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

Colombia signed the New York Convention on 24 Dec. 1979, which entered into force on 20 Nov. 1990 through Law 39 of 1990.

(Source: Diario Oficial, Year CXXVII. No. 39587, 20 Nov. 1990.)

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

(a) reciprocity and/or (b) commercial relationships?

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

(Source: Law No. 39 of 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 is 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. All awards rendered by international arbitral tribunals seated in Colombia are considered domestic and thus automatically enforceable. However, if the parties to an international arbitration seated in Colombia have waived their right to challenge the award, such award becomes subject to recognition proceedings in Colombia, and the New York Convention applies to them.

(Source: Law 1563 of 2012, Arts. 111.2(2), 111.3.)

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 16 of 1981, which ratified the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards.

(ii) Law 44 of 1986, which ratified the Inter-American Convention on International Commercial Arbitration (the ‘Panama Convention’).

(iii) Law 39 of 1990, which ratified the Convention on the Recongition and Enforcement of Foreign Arbitral Awards (the ‘New York Convention’).
(iv) Law 267 of 1996, which ratified the Convention on the Settlement of Investment Disputes between States and Nationals of other States (the ‘ICSID Convention’).
(v) Law 1563 of 2012 (the ‘Arbitration Statute’). The international arbitration provisions of the Arbitration Statute are based on the UNCITRAL Model Law on International Commercial Arbitration.

The Arbitration Statute governs recognition and enforcement proceedings commenced after its entry into force, regardless of the date of the arbitral award or when recognition and enforcement is sought.

In addition, the general rules of enforcement of judgments of the General Code of Procedure (Código General del Proceso, ‘CGP’) or the Administrative Procedure Code (Código de Procedimiento Administrativo y de lo Contencioso Administrativo, ‘CPACA’) apply to the enforcement of foreign arbitral awards.

(Source: Arts. 68 and 111–116, Arbitration Statute; Supreme Court, 19 Dec. 2011, Drummond Ltd. v. Ferrovías y Ferrocarriles Nacionales de Colombia S.A. FENOCO; Supreme Court, 27 July 2011, Petrotesting Colombia S.A. y Southeast Investment Corporation v. Holsan Oil S.A.; Supreme Court, 19 Nov. 2013, Poligráfica C.A. v. Colombia Tecnología Ltda.; Supreme Court, 29 Oct. 2015, HTM LLC v. Fomento de Catalizadores Foca S.A.S. (HTM LLC I); Supreme Court, 24 June 2016, HTM LLC v. Fomento de Catalizadores Foca S.A.S. (HTM LLC II); Supreme Court, 18 Aug. 2016, Tampico Beverages Inc. v. Productos Naturales de la Sabana S.A. Alquería; Supreme Court, 7 Sept. 2016, Egesur S.A. v. Consorcio Pisco)

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?

Colombian law does not provide a limitation period for the recognition of arbitral awards. However, once recognition is granted, the statute of limitations for the enforcement of domestic judgments applies, by analogy, to foreign awards. Under Colombian law, there is a five-year limitation period for court judgments, running from the date the judgment became final. Thus, enforcement of foreign arbitral awards will be subject to a five-year limitation period, starting from the date of recognition of the award.

(Source: Civil Code, Arts. 15, 2535, 2536)

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

See Q.6(a) above for the limitation period applicable to enforcement proceedings.

D. National courts and court proceedings

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

The Arbitration Statute confers jurisdiction over recognition and enforcement proceedings to different judicial authorities.

The Civil Cassation Chamber of the Colombian Supreme Court (Corte Suprema de Justicia) has exclusive jurisdiction over applications for the recognition of foreign arbitral awards involving private parties. If a public entity or an entity conducting administrative duties is a party to the arbitration, the Sala Plana de la Sección Tercera del Consejo de Estado (Council of State) will have exclusive jurisdiction.

Once an arbitral award involving private parties has been recognized, applications for enforcement must be filed before the local circuit civil court (juez civil del circuito), in accordance with the general rules of procedure of the CGP. If a public entity or an entity conducting administrative duties is a party to the arbitration, the local administrative court (juez administrativo) or administrative tribunal (tribunal administrativo) will have jurisdiction in accordance with the competence rules of the CPACA.

(Source: Arbitration Statute, Arts. 63, 68, 113; CGP, Arts. 15, 30; CPACA, Arts. 152, 155.)

