A. LEGISLATION AND RULES
A.1 Legislation
International arbitration in Colombia continues to be governed by Section Three of Law 1563 of 2012,[1] to which there have been no legislative amendments. Legislative attempts to modify Section Three of Law 1563 have been shelved, and there is no current bill being discussed to amend it.
However, there are two bills currently under discussion in the Colombian Congress related to domestic arbitration: Bill No. 8 of 2023, which provides for the use of arbitration in domestic enforcement proceedings, and Bill No. 198 of 2023, related to the possibility of using arbitration as a mechanism to resolve domestic tax disputes. Both bills only refer specifically to domestic arbitration and may have significant consequences if they turn into law.
A.2 Institutions, rules and infrastructure
The arbitration centers of the Bogotá Chamber of Commerce (BCC), the Medellín Chamber of Commerce and the Cali Chamber of Commerce continue to be the top arbitration institutions in Colombia, with the first two being more active in the administration of international arbitration cases.
In March 2023, the arbitration center of the BCC issued Directive 1 of 2023 (“Directive“), a new directive on the use of assistants or secretaries by arbitral tribunals in the context of international arbitration proceedings. The Directive seeks to clarify the differences and the possibility of co-existence between an assistant or secretary designated by the arbitral tribunal and the secretary designated by the BCC. The Directive also outlines the different functions and tasks each of them has, and it provides that the parties may object to the appointment of the assistant or secretary designated by the arbitral tribunal. It also says that the assistants and secretaries shall be impartial and independent from the parties, and any fees or costs related to their tasks shall be covered by the tribunal itself.
B. CASES
In 2023, the Metroplús and the Swiss Renewable Power Partners sagas continued with the issuance of new court decisions that ought to be considered in international arbitration proceedings seated in Colombia. In addition, the Supreme Court of Justice (“Supreme Court“) also clarified the scope and possibility of witness preparation in proceedings that take place in Colombia, including international arbitrations seated in Colombia. Lastly, the long-awaited final award in the Reficar case was issued, leaving some very important precedents for major construction cases.
B.1 The Metroplús and the Swiss Renewable Power Partners sagas
In the previous edition of the International Arbitration Yearbook, the Metroplús and the Swiss Renewable Power Partners cases were discussed.[2] In 2023, additional decisions were issued in both cases, providing further guidelines regarding the international nature of an arbitration, the consequences of the non-payment of the fees in an international arbitration, and the foreign state’s immunity in Colombia when enforcing an award.
B.1.1 The Metroplús case and the consequences of the non-payment of the fees
In a decision dated 6 April 2022, the Council of State declared that it lacked jurisdiction to hear and decide a tutela action — a constitutional action for the protection of constitutional rights — filed against two procedural orders issued by an ICDR international arbitral tribunal seated in Colombia. In the procedural orders, the tribunal had held that Metroplús’ failure to pay the arbitration fees and expenses amounted to its claims being “desisted”[3] pursuant to Article 36.4 of the 2014 ICDR Rules.[4] In the context of international arbitration proceedings seated in a Colombian city and pursuant to ruling T-354 of 2019 issued by the Colombian Constitutional Court (which said that the tutela may proceed only under very exceptional circumstances against an award issued by an international arbitral tribunal seated in Colombia), the Council of State ruled that the tutela may only proceed against awards and not against procedural orders. This was an important clarification made by the Council of State that prevents parties from disrupting international arbitral proceedings by filing tutelas against procedural orders while the arbitration is ongoing.
After the Council of State’s decision, Metroplús filed a lawsuit before the Colombian courts on the same grounds as the failed arbitration. The action was dismissed by the Administrative Tribunal of Antioquia, stating that the arbitration agreement was still applicable and, therefore, any action had to be brought before an ICDR arbitral tribunal. Metroplús appealed the decision before the Council of State. Among others, Metroplús alleged that when the arbitral tribunal ruled that Metroplús’ claims had been desisted due to the lack of payment, the effects of the arbitration agreement had been extinguished (i.e., the arbitration agreement became inoperative).
