Search for:

Colombian constitutional law provides an action for the defense of fundamental constitutional rights, known as a “tutela action.” The tutela action has been accepted against domestic awards on the same grounds of a tutela action against judicial decisions, related mainly with violations of due process, such as procedural errors of sufficient gravity, errors of sufficient gravity on the examination of evidence or evidently erroneous factual findings.

However, there is still discussion regarding the possibility of presenting a tutela action against an award issued by an international arbitration tribunal seated in Colombia. A few tutelas against awards rendered in international arbitrations seated in Colombia have been permitted to commence, although none of these have ever been overruled since no violation of fundamental rights has ever been found. Under Law 1563, the only remedy against an international arbitration award is a motion to set it aside. This should be interpreted in the sense that the tutela action cannot be presented against the decision of an international arbitration tribunal. Nonetheless, the specific issue has not been addressed by the Colombian courts.

A very recent clarification of a decision to deny a tutela action against an international arbitration award represents a major step on the topic. In this clarification, the judge pointed out that a tutela action cannot be presented against an international arbitration award. He stated that UNCITRAL recommended limiting and clearly defining court involvement in international commercial arbitration. This limitation of the local judge involvement in international arbitration is recognized by the legislature, since Law 1563, in accordance with the UNCITRAL Model Law, establishes that the only remedy against an arbitral award is a motion to set it aside. Permitting a tutela action against an international arbitration award would breach this, because it may even allow local judges to review substantive errors.

The clarification also states that a tutela action may only proceed against acts or omissions of a public authority which violate fundamental rights. Accepting a tutela action against an international arbitration award would be recognizing that international arbitrators are public authorities under Colombian law, implying that their actions may lead to the responsibility of the state, despite the fact that the seat of arbitration may be another country and the arbitrators may be nationals from another state. Deriving state responsibility for actions and omissions performed in another country or by national from another state would be unacceptable, which leads to the conclusion that a tutela action cannot be presented against awards issued by international arbitration tribunals seated in Colombia.

This case note originally appeared in the Baker McKenzie International Arbitration Yearbook. The Yearbook comprises reports on arbitration in key jurisdictions around the globe. You can access the Yearbook here. The country chapter “Colombia” can be found here.

 

 

 

Author

Claudia is a partner at Baker McKenzie. Since 2010, she heads the Dispute Resolution practice in Colombia. In 2018, she started leading the practice in Latin America and is currently the Global Chair of the Firm's Dispute Resolution Group. Claudia is the Chair of the Arbitration and ADR Commission of ICC in Colombia. She is also a listed arbitrator of the panel of arbitrators of the Center of Arbitration of the Chamber of Commerce of Bogotá for both, domestic and international arbitration; and a listed arbitrator of the Panel of Arbitrators of the Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Center). Claudia is a highly-regarded expert in transnational litigation and international arbitration. She has over 20 years of extensive experience handling complex litigations and arbitrations related to construction and infrastructure projects, post-acquisition disputes, disputes in the energy sector, distribution and supply agreements, unfair competition, product liability, insolvency and general breach of contract. Claudia has been ranked by Chambers & Partners and Legal 500 as an expert in the field of dispute resolution. According to these publications, the group led by Claudia "'generates absolute confidence’ according to clients who highlight the team’s ‘efficiency, agility and commitment’, ‘broad market knowledge’, and ‘careful follow-up of cases", pointing that "It is led by the ‘expert’ and ‘deeply involved’ Claudia Benavides whose ‘intelligence, diligence and acuity to foresee legal risks’, make her a stand out legal adviser.” Chambers and Partners Latin America notes that "Claudia Ines Benavides Galvis is praised by interviewees for her "wide knowledge of the area, precision and in-depth background" in the field of dispute resolution." She has been ranked Band 2 in Chambers & Partners' individual ranking and in the "Leading Lawyer" listing by The Legal 500. The prestigious publication Who's Who Legal: Arbitration describes her as one of the world experts in arbitration and Benchmark Litigation featured her in the Top 25 Latam Women in Litigation listing. The team led by Claudia is ranked Tier 1 in the prestigious directory The Legal 500. Claudia has been actively involved with academia. She regularly speaks in important national and international conferences and she is the author of several articles related to her practice.

Author

Mariana Tique is an associate in Baker McKenzie's Dispute Resolution practice, based in Bogota. She has experience in national and international Commercial Arbitration, Investment Arbitration, Intellectual Property, Patent Law and Private Law. She is a former visiting scholar in Purdue University, Indiana, working on a project related with Patent Information all around the world, and a former Auxiliary Judicial Official in one of the Civil Circuit Courts of Bogota, Colombia. Mariana focuses on dispute resolution, supporting the Firm's procedures in private law and administrative law before the Colombian Courts. Also, she supports national and international arbitration procedures. Mariana Tique can be reached at [email protected] and +57 1 6341500.