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.)?

Under Colombian law, there are no jurisdictional requirements for the recognition of foreign arbitral awards.

Once recognition has been granted, enforcement of foreign arbitral awards must be sought before local civil or administrative courts (see Q.7 above). Applications must be filed before the civil court,the administrative court or tribunal of the domicile of the respondent (see Q.7 above). If the respondent does not have a domicile in Colombia, the competent authority will be the civil or administrative court of the place of business of the respondent in Colombia. Failing that, the competent civil or administrative court will be seated in the domicile of the applicant.

(Source: Arbitration Statute, Arts. 68, 111; CGP, Arts. 15, 28; CPACA, Arts. 152, 155.)

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

The decision for recognition is obtained through inter partes proceedings. The respondent must be served with notice, heard, and may request and submit evidence.

(Source: Arbitration Statute, Art. 115.)

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 of a foreign arbitral award is final.

However, under Colombian law, any final judicial decision is subject to recurso extraordinario de revisión (application for revision). The grounds for revision are exhaustive and, broadly speaking, concern the discovery of new facts or evidence material to the outcome of the case. For decisions on recognition involving private parties, an application for revision must be filed within two years (i) after the date on which the decision was rendered, or (ii) after the new fact was discovered. For decisions on recognition concerning public entities or entitities conducting administrative duties, the application for revision must be filed within one year after the date on which the decision was rendered.

Additionally, decisions on the recognition of foreign arbitral awards are subject to acción de tutela (application for the protection of constitutional rights). The grounds for acción de tutela include, inter alia, the manifest disregard of law, an error in the assessment of evidence, and other material due process violations.

(Source: Arbitration Statute, Art. 113; CGP Arts. 354-360; CPACA, Arts. 248-251.)

(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)?

Enforcement proceedings cannot be commenced without a prior declaration on recognition.

Provisional measures (e.g. freezing of assets) can be requested, either at the time of the request for enforcement or thereafter. However, foreclosure will occur only at the end of the proceedings. In the event of an appeal, the decision confirming or reversing order for provisional measures will not be suspended.

(Source: Arbitration Statute, Art. 111(3); CGP, Arts. 422, 442, 448, 590.)

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 Arbitration Statute (Art. 111.2(1)) only requires the party applying for recognition and enforcement to supply the award or a copy of the award.

However, in the 2015 HTM LLC I case, the Colombian Supreme Court refused to entertain an application for recognition and enforcement of a foreign arbitral award, because the moving party had failed to provide a copy of the arbitration agreement. The Court opined that, in addition to the requirements of Art. 111 of the Arbitration Statute, the party seeking recognition and enforcement must also fulfil the requirements of Art. II of Law 39 of 1990, which mirrors Art. II of the New York Convention.

By contrast, in the 2016 Tampico decision, the Colombian Supreme Court was of the view that the Arbitration Statute – by simply requiring a copy of the arbitral award – provides less stringent (and ultimately more favorable) requirements for the recognition and enforcement regime than those of Art. IV of the New York Convention. Therefore, by virtue of the most favourable provision of Art. VII of the New York Convention, the Court held that a party seeking recognition and enforcement of an arbitral award need not furnish the arbitration agreement or of a copy thereof. According to the Court, the arbitral award (or a copy thereof), as required by the Arbitration Statute, suffices.

The Supreme Court has consistently followed this position in later decisions. In the Egesur case, the Colombian Supreme Court granted the recognition of a foreign arbitral award in a case in which claimant had only presented a copy of the arbitral award. Although there was no in-depth discussion on this question, the Court emphasized that the only requirements for the recognition and enforcement of foreign arbitral awards are those listed in Art. 111.2(1) of the Arbitration Statute.

Similarly, in the 2017 Tampico decision, the Supreme Court held that the more favourable provisions of Art. 111.2(1) of the Arbitration Statute prevail over those of Art. IV of the New York Convention.

On the other hand, an application for recognition must meet the formal requirements for applications before civil courts under Arts. 82, 83 and 84 of the CGP. Therefore, a party applying for recognition and enforcement must also furnish: (i) a power of attorney; (ii) a certificate of incorporation, if any of the parties involved is a corporation; and (iii) any other supporting documents that the party seeking recognition and enforcement may intend to use as evidence.

