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What are the validity requirements for an arbitration agreement?
Under Articles 4 and 69 of Law 1563/2012, which governs domestic and international arbitration in Colombia, an arbitration agreement is valid if:
- it was agreed in writing;
- it expressly and unequivocally reflects the parties’ intention to submit the dispute to arbitration; and
- the dispute submitted to arbitration is waivable.
If the arbitration agreement is contained in a separate document, it must state the names of the parties and precisely indicate the contract to which it relates.
Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?
Article 116 of the Constitution recognises arbitration as a method of dispute resolution. The courts usually enforce arbitration agreements, unless the dispute’s subject matter is non-arbitrable.
Further, Law 1563/2012 requires the courts to refer disputing parties to arbitration where the agreement to arbitrate is international, regardless of whether Colombia is the seat of arbitration. In the case of domestic arbitration, Article 100 of the General Code of Procedure allows the respondent to file, as a preliminary defence, a request for the court to refer the parties to arbitration under a domestic arbitration agreement.
Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?
Consolidation will be governed by the parties' arbitration agreement or the applicable arbitration rules. Law 1563/2012 is silent on this matter. It is likely that a tribunal will consolidate the proceedings if:
- they involve the same parties;
- the subject matter is related; and
- the arbitration agreements are compatible.
Where different parties are involved, the consent of each may be required, absent express authority in the arbitration agreement or the applicable rules to consolidate the proceedings.
Choice of law
How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
For international arbitral proceedings, the arbitral tribunal must decide the dispute based on the substantive law agreed by the parties (Article 101 of Law 1563/2012). If the parties failed to agree on the applicable law, the tribunal may apply the law that it considers appropriate. Domestic arbitrations will, as a general rule, be decided under Colombian law.
Are there any provisions on the separability of arbitration agreements?
Under Articles 5 and 79 of Law 1563/2012, an arbitration agreement is independent of the contract in which it is included. A decision declaring the contract invalid, non-existent or unenforceable does not invalidate the arbitration agreement.
Are multiparty agreements recognised?
Yes. Absent the agreement of the parties or a different provision in the applicable arbitration rules, multiple plaintiffs or defendants must act as a single plaintiff or defendant in the appointment of arbitrators (Article 74 of Law 1563/2012).
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