Abstract
The New York Convention has been applied by Colombian courts on numerous occasions. The major issue concerning the application of the Convention in Colombia relates to the Supreme Court’s interpretation of the grounds for denying recognition and enforcement provided for in Article V. The Supreme Court must also clarify its position on the application of the Convention vis a vis other international treaties applicable to recognition and enforcement proceedings in international commercial arbitration.
Eduardo Zuleta and Rafael Rincón are founding members of Zuleta Abogados Asociados. The authors did not reference two relevant rulings from the Colombian Supreme Court that were issued after the submission of this manuscript.
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Notes
- 1.
The Supreme Court of Justice declared the 1979 law unconstitutional for technical reasons in its decision dated October 6, 1988. Nonetheless, Colombia did not denounce the Convention. Rather, it ratified the treaty’s effectiveness with new implementing legislation in 1990. The continuing effect of the Convention (in spite of the 1988 decision), was acknowledged by the Supreme Court itself in a decision dated November 20, 1993.
- 2.
An analysis of these conventions is provided in section 1.5 below.
- 3.
The Arbitration Statute, approved by Congress, was signed by the President of Colombia on July 12th, 2012, and entered into force on October 12th, 2012. It adopted a dual system by providing separate chapters for domestic arbitration (Chapter I) and international arbitration (Chapter III).
- 4.
Article 64 of the Arbitration Statute provides that, “International origin and rules of interpretation. In the interpretation of this section, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith.”
- 5.
Article 302 of the Colombian Civil Code of Procedure.
- 6.
J P Cárdenas, ‘El recurso de anulación en el arbitraje internacional’ in Estatuto Arbitral Colombiano (Ministerio de Justicia, Legis, 2013) 513 et seq. See also L A Barragán, ‘El laudo arbitral’ in El Contrato de Arbitraje (Universidad del Rosario, Legis, 2005) 663 et seq.
- 7.
Decision dated January 26, 1999 of the Supreme Court of Justice.
- 8.
Decision dated November 29, 2012 of the Council of State. In this case the court ruled that an award was to be considered final despite of the fact that it was still subject to an application to set aside.
- 9.
Decision dated January 26, 1999 of the Supreme Court of Justice.
- 10.
Decision dated December 12, 2011 of the Supreme Court of Justice, p. 14.
- 11.
Article 80 of Law 1563/12.
- 12.
Antonio Aljure Salame, ‘Reconocimiento y ejecución de laudos arbitrales’ in Estatuto Arbitral Colombiano (Ministerio de Justicia, Legis, 2013) 557 et seq.
- 13.
Articles 88 and 89 of Law 1563/12 provide that, “Article 88. Enforcement of interim measures. An interim measure issued by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued. For purposes of this article, the court will proceed to the enforcement of such measures in the same manner as the enforcement of final judicial decisions issued by Colombian judicial authorities, and in such process, only the exceptions set forth in article 89 of this section may be raised.
The party who is seeking or has obtained recognition or enforcement of an interim measure shall promptly inform the court of any termination, suspension or modification of that interim measure by the arbitral tribunal.
The court may only order the requesting party to provide security if the arbitral tribunal has not already made a determination with respect to security or where such a decision is necessary to protect the rights of third parties in respect of which the arbitral tribunal has not made any determination.
Article 89. Grounds for refusing recognition or enforcement. Refusal of enforcement of the interim measures ordered by an arbitral tribunal shall be subject to the following rules: 1. The court may solely refuse to enforce an interim measure in the following cases and on the following grounds: a) At the request of the party against whom the measure has been issued, when: i. At the time when the arbitration agreement was made, such party was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the measure was issued, or; ii. Such party was not given proper notice of the commencement of the arbitration proceedings, or; iii. The decision refers to a dispute not contemplated by or falling beyond the scope of the terms of the arbitration agreement. However, if the decisions on matters submitted to arbitration can be separated from those not submitted, the former part shall be enforceable, or; iv. The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration takes place, provided that this circumstance entails a denial of such party’s right of defence in connection with the content of the interim measure, or; v. The interim measure has been terminated or suspended by the arbitral tribunal or, where so empowered, by the court of the State in which the arbitration takes place or under the law of which that interim measure was granted, or; b) If the court finds that: i. Under Colombian law, the subject-matter of the dispute is not capable of settlement by arbitration, or; ii. The enforcement of the interim measure would be contrary to Colombian international public policy. 2. Any determination made by the court on any of the grounds listed in this article shall be effective only for the purposes of the application to recognize and enforce the interim measure. The court where enforcement is sought can only rule on the existence of the grounds listed in this article and shall not undertake a review of the substance of the interim measure.”
- 14.
Article 112 of Law 1563/12.
- 15.
Decision dated November 20, 1992 of the Supreme Court of Justice.
- 16.
Decision dated July 27, 2011 of the Supreme Court of Justice.