(Source: Arbitration Statute, Arts. 111, 115; Law 39 of 1990, Art. IV; CGP, Arts. 82-84; Supreme Court, 19 Dec. 2011, Drummond Ltd. v. Ferrovías y Ferrocarriles Nacionales de Colombia S.A. FENOCO; Supreme Court, 27 Jul. 2011, Petrotesting Colombia S.A. y Southeast Investment Corporation v. Holsan Oil S.A.; Supreme Court, 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) 755–66; Supreme Court, 29 Oct. 2015, HTM LLC v. Fomento de Catalizadores Foca S.A.S. (HTM LLC I); Supreme Court, 24 June 2016, HTM LLC v. Fomento de Catalizadores Foca S.A.S. (HTM LLC II); Supreme Court, 18 Aug. 2016, Tampico Beverages Inc. v. Productos Naturales de la Sabana S.A. Alquería; Supreme Court, 11 July 2017, Tampico Beverages Inc. v. Productos Naturales de la Sabana S.A. Alquería.)

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

The Arbitration Statute does not explicitly require the party applying for recognition and enforcement to provide a copy of the arbitration agreement.

As noted in Q.12(a) above, the Arbitration Statute only requires that the party applying for recognition and enforcement provide the award or a copy of the award. Accordingly, there is no requirement that (i) the entire contract containing the arbitration clause, or (ii) the arbitration clause be furnished.

(Source: Arbitration Statute, Art. 111.2(1).)

(c) Are originals or duly certified copies required?

As noted in Q.12(a) and (b) above, according to the Arbitration Statute, the party applying for recognition and enforcement must supply the award or a copy of the award. There is no requirement that the copies be ‘duly certified’. However, the Colombian Supreme Court typically examines whether the award for which recognition is sought has been apostilled.

(Source: Arbitration Statute, Art. 111.2 (1); Art. 260, Civil Procedure Code; Art. 251, General Code of Procedure; Colombian Supreme Court, 23 Mar. 2018, Innovation Worldwide DMCC. v. Carboexco C.I. Ltda).

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

Only one original or copy (see Q.12(a) above).

(Source: Arbitration Statute, Art. 111.2(1).)

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

General rules of civil procedure apply. The competent court deciding on the recognition will return the originals at the conclusion of the procedure. The competent court deciding on the enforcement will return the originals at the conclusion of the procedure or when the obligations set forth in the document in question have been complied with (whichever occurs first).

(Source: CGP, Art. 116.)

13.

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

The Arbitration Statute provides that the competent court may require the moving party to provide a Spanish translation of the arbitral award. As a matter of Colombian Civil Procedure Law, court proceedings must be conducted in Spanish. In deciding applications for recognition and enforcement of foreign awards not in Spanish, the Colombian Supreme Court verified whether the applicant had submitted a Spanish translation of the arbitral award.

(Source: Arbitration Statute, Art. 111.2(1); CGP, Art. 104; Supreme Court, 23 Mar. 2018, Innovation Worldwide DMCC. v. Carboexco C.I. Ltda.)

(b) If yes, into what language?

Spanish.

(Source: Arbitration Statute, Art. 111.2(1); CGP, Art. 104.)

(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)?

As noted in Q.12(a), acording to the Arbitration Statute, the party applying for recognition and enforcement must supply the award or a copy of the award. There is no requirement that the translations be certified.

(Source: Arbitration Statute, Art. 111.2(1).)

(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)?

The Arbitration Statute requires that the award be translated into Spanish (if originally drafted in another language). Therefore, a party seeking recognition and enforcement is likely to be required to furnish a translated copy of the entire award.

As noted in Q.12(a), according to the Arbitration Statute, the party applying for recognition and enforcement must supply the award or a copy of the award. The Arbitration Statute does not require the moving party to provide the arbitration agreement, or a translation thereof.

(Source: Arbitration Statute, Art. 111.2(1); CGP, Art. 104.)

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?

Yes, according to the Arbitration Statute, a Colombian court may stay recognition proceedings if an application for the setting aside or suspension of the award has been made before the competent authority at the place of arbitration.

(Source: Arbitration Statute, Art. 112)

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

Aside from pending set-aside proceedings at the place of the arbitration, there are no other grounds to stay legal proceedings for recognition and enforcement of foreign arbitral awards under Colombian law. However, enforcement proceedings will be stayed if the party against whom enforcement is sought is an insolvent debtor subject to a restructuring plan.

