, in accordance with the international principle of “Kompetenz-Kompetenz”.

8.2.1 See section 4.1 above for information on judicial appointment of arbitrators.

8.2.2 As explained above, if there is no agreement between the parties:

1. for a sole arbitrator, the judicial authority, following an application made by any of the parties, will name the arbitrator;
2. for a three person tribunal, each party appoints an arbitrator and the two arbitrators appointed by the parties will appoint the third arbitrator.

8.2.3 The person chosen as an arbitrator must reveal all circumstances that might compromise his/her impartiality or independence for the purpose of the proceeding, under his/her “information duty”. 16 Arbitration Statute, art. 15  If one of the arbitrators is the subject of any circumstance that compromises the abovementioned principles, he/she can be removed by the other two arbitrators. 17 Arbitration Statue, arts. 75 and 76

8.3.1 Unless the parties agree otherwise, the arbitral tribunal is entitled to grant interim protective measures.

8.3.2 The interim protective measures used most frequently are the seizure and sequestration of assets. Also, in some cases the tribunal can order an “unnamed” interim protective measure if considered appropriate; meaning a measure not provided for in the law, which entitles the judge to decree it according to their prudent judgment. In any case, the claimant must pay security equivalent to 20 percent of the claim amount.

8.3.3 Every interim protective measure ordered by the tribunal will be binding without the need for any other recognition procedure unless otherwise directed by the tribunal. The tribunal is entitled to request the execution of the measure by the courts, regardless of where or in which state it was ordained. 

8.4.1 The arbitral tribunal, and any of the parties with the approval of the tribunal, can request judicial assistance from the Colombian courts or a foreign court for obtaining evidence. The court to which the request was made (whether the Colombian courts or a foreign court) must respond to the request according to its own competence and the relevant rules in that jurisdiction.

8.4.2 See section 6.6. above for more information on judicial assistance.

9.1.1 A request to the court to set aside an arbitral award can be made by any of the parties on one or more of the following grounds:

• At the time the arbitration agreement was entered into, the party was affected by some incapacity.
• The arbitration agreement was not valid under the law to which the parties submitted the dispute (or, in the absence of express agreement, under Colombian law).
• The party was not duly notified of the appointment of an arbitrator or of the initiation of the arbitration proceedings or could not, for any other reason, assert its rights.
• The award deals with a controversy not foreseen in the arbitration agreement or contains decisions that exceed the scope of the arbitration agreement (in which case only the offending parts of the award may be annulled, if they can be separated).
• The composition of the arbitral tribunal, or the procedures adopted by the tribunal, failed to comply with the procedures agreed by the parties.

9.1.2 The arbitral tribunal, on its own motion, where:

• the dispute is not arbitrable under Colombian law; or
• the award is contrary to the international public policy of Colombia.

9.1.3 On an application to set aside an award, the judge will not rule on the merits of the underlying dispute or the tribunal’s reasons for its decision.

9.2.1 As explained in section 7.6. above, the final award has the effect of res judicata and can generally only be challenged through an action to set aside the award.

9.2.2 The award can be challenged on constitutional grounds but only in very limited circumstances, such as (i) a violation of due process or any other violation of a fundamental right, (ii) ignoring a court’s precedent or (iii) that the decision is contrary to the Colombian Constitution. Also, an application to set aside the award must have been filed before challenging on constitutional grounds since this is a subsidiary mechanism that should only be used to prevent an irreparable harm. Therefore, in practice, challenges on constitutional grounds are very rare.

9.3.1 Where neither party is domiciled or resident in Colombia, the parties may, by express declaration in the arbitration agreement or by a subsequent written agreement, exclude the right to bring an action to set aside the arbitral award, or limit it to one or more of the grounds in Article 107 of the Arbitration Statute.

10.1.1 Awards rendered in domestic arbitrations and international arbitration seated in Colombia can be enforced in the Colombian courts in the same way as a court ruling.

10.2.1 A party seeking to enforce a foreign award must file a request for an exequatur for the award to be recognised and enforced. The exequatur request may be filed before the Supreme Court of Justice or the State Council. The party requesting the exequatur must attach the original award and arbitration agreement or duly certified copies. If the award and/or the arbitration agreement are not in Spanish, an official translation must be submitted.

10.2.2 Once the request has been accepted by the court, the party against whom recognition and enforcement of the award is sought has ten days to file its written submissions on the subject. A hearing will be fixed for the examination of the evidence, the hearing of the parties' submissions and the pronouncement of the judgment.

10.2.3 The court must verify that the award is valid and enforceable under the New York Convention. Article 606 of the General Code of Procedure determines the requirements that must be met for the award issued abroad to take effect in Colombia. The requirements are as follows:

• It does not concern rights in land constituted by assets that were in the Colombian territory at the time the sentence was pronounced.
• It does not offend laws or other Colombian provisions of public order, except those of procedure.
• It is executed in accordance with the law of the country of origin and is presented in a duly legalised copy.
• The matter which it concerns does not fall within the exclusive competence of Colombian judges.
• There are no proceedings in progress in Colombia or enforceable judgments by national judges on the same matter.
• If the case has been adjudicated in a contentious process, the requirement for the respondent to be duly summoned and given the proper chance to reply, in accordance with the law of the country of origin, has been fulfilled, which is presumed from the enforceability of the judgment in the country in which the arbitration is seated.

11.1.1 Although no judicial authority can intervene in international arbitration except in the manner expressly provided by the Arbitration Statute, “tutela” 19 A tutela action is a constitutional injunction that aims to protect fundamental constitutional rights when they are violated or threatened by the action or omission of any public authority or by private persons. The tutela action is incorporated in Article 86 of the Constitution.  (a constitutional remedy) represents a potential exception to this rule. 

11.1.2 The Constitutional Court has ruled that a tutela action is admissible against an award in international arbitration seated in Colombia in exceptional circumstances where fundamental constitutional rights are infringed, after a more rigorous analysis of the procedural requirements of the action has taken place. 20 Ruling T-354 of 2019 of the Constitutional Court. Judge-Rapporteur: Dr. Antonio José Lizarazo Ocampo.  The exhaustion of the action for annulment is a necessary condition for the examination of a tutela action against an international award based in Colombia.

11.1.3 The admissibility of the tutela action against international awards seated in foreign countries has not yet been decided upon by any Colombian court.

11.2.1 Only disputes concerning matters that can be settled directly by the parties or authorised by law may be submitted to arbitration. 21 Arbitral Statute, art. 1 and Ruling C-947 of 2014 of the Constitutional Court.  

11.2.2 Matters that cannot be subject to arbitration include:

• Antitrust matters. 22 Law N. 1340 of 2009, art 6.
• The validity of decisions taken by the shareholders' assembly or board of directors of a company (except for decisions taken by Simplified Stock Companies). 23 Simplified Stock Companies (“SAS” by its initials in Spanish) are a type of company that may be constituted by one or several natural or legal persons, who will only be liable up to the amount of their respective contributions.
• Legality of administrative acts or matters regarding Colombia’s sovereignty, such as public and security order, constitutional order, and all public matters exclusively related to the State.
• Fundamental rights.
• Matters regarding civil status. 24 Articles 2473 and 2472 of the Civil Code
• Criminal and tax matters. 25 Constitutional Court rulings C-242 of 1997 and C-294 of 1995.
• Recognition and validity of moral rights regarding intellectual property. 26 Decision 468 of 2000 by the Andean Community.
• Disputes related to certain Labour Law minimum rights.

11.2.3 For more information on arbitrability see section 3.1 above.