Arbitrability and its application in Colombia

Arbitrability is the criterion used to determine whether a dispute is capable of being decided by an arbitral tribunal and, at the same time, whether certain parties may validly resort to this dispute resolution mechanism. In Colombia, the Constitutional Court’s definition of arbitrability 1 , as adopted by legal doctrine, sets the limits of party autonomy by determining which disputes may be submitted to arbitration from an objective perspective and who may make use of arbitration from a subjective perspective. Put differently, arbitrability performs a delimiting function: not every matter that could be brought before a state court may be transferred to arbitral justice. This concept is linked to the exceptional nature of arbitration in Colombia, as arbitration does not generally replace the State’s permanent judicial system.

Furthermore, arbitration in Colombia has an explicit constitutional basis in Article 116 of the Political Constitution, which permits private individuals to be temporarily vested with the power to administer justice as arbitrators. Building on this constitutional foundation, both legislation and case law have established that arbitration is voluntary, temporary, exceptional and procedural in nature, although its mixed character, resulting from the combination of contractual and jurisdictional elements, has also been emphasised. Consequently, arbitrability is not a secondary issue but rather a structural condition for determining when arbitral justice may validly operate.

Arbitrability seeks to preserve the coherence of the justice system and to prevent matters reserved by law for state courts from being resolved by private individuals. In this respect, it functions as a mechanism for allocating jurisdiction between the permanent judicial system and arbitral justice. It also safeguards the exceptional nature of arbitration, since the role of private individuals in administering justice is temporary and cannot extend to every type of dispute.

Arbitrability also ensures that arbitration operates within the limits established by the Constitution, legislation and case law. Under Law 1563 of 2012, the general rule in domestic arbitration is that disputes concerning freely disposable rights, or matters expressly authorised by law, may be submitted to arbitration. Arbitrability therefore serves to distinguish, on the one hand, matters that are generally capable of disposal, particularly those of a patrimonial nature, and, on the other hand, matters that are non-disposable or reserved by law and therefore may not be submitted to arbitration unless expressly authorised by legislation.

a. Constitutional and legal framework

The Colombian regime is grounded in a clear constitutional basis: arbitrators administer justice through the parties’ authorisation and within the limits established by law. Constitutional case law  2  has emphasised that party autonomy is the central pillar of arbitration, which explains its voluntary nature. The same jurisprudence has generally rejected mandatory arbitration, subject only to specific exceptions in the field of collective labour disputes. In addition, the arbitral function is temporary, as an arbitrator’s authority comes to an end once the dispute has been resolved within the prescribed period.

From a statutory perspective, Article 1 of Law 1563 of 2012 defines arbitration as an alternative dispute resolution mechanism through which parties refer disputes concerning freely disposable matters, or matters authorised by law, to arbitrators. The same provision states that arbitration is governed by principles including impartiality, competence, efficiency, equality, orality, publicity and due process. For domestic arbitration, this represented an evolution from the former criterion of “compromisable matters”, as it retained the reference to disposable matters while introducing a separate basis for matters expressly authorised by the legislature. As a result, objective arbitrability in Colombia now has two gateways: free disposal and legal authorisation.

b. Substantive limits of arbitrability

Although the statutory formulation is broad, not every dispute is arbitrable. The courts have consistently 3  excluded matters such as personal status, the rights of legally incapacitated persons and rights that the law prohibits their holder from disposing of. Matters involving public policy, national sovereignty or the constitutional order have likewise been regarded as falling outside the scope of arbitration, as they are reserved to the State’s judicial authorities.

In administrative law matters, arbitrators may not rule on the legality of administrative acts issued in the exercise of exceptional governmental powers, nor may they suspend their effects on an interim basis, as such powers belong exclusively to the administrative courts. However, it is constitutionally permissible for arbitrators to decide on the exclusively financial consequences of such acts, provided that their validity is not challenged.

Other matters excluded from arbitration by case law include disputes concerning authors’ moral rights (the Constitutional Court held in Judgment C-155 of 1998 that authors’ moral rights constitute a fundamental right and form part of the author’s integrity and personality, making them inalienable and non-negotiable), certain invalidity actions in the field of industrial property (actions seeking the nullification of patents fall within the jurisdiction of the Council of State), and, as a general rule, collective actions due to the nature of their effects. Such actions are regulated by Law 472 of 1997, and the Supreme Court of Justice has held that arbitral tribunals lack jurisdiction because any judgment issued binds all persons who share the same factual circumstances giving rise to individual damages 4 .

