Colombia is a civil law jurisdiction heavily influenced by French law. The Civil Code of Colombia is based on the French Civil Code. However, the presence of multinational companies in Colombia, mostly from common law jurisdictions, has resulted in the use of terminology and practices, particularly in commercial contracts, pertaining to these common law jurisdictions.
For commercial contracts, the main legislative bodies are contained in the Civil Code and the Commercial Code. The latter, in addition to regulations on all types of commercial contracts, contains:
- the basic set of rules for the incorporation and operation of corporations;
- regulations on negotiable instruments;
- provisions on intellectual property and unfair competition; and
- generally, all regulations related to the activities of merchants.
Other national laws have been passed to regulate matters that include:
- class actions;
- government contracts;
- banking and finance; and
- protection of the environment.
Congress issues laws that apply at a national level. The central government may issue decrees, for a variety of reasons, including:
- as a result of extraordinary and temporary legislative powers granted by Congress;
- in emergency situations;
- to further regulate laws; or
- to perform government functions.
These decrees also apply at a national level. Government bodies may also issue resolutions and instructions, but they are subject to the provisions of superior norms (laws and decrees). At the local level (departments and municipalities) the legislative bodies (assemblies and councils) and the governmental bodies (governors and majors) may issue norms that apply to the local territory.
There are two main court systems or jurisdictions that deal with commercial acts and contracts: the administrative jurisdiction and the ordinary jurisdiction.
The administrative jurisdiction is composed of administrative courts and tribunals, and the Council of State, which is the final court of appeal in administrative matters. This administrative jurisdiction reviews the constitutionality of certain acts, decrees and decisions of the government and the local entities. It also decides on conflicts related to government contracts and on the legality of acts of the government that may affect or cause damages to individuals or entities of the private sector.
The ordinary jurisdiction includes the civil courts, the labour courts, the superior tribunals and the Supreme Court of Justice. The Supreme Court is not a court of appeals, but rather a court that decides on extraordinary claims filed against decisions of the superior tribunals (ie, it acts as a court of cassation). The labour courts deal with conflicts between employers and employees. The civil courts decide on all types of civil and commercial matters and conflicts, contractual or otherwise, as well as on special issues (eg, class actions and popular actions).
The Constitutional Court is a special jurisdiction ultimately responsible for (i) the protection of fundamental rights of citizens, and (ii) deciding whether the norms issued by the government or Congress comply with the national Constitution. It is also provides for a final extraordinary and exceptional instance in deciding actions for the protection of fundamental rights filed before other courts in the system.
Certain government bodies, such as the Superintendency of Companies and the Superintendency of Industry and Commerce, have been granted special jurisdictional powers for matters that include bankruptcy proceedings, restrictive trade practices and unfair competition.
Decisions of the civil courts are only binding on the parties in the pertinent proceedings and do not constitute precedent. Three uniform decisions of the Supreme Court of Justice on the same matter constitute a probable doctrine, but are not considered binding on third parties. However, in practice, lower courts tend to follow the decisions of the Supreme Court.
The provisions of the Code of Civil Proceedings govern civil proceedings. It regulates the following:
- jurisdiction of the courts;
- powers of attorney;
- requirements of the claims;
- service of process;
- appeals and extraordinary recourses;
- court decisions; and
- enforcement of local and foreign judgements.
There is no process of discovery. Instead, the evidence that is taken into consideration is that evidence timely submitted before the court either with the claim, with the reply to the claim or at the request of the judge.
The code provides for different types of regular proceedings (ie, ordinary, summary and verbal). The code also provides for executive proceedings, which are designed to facilitate payment for clear and express obligations and which also allow the creditor to seize assets and sell them at public auction. Except for certain limited hearings in ordinary, summary and verbal proceedings, submissions to the civil courts are in writing and within timeframes provided for by the code. This may not be modified by the court.
Pursuant to the code, the proceedings (and therefore the pleadings) must be in Spanish. An official translator approved by the Ministry of Justice must translate all documents or testimonies that are in a different language.
A set of legal provisions issued in 1998 created special summary proceedings for class and popular actions. Popular actions are basically preventative and have the purpose of protecting collective rights (eg, a typical case would be judicial action to prevent damage to the environment). Class actions have the purpose of obtaining indemnification for damage caused to a group of individuals under the same factual circumstances (eg, damage caused by defective products). Special proceedings were designed to reach a prompt decision and as a result, the defendant is not always in a position to adequately defend itself. Therefore, adequate preparation and instructions on how to handle this type of action is strongly recommended.
There are no court fees. The expenses payable in a judicial proceeding are those that relate to attorneys and to experts appointed by the court. The losing party is generally ordered to reimburse the succeessful party for the cost of the proceedings, including attorneys fees.
For further information on this topic please contact Eduardo Zuleta at Zuleta, Garrido, Araque & Jaramillo by telephone (+571 310 6614) by fax (+571 310 6286) or by email ([email protected]).
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