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Starting an arbitration proceeding
What is needed to commence arbitration?
Domestic arbitral proceedings initiate with a complaint that must satisfy all of the requirements set out in the relevant rules regarding civil judicial complaints. In general, such requirements include:
- identification of the parties to the process;
- a clear description of the facts of the dispute;
- an expression of the claims;
- identification of the rules applicable to the dispute;
- an estimate of the claims’ monetary value; and
- an indication of the evidence to be produced and the submission of any documents that are intended to be used as evidence and are in the party’s power.
The complaint must be signed by the claimant’s attorney and filed along with all of the documentary evidence available and a copy for the defendant, tribunal and arbitration institution, if applicable.
The commencement of an international arbitration will vary according to the rules chosen. Absent applicable rules or an agreement of the parties, Article 94 of Law 1563/2012 – the legislation governing domestic and international arbitration in Colombia – states that the arbitration commences with a request for arbitration.
Are there any limitation periods for the commencement of arbitration?
No. However, each claim will have a statute of limitations under the applicable law. As a general rule, statutes of limitations under Colombian law are between two and 10 years.
Are there any procedural rules that arbitrators must follow?
In domestic arbitration, awards must be written and reasoned on the evidence and applicable law.
Awards rendered by an international tribunal must:
- be written and signed by the arbitrators;
- state the tribunal’s reasoning, unless otherwise agreed by the parties; and
- state the date and seat of arbitration.
Are dissenting opinions permitted under the law of your jurisdiction?
Yes. In domestic arbitration, the dissenting arbitrator must issue a separate opinion providing the rationale for his or her dissent (Article 38 of Law 1563/2012). In international arbitration, dissents are permitted, but there is no requirement to provide reasons therefor (Articles 102 and 104 of Law 1563/2012). The parties may agree to require a reasoned dissent or the arbitration rules may contain such a requirement.
Can local courts intervene in proceedings?
As regards domestic arbitration, the courts may intervene in arbitral proceedings:
- to collect pre-arbitration evidence;
- to designate the arbitrators;
- to decide the challenge against the sole arbitrator or the majority of the arbitral tribunal;
- to assist the tribunal in the practice and enforcement of interim measures; and
- through a constitutional action aimed at protecting fundamental constitutional rights.
In international arbitration, the courts may intervene in arbitral proceedings:
- to decide on interim measures and enforce interim measures ordered by a tribunal;
- to appoint arbitrators;
- to decide a challenge to an arbitrator;
- to assist in the gathering of evidence;
- to decide a challenge to the award; and
- to recognise and enforce foreign arbitration awards.
Pursuant to Article 67 of Law 1563/2012, the courts may intervene in international arbitrations only where expressly allowed by said law.
Can the local courts assist in choosing arbitrators?
Yes – where the parties cannot agree on the appointment of arbitrators or the method to do so, the courts may assist by appointing arbitrators (Article 14 of Law 1563/2012 for domestic arbitration and Article 73 for international arbitration).
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?
Where a respondent fails to participate in an arbitration after being properly served of the request for arbitration, the arbitral tribunal may continue the proceedings and issue its award (Article 98 of Law 1563/2012). However, the tribunal has no authority to issue a default award, so it must decide on the merits (Article 98 of Law 1563/2012). The courts may refer parties to arbitration, but cannot compel them to arbitrate under penalty of contempt of court. Domestic arbitral tribunals have the power to subpoena witnesses or documents from third parties (Article 31 of Law 1563/2012). International arbitral tribunals may seek the assistance of domestic courts to obtain evidence from third parties (Article 100 of Law 1563/2012).
In what instances can third parties be bound by an arbitration agreement or award?
Only where those third parties have consented to arbitration. No third party may be bound by an arbitration agreement or award without its consent. To be bound by an award, the third party must also have been granted the opportunity to present its case in the arbitration.
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
Regarding domestic arbitration, failing prior agreement, the proceedings will be conducted in the manner specified by the arbitration rules of the concerned arbitral institution. In the absence of such an institution, the arbitration will take place at an arbitral institution in the defendant’s domicile or, if there are multiple defendants, the domicile of one them (Article 12 of Law 1563/2012).
In international arbitration, parties may agree to the seat and language of the arbitration without limitation (Article 95 of Law 1563/2012).
How is evidence obtained by the tribunal?
In domestic arbitration, the taking of evidence is generally governed by the General Code of Procedure (Article 31, Law 1563/2012).
In international arbitration, the parties – and, failing their agreement, the tribunal – are free to establish the rules for taking evidence. The parties or the tribunal may decide to apply the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration.
In international arbitration, the parties or the tribunal can request the assistance of local courts in the taking of evidence within their jurisdiction (Article 100 of Law 1563/2012).
What kinds of evidence are acceptable?
The taking of evidence in domestic arbitration is subject to the same rules as in judicial proceedings. Under Article 100 of Law 1563/2012 and Article 165 of the General Procedure Code, the following is considered admissible evidence in Colombia:
- declarations of contending parties;
- arbitral tribunal-appointed expert reports;
- party-appointed expert reports; and
- inspections of goods or other property.
In respect of international arbitration, Article 92 of Law 1563/2012 follows Article 19 of the United Nations Commission on International Trade Law Model Law, under which tribunals are free to establish the rules for the taking of evidence in the absence of an agreement of the parties.
Is confidentiality ensured?
Law 1563/2012 is silent in this respect. Further, there is no presumption of confidentiality. Parties to an international arbitration may agree to confidential proceedings, but even in such a scenario, the annulment application will be decided by a Colombian court and the decision will be public.
Can information in arbitral proceedings be disclosed in subsequent proceedings?
Yes – the parties to an arbitration may disclose information or documents provided within the arbitration in subsequent proceedings, unless otherwise agreed in international arbitration.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
In Colombia, Law 1123/2007 governs the conduct of counsel in any proceeding, including arbitration. However, this law is applicable only to lawyers admitted to practise in Colombia. Arbitrators are bound by the duties of impartiality and independence.
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