This Country Answer reflects the state of the law as of 31 December 2012. Please refer to the explanations in the chapter entitled 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, which was declared unconstitutional by the Supreme Court on 6 Oct. 1988. However, the Convention was not denounced and was later 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 and/or (b) commercial relationships?

Colombia approved 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. Colombia has adopted the territoriality approach, whereby all awards rendered in Colombia are considered domestic and consequently not subject to recognition proceedings. However, if parties to an international arbitration seated in Colombia waive their right to set the award aside, then the award must be recognized in Colombia prior to enforcement there.

Conversely, arbitral awards rendered outside Colombia are considered foreign and must be recognized by a competent Colombian authority in order to be enforceable in Colombia.

(Source: Law No. 1563 of 2012, Arts. 111.2(2) and 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 No. 39 of 1990, which enacts the New York Convention.

(ii) Law on National and International Arbitration, Law No. 1563 of 12 July 2012, published in the Diario Oficial, Year CXLVII. No. 48489 on 12 July 2012, Arts. 111-116. The provisions of the new law relating to international arbitration were inspired by the UNCITRAL Model Law on International Commercial Arbitration. Art. 114 provides that Law No. 1563 of 2012 and the international conventions and treaties to which Colombia is a contracting State supersede 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) for recognition purposes. It must be noted that this reflects the recent position adopted by the Supreme Court of Justice, albeit under the previous arbitration law, in the Drummond and Petrotesting cases, where it held that conditions set forth in the CPC, which are substantially more onerous than those of the New York Convention, shall not apply to the recognition or enforcement of foreign awards.

Recognition and enforcement proceedings filed after the date of entry into force of Law No. 1563 of 2012, i.e. 12 Oct. 2012, are governed by that law. For information on the law governing recognition and enforcement proceedings in Colombia prior to 12 Oct. 2012, please see the first edition of this Guide. The new law is too recent to have given rise to any relevant case law as yet. All decisions of Colombian courts referred to in this Country Answer were issued under the arbitration regime prior to Law No. 1563 of 2012.

After a foreign arbitral award has been recognized in Colombia, enforcement may be sought before the competent judicial authority described in Art. 68. The general rules of the CPC or the Administrative Procedure Code ('CCA'- Código de Procedimiento Administrativo y de lo Contencioso Administrativo, enacted by Law No. 1437 of 18 Jan. 2011, published in the Diario Oficial, Year CXLV. No. 47956 on 18 Jan. 2011) dealing with enforcement apply.

(Sources: Law No. 1563 of 2012, Arts. 68 and 111-116; Supreme Court of Justice, 19 Dec. 2011, Drummond Ltd. v. Ferrovías y Ferrocarriles Nacionales de Colombia S.A. FENOCO; Supreme Court of Justice, 27 Jul. 2011, Petrotesting Colombia S.A. y Southeast Investment Corporation v. Holsan Oil S.A.)

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 in Colombian law setting a limitation period for the commencement of legal proceedings for the recognition of foreign awards. Once recognition is granted, the statute of limitations applicable to legal proceedings for the enforcement of domestic judgments will apply, by analogy, to foreign awards. The relevant limitation period is five (5) years from the date on which the Supreme Court or the Council of State 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?

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?

Art. 68 of Law No. 1563 of 2012 assigns jurisdiction for recognition to the Civil Chamber of the Corte Suprema de Justicia, while jurisdiction over enforcement (once recognition has been granted) lies with the local juez civil del circuito, in accordance with the general rules of procedure of the CPC.

However, when an arbitral tribunal seated outside Colombia issues an award involving a Colombian public entity or an entity authorized to exercise Colombian public authority, the Sala Plana de la Sección Tercera del Consejo de Estado has jurisdiction over recognition of the award. In this case, enforcement (once recognition has been granted) may be sought before the juez administrativo, as determined by the CCA.

(Sources: Law No. 1563 of 2012, Arts. 63, 68 and 113; CPC, Arts. 12-24 and 25-4; CCA, Arts. 152.7, 155.7, 156.4, 157 and 297-299.)

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 civil or administrative courts are vested with jurisdiction for enforcement (see Q.7 above for the competent enforcement authority when a Colombian public entity is involved). 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, and (iv) territorial criteria (e.g. domicile of respondent, place of performance of the agreement).

(Sources: Law No. 1563 of 2012, Arts. 68 and 111; Law No. 39 of 1990, Arts. II and IV; CPC, Arts. 14-24; CCA, Arts. 152.7, 155.7, 156.4 and 157.)

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 must be served with notice, heard, and may request and submit evidence.

(Sources: Law No. 1563 of 2012, Art 115; Supreme Court of Justice, 19 Dec. 2011, Drummond Ltd. v. Ferrovías y Ferrocarriles Nacionales de Colombia S.A. FENOCO; Supreme Court of Justice, 26 Jan. 1999, Merck & Co. Inc., Merck Frosst Canada Inc. y Frosst Laboratories Inc. v. Tecnoquímicas S.A., Y.B. Comm. Arb. XXVI (2001) 755-66.)

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 and unappealable.

However, it should be noted that any final judicial decision is subject to recurso extraordinario de revisión. The grounds for this recourse are very specific, limited and in the civil court it must be sought within two (2) years from the date on which the decision became final; in the administrative court, depending on the grounds relied upon, the recourse must be filed within one (1) year of the decision pursuant to Art. 251 of the CCA. The grounds for granting the recourse are as follows: (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.

Once the award has been recognized, the general rules of civil procedure, as set forth in the CPC, apply to the enforcement proceedings.

(Sources: Law No. 1563 of 2012, Art. 113; CPC Arts. 497-512; CCA, Arts. 248-255 and 299.)