In a ruling dated 23 October 2023, the Council of State confirmed the decision of the Administrative Tribunal of Antioquia and dismissed the lawsuit. The Council of State explained the different consequences of the failure to pay the arbitration fees in domestic and international arbitration. While in domestic arbitration, Law 1563 establishes a specific consequence by rendering the arbitration agreement inoperative when the fees are not paid (thus allowing the parties to resort to domestic courts to resolve their dispute), for international arbitral tribunals seated in Colombia, there is no express legal provision that rules the consequences of non-payment. In this context, the applicable institutional arbitral rules may determine the consequences, if any, for the failure to pay the fees or the advance on costs. In this case, the 2014 ICDR Rules provided that the claims would be desisted for failure to pay the fees but provided no consequence as to the effects on the arbitration agreement. Consequently, the Council of State said that the arbitration agreement remained in full force, and Metroplús was not allowed to file an action on the same grounds before national courts.
In the ruling, the Council of State also determined that the arbitration was indeed international despite the fact that a Colombian branch of a foreign company had executed the arbitration agreement. According to the Council of State, a Colombian branch cannot be considered as a separate and different entity from its foreign parent company and therefore, under Article 62(1) of Law 1563 of 2012, the arbitration is deemed to be international as the parties had their domicile in different countries.
B.1.2 The Swiss Renewable Power Partners case and foreign states’ immunity from execution in Colombia
In the previous edition of the International Arbitration Yearbook, we referred to the decision of the Supreme Court in Swiss Renewable Power Partners S.A.R.L v. Spain dated 30 August 2022, in which the Supreme Court denied the recognition of an international investment award in Colombia. It was noted that a recurso de súplica — an extraordinary recourse before the same judge to reconsider its prior decision — was pending since September 2022. This recurso de súplicawas decided by the Supreme Court through a ruling dated 13 September 2023, in which the Supreme Court reaffirmed its initial decision.
The Supreme Court stated that foreign states’ immunity from jurisdiction and immunity from execution are part of customary international law. As such, even if Colombia has not adopted the United Nations Convention on Jurisdictional Immunities of States and Their Property, these rules are applicable in Colombia. Regarding the immunity from execution, a Colombian court shall give effect to this customary rule unless it finds that, in the specific case, there is an applicable exception to the immunity from execution, either because of an international treaty or because it is part of customary international law. According to the Supreme Court, this exception must be specific to the immunity from execution, as an exception to the immunity from jurisdiction does not necessarily entail an exception to the former.
In the case at hand, the court found no exception to the rule of immunity from execution, so it denied the request for recognition of the award against Spain.
B.2 The scope and possibility of witness preparation in Colombia
In a recent ruling dated 13 September 2023, the Supreme Court held that the preparation of witnesses is allowed in any proceeding in Colombia — including in international arbitrations seated in Colombia.
The case arose from a sanction imposed on a lawyer by the National Disciplinary Commission — the lawyers’ disciplinary body in Colombia — for preparing a witness in a domestic judicial proceeding. Given the importance of the issue and the fact that the possibility and limits to witness preparation in Colombia have been controversial, the court used the opportunity to rule on this issue.
Regarding international arbitration, the court noted that both the IBA Rules and the IBA Guidelines on Party Representation in International Arbitration (“IBA Guidelines“) allow party representatives to interview and prepare witnesses who will give testimony before an international arbitral tribunal. Likewise, it noted that under the IBA Guidelines, witness preparation is limited by the fact that a party representative cannot invite or encourage a witness to give false evidence and should seek to ensure that any declaration — whether written or oral — reflects the witness’s own account of facts and circumstances.
After considering the local procedural rules, the court held that witness preparation in Colombia is allowed with the aforementioned limits, i.e., that, among others, a party representative may not encourage a witness to declare facts that they do not know about or to misrepresent facts.