(Source: Law 1116 of 2006, Art. 20)

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

No, under the Arbitration Statute, Colombian courts have discretionary authority to stay legal proceedings and request the provision of security.

(Source: Arbitration Statute, Art. 112.)

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?

Yes, documents filed in recognition and enforcement proceedings are part of the public record. The record is available for review under the conditions set forth in the CGP. Generally, parties involved in recognition and enforcement proceedings should have no expectation of confidentiality. However, they could arguably request that the court restrict access to the files, provided the documents in question involve trade secrets or similarly sensitive materials. The court has discretion to grant such requests.

(Source: CGP, Arts. 107, 114, 123.)

(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 concerning hearings in recognition proceedings. Although proceedings at the Colombian Supreme Court do not usually include the holding of hearings, general rules of procedure require hearings for the collection of certain types of evidence. To the extent that collection of evidence is necessary, the recognition procedure may involve such hearings. Although participation in the hearings is restricted to the parties to the proceeding, transcripts of the hearings form part of the record and are therefore available to the public.

Parties involved in recognition and enforcement proceedings can request the court to 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. The court has discretion to grant such requests.

(Source: Arbitration Statute, Art. 115; CGP, Arts. 107, 114, 123.)

(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 of the Colombian Supreme Court and Council of State are often published online (selected decisions are published on the basis of their novelty and importance). Parties to enforcement and recognition proceedings can request that excerpts of the decision concerning trade secrets or similarly sensitive information be redacted; however, the names of the parties are always published.

H. Other issues

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

The Arbitration Statute does not distinguish between interim, partial and final awards for the purposes of recognition and enforcement proceedings in Colombia. In the AAL Group Limited and HTM LLC II cases, the Colombian Supreme Court held that partial awards can be subject of recognition and enforcement proceedings under the Arbitration Statute because they dispose of one of more claims and/or issues between the parties. In HTM LLC II, the Supreme Court recognized a ‘partial award on jurisdiction’ which ruled on the respondent’s objections to the jurisdiction of the arbitral tribunal in the context of a commercial agency dispute. In the same vein, in AAL Group Limited, the Supreme Court recognized a ‘partial final award’ which ruled on certain claims relating to a series of helicopter lease agreements concluded between the parties.

It is worth noting that in the 2011 Drummond case – governed by the previous arbitration framework – the Supreme Court held that partial awards could be recognized and enforced in Colombia. Therefore, as a matter of Colombian law, it is clear that a party may obtain recognition and enforcement of a partial award, even if a final award has not yet been rendered.

(Source: Arbitration Statute, Art. 111(1); Supreme Court, 19 Dec. 2011, Drummond Ltd. v. Ferrovías y Ferrocarriles Nacionales de Colombia S.A. FENOCO; Supreme Court, 24 June 2016, HTM LLC v. Fomento de Catalizadores Foca S.A.S. (HTM LLC II); Supreme Court, 18 Aug. 2016, Tampico Beverages Inc. v. Productos Naturales de la Sabana S.A. Alquería; Supreme Court, 30 Oct. 2017, AAL Group Limited v. Vertical de Aviación S.A.S.)

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)?

The Arbitration Statute makes no distinction between the recognition of monetary and non-monetary arbitral awards. As regards enforcement of non-monetary awards, the general rules of procedure for the enforcement of non-monetary judgments 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: CGP, Arts. 422-445.)

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

The Arbitration Statute does not explicitly prevent a moving party from obtaining recognition and enforcement of only part of the relief granted in a foreign award. However, the Supreme Court has not yet ruled on this issue.

Under Colombian law, the recognition and enforcement of an arbitral award entails the enforcement of a claim for money or specific performance. Generally, claims for money or specific performance are waivable. Therefore, a moving party may request the court to recognize and enforce the award in whole, or only in part. However, failure to enforce the award in full will only be construed as a partial waiver of the claims after the applicable statute of limitations has elapsed.

(Source: Arbitration Statute, Art. 112(a)(v); Civil Code, Arts. 15, 2535.)

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?

Art. 112(a)(v) of the Arbitration Statute provides that recognition of a foreign arbitral award ‘may’ be denied when the award has been set aside or suspended by the competent authority at the seat of the arbitration.

(Source: Arbitration Statute, Art. 112(a)(v).)

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.

Country Rapporteur: Fernando Mantilla-Serrano

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