(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 has been granted, the party seeking enforcement may 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 will occur only after the conclusion of the proceedings. In the event of an appeal, the decision granting or revoking the provisional measures will not be suspended.

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

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.)?

Art. 111.2(1) of Law No. 1563 of 2012 provides that parties seeking enforcement must produce the award or a copy of the award. Art. 115 requires parties to submit an application for enforcement to the competent authority. Accordingly, a party seeking enforcement must ensure its request satisfies the conditions of validity set forth for court requests in Arts. 75 and 77 of the CPC and Art. IV of Law No. 39 of 1990. 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 of documentation evidencing its incorporation and existence; and (v) any documents that the party seeking recognition and enforcement intends to use as evidence.

(Sources: Law No. 1563 of 2012, Arts. 111 and 115; Law 39 of 1990, Art. IV; CPC, Arts. 75 and 77; Supreme Court of Justice, 19 Dec. 2011, Drummond Ltd. v. Ferrovías y Ferrocarriles Nacionales de Colombia S.A. FENOCO; Supreme Court of Justice, 27 Jul. 2011, Petrotesting Colombia S.A. y Southeast Investment Corporation v. Holsan Oil S.A.; 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) 755-66.)

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

It is necessary to submit (i) the award in Spanish and (ii) the arbitration agreement in Spanish.

However, it should be noted that Law No. 1563 of 2012 does not mention the need to provide a copy of the arbitration agreement. It remains for the Colombian courts to clarify whether this omission can be interpreted as a move to ease requirements for recognition and enforcement in Colombia.

(Sources: Law 1563 of 2012, Art. 111; Law No. 39 of 1990, Arts. II and IV.)

(c) Are originals or duly certified copies required?

According to Law No. 39 of 1990, original or certified copies are required.

Law No. 1563 of 2012 does not distinguish between ordinary and certified copies. However, as noted in Q.12(b) above, it remains for the Colombian courts to clarify whether this omission is intended to make the recognition and enforcement process in Colombia more flexible.

(Sources: Law 1563 of 2012, Art. 111.2(1); Law No. 39 of 1990, Art. IV-1.)

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

Only one original or one certified copy (see Q.12(c) above on the requirement to file certified copies in the wake of Law No. 1563 of 2012).

(Sources: Law No. 1563 of 2012, Art. 111.2(1); Law No. 39 of 1990, Art. IV-1.)

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

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

(Source: CPC, Art. 117.)

13.

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

Law No. 1563 of 2012 provides that the competent Colombian authority may require the moving party to provide a Spanish translation of the arbitral award. It is highly probable that a Colombian court seized of recognition or enforcement proceedings will request a Spanish translation of the arbitral award.

(Sources: Law No. 1563 of 2012, Art. 111.2(1); Law No. 39 of 1990, Art. IV-2.)

(b) If yes, into what language?

Spanish.

(Sources: Colombian National Constitution of 1991, Art. 10 (Spanish is the official language of Colombia); Law 1563 No. of 2012, Art. 111.2(1); Law No. 39 of 1990, Art. IV-2.)

(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)?

Although Law 1563 of 2012 is silent on this matter, Law No. 39 of 1990 requires the translation to be made by a sworn translator in Colombia or by a Colombian diplomatic or consular agent.

(Source: Law No. 39 of 1990, Art. IV-2.)

(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)?

Law No. 39 of 1990 requires the full translation of the arbitral award and of the arbitration clause. Law No. 1563 of 2012 does not address this point.

(Sources: Law No. 39 of 1990, Arts. II and IV; CPC, Art. 85; Supreme Court of Justice, 26 Jan. 1999, Merck & Co. Inc., Merck Frosst Canada Inc. y Frosst Laboratories Inc. v. Tecnoquímicas S.A., Y.B. Comm. Arb. XXVI (2001) 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?

Yes, Law No. 1563 of 2012 contains a provision -although poorly drafted- very similar to Art. VI of the New York Convention (Law No. 39 of 1990). It provides that if an application for the setting aside or suspension of the award is made before the competent authority at the place of arbitration, the competent Colombian authority may stay recognition proceedings and, at the request of the party seeking recognition of the award, may order the other party to provide security.

(Sources: Law No. 1563 of 2012, Art. 112; Law No. 39 of 1990, Art. VI.)

(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 proceedings 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?

Not necessarily; a competent Colombian authority has discretionary powers to stay legal proceedings and request the provision of security.

(Source: Law No. 1563 of 2012, 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?

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

(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 concerning 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 are therefore available to the public.

Arguably, the parties involved 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, the court has discretion to grant or refuse such a request.

(Sources: Law No. 1563 of 2012, Art. 115; CPC, Arts. 109, 125 and 127.)

(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). Decisions of the Council of State are published in the Anales del Consejo de Estado. 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: Colombian National Constitution of 1991, 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 held in the Drummond case that, despite their name, partial awards may be analogous to final judgments due to their nature and scope, since they definitively dispose of claims and counterclaims between the parties. Therefore, a party may obtain recognition and enforcement of a partial award, even if a final award has not been rendered.

It must be noted that Art. 111 of Law No. 1563 of 2012 does not distinguish between interim or partial and final awards.

(Source: Supreme Court of Justice, 19 Dec. 2011, Drummond Ltd. v. Ferrovías y Ferrocarriles Nacionales de Colombia S.A. FENOCO.)

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. 493-504.)

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 guidance from the Supreme Court on this matter. 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?

Art. 112(a)(v) of Law No. 1563 of 2012 provides that recognition may be denied when the award has been set aside or suspended by the competent authority at the seat of the arbitration.

(Source: Law No. 1563 of 2012, 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