B.3 The Reficar case and its implications on complex construction disputes
On 7 June 2023, the final award in Reficar v. CB&I was issued by an international arbitration tribunal under the ICC Rules (“Award“). Although the tribunal was seated in New York, it is a very important decision for the Colombian arbitration community because Reficar is a publicly owned Colombian company. The project is, to date, the largest infrastructure project in Colombian history, and Colombian law — as well as New York law — was applicable to the merits. Furthermore, the Award has important implications on construction disputes and on the definition of culpa graveunder Colombian law — similar to gross negligence under NY law, according to the tribunal.
The dispute arose out of an EPC contract for the modernization of Cartagena’s oil refinery in Colombia entered into between Reficar and CB&I under a reimbursable cost scheme (“Contract“). According to Reficar, CB&I failed to control the costs and schedule of the project, which caused the overall costs to skyrocket by more than USD 2 billion. After more than seven years of proceedings, the tribunal issued the Award, holding CB&I liable for damages amounting to approximately USD 940 million plus interests since 31 December 2015, and USD 58.6 million for arbitration costs.
In the Award, the tribunal analyzed the EPC contract and its nature and found that the Contract was not a typical cost-reimbursable contract because it had some specific provisions that shifted the risk of cost overruns and delays from the owner, i.e., Reficar, to the EPC contractor, i.e., CB&I. According to the tribunal, these provisions were: (i) an obligation of increased diligence according to which CB&I had to control costs and schedule like a lump sum contract and safeguard Reficar’s interest as its own; and (ii) an obligation pursuant to which CB&I could only ask for reimbursement of costs that were reasonable and proper and incurred in accordance with the Contract. These provisions, which the tribunal found were breached by CB&I, shifted the risk of cost overruns and delays, and as such, CB&I was liable for them.
The tribunal then turned to the damages analysis by applying a Bottom-up Modified Total Cost Approach. To do so, it started by determining that the reasonable cost estimate of the project (“Reasonable Cost Benchmark“) was the one given by CB&I when providing its Class I estimate. It then compared the Reasonable Cost Benchmark with the total cost of the project, finding that the difference between one and the other corresponded to the costs in excess. Having determined the costs in excess, the tribunal analyzed CB&I’s defense, according to which some of the costs in excess were not attributable to it. If the cause of the costs in excess was not attributable to CB&I, the tribunal would deduct the cost of that specific event from the total costs in excess that CB&I had to reimburse. In the end, the tribunal determined that CB&I was responsible for over USD 845 million for costs in excess — which were part of the final award of USD 940 million.
Finally, having determined CB&I’s liability, the tribunal was faced with the application of a liability cap, which limited CB&I’s liability to USD 85.8 million. The tribunal found that this liability cap was valid under Colombian law but that if Reficar could prove that CB&I acted with culpa grave or dolo — similar to willful misconduct — the liability cap would be rendered inapplicable. The tribunal went on to determine that culpa grave under Colombian law can be found whenever the breached obligation can be considered essential, the magnitude of the damage is significant, and the breaching party’s attitude is reckless. Having found that the previous three conditions were met in the case at hand, the tribunal held that CB&I acted with culpa grave, thus rendering the liability cap inapplicable.
[1] Colombia has a dualist statute that separately regulates domestic arbitration (Section 1) and international arbitral (Section 3).
[2] See Baker McKenzie International Arbitration Yearbook, 2022-2023, Colombia. Available online at: https://www.globalarbitrationnews.com/2023/01/01/baker-mckenzie-international-arbitration-yearbook-2022-2023-colombia/#_ftnref1.
[3] Under Colombian law, the “desistance” of a lawsuit implies the withdrawal and waiver of all claims (see Article 314 of Law 1564 of 2012).
[4] Under the Spanish version of the 2014 ICDR Rules, Article 36.4 states that if a party fails to pay the required deposits, it will be understood that said party “desists” its claims. The English version, meanwhile, states that such a failure will be “deemed a withdrawal of the claim or counterclaim.”
