This Country Answer reflects the state of the law as of 18 July 2008. Please refer to the explanations in the chapter entitled Disclaimer and Preliminary Note.

A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Republic of Colombia.

2. Date of entry into force of the New York Convention

24 December 1979. Colombia approved the Convention by Law No. 37 of 1979. This Law was declared unconstitutional by the Supreme Court on 6 Oct. 1988. However, the Convention was not denounced, and later it was re-enacted as Law No. 39 of 20 Nov. 1990 (published in the Diario Oficial, Year CXXVII. No. 39587 on 23 Nov. 1990).

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity

(b) commercial relationships

Colombia approved the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards without any reservations.

(Source: Law No. 39 of 20 Nov. 1990, published in the Diario Oficial, Year CXXVII. No. 39587 on 23 Nov. 1990.)

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

No. Colombia adopted the territoriality approach, whereby all awards rendered in Colombia are considered as domestic awards. Conversely, awards rendered outside Colombian territory are considered foreign.

(Source: Law No. 315 of 1996, published in the Diario Oficial, Year CXXXII. No. 42878 on 16 Sept 1996, Art. 3.)

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

(i) Law No. 39 of 1990, which enacts the New York Convention. (ii) Arts. 693 to 695 of the Code of Civil Procedure ('CPC'-Código de Procedimiento Civil) enacted by Decree No. 1400 of 6 Aug. 1970 and Decree No. 2019 of 26 Oct. 1970. These articles deal with the recognition of foreign judgments. The provisions regarding the actual rules of procedure to be followed before the Colombian Supreme Court for obtaining recognition are applicable to foreign awards. (iii) Law No. 315 of 1996 (Art. 2), 'Law on International Arbitration', which refers to the international conventions and treaties to which Colombia is a contracting State. Once a foreign award has been granted recognition in Colombia, it is considered a local decision for the purposes of its enforcement, and therefore the general CPC rules of enforcement are applicable.

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

There is no specific provision regarding the limitation period applicable to the commencement of legal proceedings for the recognition of foreign awards under Colombian law. Once recognition is granted, however, the statute of limitations applicable to legal proceedings for the enforcement of domestic judgments will be applicable, by analogy, to foreign awards. The relevant limitation period is of five (5) years from the date on which the Supreme Court grants recognition.

(Source: Law No. 791 of 2002, published in the Diario Oficial, Year CXXXVIII. No. 45046 of 27 Dec. 2002, Art. 8.)

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

Not applicable.

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

For granting recognition, the Civil Chamber of the Supreme Court of Justice is the only competent authority. As regards actual enforcement (once recognition has been granted), the competent authority is determined in accordance with general rules of procedure.

(Source: CPC, Arts. 12 to 24, 25-4 and 695-7.)

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

There are no jurisdictional requirements, under Colombian legislation, except that the award must be made pursuant to a written arbitration agreement. Once recognition has been granted, local courts acquire jurisdiction for the purposes of enforcement. In order to determine which court is competent, the following criteria are to be taken into account: (i) identity of the parties, (ii) subject matter of the dispute, (iii) amount at stake, (iv) territorial criteria (e.g. domicile of respondent, place of performance of the agreement).

(Source: CPC, Arts. 14 to 24 and 695-7.)

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

The decision concerning recognition is obtained through inter partes proceedings. The respondent has to be served with notice, heard, and can request and submit evidence.

(Source: CPC, Art. 694.)

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

No, a decision on recognition is final. It cannot be appealed. However, it should be noted that any final decision rendered by the Supreme Court is subject to recurso extraordinario de revisión. The grounds for this recourse are very specific and limited and must be alleged within two (2) years from the date on which the decision became final. The grounds for granting the recourse are: (i) fraud in the proceedings (perjury, forgery of documentary evidence or collusion); (ii) due process violations (lack of notice of the proceedings and lack of proper representation if such irregularities were not subsequently cured); (iii) production of new evidence that would have modified the outcome of the decision, but was not produced by the moving party due to force majeure (Caso Fortuito) or the actions of the other party, and (iv) when the decision is null and void and not subject to appeal.

(Source: CPC, Arts. 379 to 381.)

(b) How many levels of appeal or recourse are available against this decision?

See Q.10(a) above.