It is important to note that these limits are not based on a closed and exhaustive list. Rather, arbitrability in Colombia has been progressively shaped by legislation and the higher courts, making it a dynamic and highly fact-specific area. This characteristic explains why certain matters have evolved over time from being disputed or excluded to becoming accepted in arbitration.

c. Matters that may be submitted to arbitration

The general rule is broad and remains favourable to the arbitrability of patrimonial disputes and matters involving rights that parties may freely dispose of. Even in areas that were initially considered non-disposable, legislative and regulatory developments have expanded the scope for arbitration. One of the most common and significant examples concerns disputes relating to the existence, effectiveness and validity of contracts, which may be submitted to arbitration by virtue of the doctrine of separability of the arbitration agreement and the statutory provisions allowing such matters to be decided by arbitrators. Under the doctrine of separability, the arbitration agreement is treated as a distinct legal agreement from the contract to which it relates. Accordingly, allegations concerning the non-existence, ineffectiveness or nullity of the underlying contract do not automatically affect the validity of the arbitration agreement.

Concrete examples of legislative expansion in favour of arbitration include challenges to resolutions adopted by shareholders’ meetings, partners’ meetings and boards of directors of commercial companies. Such disputes were previously reserved for the ordinary courts under former Article 194 of the Commercial Code but became capable of being referred to arbitration following its repeal by Law 1563 of 2012.

d. Third-party rights and arbitrability

Arbitration is founded upon the consent of the parties that enter into the arbitration agreement, and its subjective scope is therefore generally governed by the principle of privity of contract (res inter alios acta). Article 116 of the Colombian Constitution only empowers arbitrators to decide disputes between those who have validly consented to submit to this exceptional jurisdiction. Accordingly, an arbitral award cannot, in principle, bind or affect the rights of persons who are not parties to the arbitration agreement.

In relation to this general rule, Law 1563 of 2012 distinguishes between two situations with different consequences. First, Article 36 regulates the joinder of necessary parties who have not signed the arbitration agreement, namely those individuals for whom the award would produce res judicata effects. In such circumstances, the law requires them to be personally notified and given the opportunity to adhere to the arbitration agreement; if they refuse, the agreement ceases to have effect even in relation to the original signatories. Secondly, Article 37 regulates the participation of genuine third parties (including third-party notices, guarantors, interveners with an independent interest and supporting interveners), referring to the rules contained in the General Code of Procedure and establishing special rules for specific cases. These include the joinder of a guarantor who does not expressly object to the existence of the arbitration agreement 5 .

Colombian and comparative legal scholarship has also debated whether arbitration agreements may be extended to non-signatories where their conduct demonstrates implied consent, or under the group of companies doctrine where affiliated companies have actively participated in the negotiation, performance or termination of the contract containing the arbitration clause 6 . This doctrine has, however, been developed primarily through international arbitral jurisprudence, as there are currently no Colombian judicial precedents directly addressing this issue.

The principal Colombian judicial authority on the issue is Constitutional Court Judgment C-163 of 1999, in which the Court distinguished third parties from necessary parties, holding that the effects of an arbitral award do not automatically extend to the former and that it is therefore reasonable for arbitral proceedings to continue without their participation 7 .

This tension between the contractual nature of arbitration and the protection of third-party rights largely explains why certain matters remain excluded from arbitration, as outlined above. Ultimately, the protection of third-party rights operates as a limit on arbitrability, ensuring that arbitral justice, being both temporary and exceptional, does not deprive individuals who have not chosen arbitration of their procedural safeguards.

In the same vein, it is important to refer to the development of enforcement arbitration in Colombia. This discussion began with Constitutional Court Judgment C-294 of 1995, in which the Court held that it was not permissible to argue that matters arising in enforcement proceedings were inherently excluded from arbitration and that, where an obligation could be waived or settled, the parties could submit the dispute to arbitrators under the conditions established by law. For many years, however, the prevailing view was that existing arbitral proceedings were essentially declaratory in nature and that there was insufficient special regulation to permit arbitral enforcement proceedings more generally. This changed with Law 2540 of 2025, which introduced enforcement arbitration and significantly expanded the legal role of arbitration in Colombia.

This development further demonstrates that arbitrability plays a central role in defining the scope of arbitration as a mechanism for the administration of justice in Colombia. The regime combines a constitutional foundation with a statutory framework that permits arbitration of matters involving freely disposable rights and matters expressly authorised by law, while maintaining certain reservations in relation to non-disposable matters. At the same time, it should be recognised that arbitrability in Colombia has not remained static. Rather, it has been an area of continual legislative and judicial development, requiring careful analysis of each dispute on a case-by-case basis.