- 17.
Decision dated December 19, 2011 of the Supreme Court of Justice.
- 18.
Article 380 of the CCP.
- 19.
The Panama Convention scope of application is limited to awards rendered by the Member States of the Organization of American States that become party to the convention (Preamble).
- 20.
For an analysis on the possible conflicts of these conventions arising from matters different from the recognition and enforcement grounds, see A Aljure ‘La Convencion de Nueva York y la Convención de Panama’ in Guido Tawil & Eduardo Zuleta (eds) El arbitraje commercial internacional. Estudio de la Convención de Nueva York con motivo de su 50 aniversario (Buenos Aires, Abeledo Perrot, 2008).
- 21.
Articles 5-7 of the 1889 Montevideo Treaty.
- 22.
Article 2 of the 1979 Montevideo Convention.
- 23.
Decision dated November 19, 2013 of the Supreme Court of Justice.
- 24.
Articles 53 and 54 of the Washington Convention.
- 25.
Prior to the adoption of the Arbitration Statute, the competence of tribunals was established in articles 146 and 147-2 of the decree 1818 of 1998. Neither of such provisions reproduced the content of article II.3 of the Convention. The Constitutional Court (SU-174-2007) interpreted such articles as a codification of the kompetenz-kompetenz principle not referring to the exception provided in article II.3.
- 26.
Article 70 of Law 1563/12.
- 27.
Article 79 of Law 1563/12.
- 28.
For an analysis of domestic Colombian Courts application of the kompetenz-kompetenz, see F Mantilla, ‘Los principios de autonomia y competencia-competencia en el nuevo Estatuto Arbitral Colombiano’ in Estatuto Arbitral Colombiano (Ministerio de Justicia, Legis, 2013) 513 et seq.
- 29.
Article 112 of Law 1563/12.
- 30.
This position is supported by commentators regarding the application to set aside. Since the principle is the same, it could be said to be applicable also for recognition and enforcement purposes. See for instance J P Cárdenas, ‘El recurso de anulación en el arbitraje internacional’ in Estatuto Arbitral Colombiano (Ministerio de Justicia, Legis, 2013) 513 et seq.
- 31.
Order dated February 2, 1994 of Supreme Court of Justice.
- 32.
Order 25261 dated October 24, 2003 Third Section of the Administrative Litigation Chamber of the Council of State.
- 33.
Decision dated November 29, 2013 Third Section of the Administrative Litigation Chamber of the Council of State.
- 34.
Supra Aljure 565
- 35.
Decision dated December 19, 2011 of the Supreme Court of Justice.
- 36.
Decision dated July 27, 2011 of the Supreme Court of Justice Petrotesting Colombia v. Southeast Investment Corp & Ross Energy S.A.
- 37.
Decision dated July 27, 2011 of the Supreme Court of Justice Petrotesting Colombia v. Southeast Investment Corp & Ross Energy S.A.
- 38.
Supra Aljure 566.
- 39.
Cárdenas 535.
- 40.
Decision dated July 20, 2009 of the Supreme Court of Justice.
- 41.
Article 112 of Law 1563/12
- 42.
Aljure 568.
- 43.
Decision dated December 29, 2011 of the Supreme Court of Justice.
- 44.
Article 68 of Law 1563/12.
- 45.
Articles 115 and 116 of Law 1563/12 provide that, “Article 115. Procedure for recognition. The party applying for recognition shall submit its application before the competent court, along with the documents indicated in article 111. If the court finds that documents are complete, it shall admit the application and communicate it to the other party or parties for them to make their submissions within ten (10) days. Upon the expiry of the abovementioned term and without any additional procedure, the competent court shall decide within twenty (20) days. Article 116. Enforcement. Once the award has been granted recognition, partially or completely, the competent judicial authority will hear enforcement proceedings.”
- 46.
Article 2536 of the Colombian Civil Code.
- 47.
Please note that article 64 of the Arbitration Statute provides that, “International origin and rules of interpretation. In the interpretation of this section, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith.”
- 48.
Articles II.3 and VII of the Convention.
REFERENCES
A Aljure Salame et al., Estatuto Arbitral Colombiano (Ministerio de Justicia, Legis, 2013)
Guido Tawil & Eduardo Zuleta (eds), El arbitraje commercial internacional. Estudio de la Convención de Nueva York con motivo de su 50 aniversario (Buenos Aires, Abeledo Perrot, 2008)
L A Barragán, El Contrato de Arbitraje (Universidad del Rosario, Legis, 2005)
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Zuleta, E., Rincón, R. (2017). Interpretation and Application of the New York Convention in Colombia. In: Bermann, G. (eds) Recognition and Enforcement of Foreign Arbitral Awards. Ius Comparatum - Global Studies in Comparative Law, vol 23. Springer, Cham. https://doi.org/10.1007/978-3-319-50915-0_8
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