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

Once recognition is granted, the party seeking enforcement can commence enforcement proceedings. Provisional measures (such as freezing of assets) can be requested, either at the time of the request for enforcement or thereafter, and the court will order them at the same time as ordering enforcement (mandamiento ejecutivo). However, realization of assets as such will take place only after the proceedings have concluded. If there is an appeal, the decision granting or revoking the provisional measures shall not be suspended.

(Source: CPC, Arts. 513 and 538.)

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

The application for recognition of a foreign award must comply with the requirements set forth in Arts. 75 and 77 CPC. Thus, it must contain the basic elements and documentation necessary for the validity of a court request, and must comply with the particular requirements set forth in Arts. 694 and 695 CPC. Therefore, it will be necessary to submit: (i) the arbitral award; (ii) the arbitration agreement; (iii) powers of attorney; (iv) if any of the parties involved is a corporation, a duly certified copy evidencing its incorporation and existence; and (v) any documents that the party seeking recognition and enforcement intends to use as evidence.

(Sources: CPC, Arts. 75, 77, 694 and 695; Supreme Court of Justice, 26 Jan. 1999, Merck & Co. Inc., Merck Frosst Canada Inc. y Frosst Laboratories Inc. v. Tecnoquímicas S.A., p. 8, published in Y.B. Comm. Arb. XXVI (2001) pp. 755-66.)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

It is necessary to submit: (i) the award in its entirety; and (ii) the arbitration clause in its entirety.

(Source: CPC, Art. 695; Supreme Court of Justice, 26 Jan. 1999, Merck & Co. Inc., Merck Frosst Canada Inc. y Frosst Laboratories Inc. v. Tecnoquímicas S.A., published in Y.B. Comm. Arb. XXVI (2001) pp. 755-66.)

(c) Are originals or duly certified copies required?

Original or certified copies are required.

(Sources: Law No. 39 of 1990, Arts. II and IV; CPC, Art. 694-3; Supreme Court of Justice, 26 Jan. 1999, Merck & Co. Inc, Merck Frosst Canada Inc. y Frosst Laboratories Inc. v. Tecnoquímicas S.A., published in Y.B. Comm. Arb. XXVI (2001) pp. 755-66.)

(d) How many originals or duly certified copies are required?

Only one original or certified copy.

(e) Does the authority or court keep the originals that are filed?

General rules of civil procedure apply. The Supreme Court will keep the originals until after the recognition procedure has concluded. The court seized of the enforcement will keep the originals on file until after the proceedings have been concluded or the obligations set forth in the corresponding document have been complied with (whichever occurs first).

(Source: CPC, Art. 117.)

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes.

(Source: CPC, Art. 695.)

(b) If yes, into what language?

Spanish.

(Source: CPC, Art. 695.)

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

Yes. The translation must be made by a sworn translator in Colombia or by a Colombian diplomatic or consular agent.

(Sources: Law No. 39 of 1990, Art. IV-2; CPC, Art. 695.)

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

(i) A full translation of the arbitral award is necessary. (ii) A full translation of the arbitration clause is necessary.

(Sources: CPC, Arts. 85 and 695; Supreme Court of Justice, 26 Jan. 1999, Merck & Co. Inc, Merck Frosst Canada Inc. y Frosst Laboratories Inc. v. Tecnoquímicas S.A., published in Y.B. Comm. Arb. XXVI (2001) pp. 755-66.)

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

With respect to suspension of the exequatur proceedings, pending setting aside proceedings abroad, there is no law or case law on this specific issue. However, the Supreme Court in the Merck case, refused enforcement of an interim award and held that an award needs to be final to be granted exequatur. Therefore, it may well be that the Supreme Court would consider that an award (even a final award) subject to setting aside proceedings is not final in accordance with the Convention and should not be enforced pending said proceedings.

It is worth noting that, under Colombian law, the filing of an application to set aside a domestic award does not suspend its enforcement (unless the party who filed the application so requests and posts a bond. State entities do not need to post a bond). Therefore, it is possible that, by analogy, the Supreme Court will apply the same rule to foreign awards.

Art. 331 CPC-the relevant provision regarding suspension of enforcement pending an action to set aside a domestic award-does not clearly indicate whether a party can obtain suspension of enforcement merely by posting a bond. The Supreme Court has never addressed this point, although some courts of appeal have considered that Art. 331 CPC grants them discretionary powers to suspend enforcement.

