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.
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