(Sources: CPC, Art. 331; Supreme Court of Justice, 26 Jan. 1999, Merck & Co. Inc, Merck Frosst Canada Inc. y Frosst Laboratories Inc. v. Tecnoquímicas S.A., published in Y.B. Comm. Arb. XXVI (2001) pp. 755-66.)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

There are no other grounds under Colombian law to stay legal proceedings for recognition and enforcement. However, enforcement of an award will be stayed if the party against whom enforcement is sought is an insolvent debtor subject to a restructuring plan.

(Source: Law No. 1116 of 27 Dec. 2006, published in the Diario Oficial, Year CXLII. No. 46494 of 27 Dec. 2006, Art. 20.)

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

Under Colombian law, the provision of security is a requirement for staying proceedings to set aside an award. Should the Supreme Court apply Art. 331 CPC by analogy and stay recognition proceedings, the provision of security would be necessary.

(Source: CPC, Art. 331.)

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

Third parties may request a copy of the records. Files of proceedings are available for public consultation. Arguably, the parties to the proceedings can jointly request that the court restrict access to the files, particularly if documents involve trade secrets or similar sensitive materials. However, it is within the court's discretion to grant such measures.

(Source: CPC, Arts. 115 and 127.)

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

Colombian law does not contain any provisions on hearings in recognition proceedings. However, general rules of procedure require hearings for the collection of certain types of evidence. Insofar as collection of evidence is possible in recognition proceedings, the recognition procedure may involve such hearings. Although participation in the hearings is restricted to the interested parties, transcripts of the hearings are included in the record and therefore are accessible to the public.

Arguably, the parties in a proceeding can jointly request that the court restrict access to the files, and thus to the transcripts of the hearings, particularly if they contain information regarding trade secrets or similar sensitive matters. However, it is within the courts' discretion to grant such measures.

(Source: CPC, Arts. 109, 125 and 127, 695.)

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

Decisions rendered by the Supreme Court of Justice may be published in the Gaceta Judicial (the judges select the decisions to be published on the basis of their novelty and importance). Arguably, the parties could request that parts of the decision concerning business secrets be redacted; however, the names of the parties are always published.

(Sources: National Constitution, Art. 228 (all acts for the administration of justice are public); Law No. 270 of 1996, published in the Diario Official, Year CXXXI. No. 42745, 15 Mar. 1996, Art. 198.)

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

The Supreme Court of Justice has held that partial and interim awards which do not adjudicate the merits of the dispute are not final and, therefore, cannot be the subject of recognition and enforcement proceedings.

(Source: Supreme Court of Justice, 26 Jan. 1999. Merck & Co. Inc, Merck Frosst Canada Inc. y Frosst Laboratories Inc. v. Tecnoquímicas S.A., p. 9. An application was filed (recurso de súplica) asking the Supreme Court to reconsider its decision. The decision was confirmed: Supreme Court of Justice, 1 Mar. 1999, Merck & Co. Inc, Merck Frosst Canada Inc. y Frosst Laboratories Inc. v. Tecnoquímicas S.A., published in Y.B. Comm. Arb. XXXVI (2001) pp. 755-66.)

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

It is possible to obtain recognition and enforcement of foreign awards granting non-monetary relief. General rules of procedure apply. Thus, Colombian courts can enforce awards for specific performance as well as order the party against whom enforcement is sought to abstain from a given course of action according to the terms of the award.

(Source: CPC, Arts. 493 to 504.)

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

Colombian law does not specify whether a party may obtain recognition and enforcement of only part of the relief granted in a foreign award, and there has been no decision by the Supreme Court in this respect. However, it is possible that if a specific part of the relief awarded were held to be ineffective, but could be severed from the rest of the relief granted, the award could be partially recognized and enforced.

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

No decision in this respect has been rendered by the Supreme Court.

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

There are no unusual registration duties or taxes to be paid in relation to the recognition and/or enforcement of foreign awards in Colombia. However, it should be noted that the Supreme Court, in a decision granting recognition of an award, applied both the requirements set forth in the New York Convention and national procedural requirements for the recognition and enforcement of foreign awards.

(Source: Sunwards Overseas S.A. v. Servicios Marítimos Limitada Semar, 20 Nov. 1992, Y.B. Comm. Arb. XX (1995) p. 651.)

Country Rapporteur: Fernando Mantilla-Serrano.

Other contributors: Ximena Herrera, Nathalia Giraldo.