Contributed By Philippi Prietocarrizosa Ferrero DU & Uría
Colombia’s legal system is based on civil law.
The Political Constitution of 1991 is the fundamental law of the Colombian legal system. Other norms of lesser hierarchical status fall under various codes of law, including the Civil Code, the Commercial Code, the Substantive Labour Code and the General Code of Procedure, among others.
In addition to the norms established in the various codes, Colombian judges must apply judicial precedent to similar situations. Thus, there are two types of judicial precedent: (i) horizontal, by virtue of which a judge cannot deviate from his own decisions; and (ii) vertical, by virtue of which judges must apply the precedent of their hierarchical superiors, particularly that of the high courts.
In accordance with Article 7 of the General Code of Procedure (CGP), judges must abide by the rule of law when issuing judgments. They must also take into account equity, custom, jurisprudence and doctrine.
Colombian law expressly provides the duties and powers of judges, including the power to conduct and handle processes, and the possibility to issue ex officio decisions and remediate the process at any stage.
The Colombian judicial system, particularly its criminal law system, follows an adversarial or accusatory model.
Judicial processes are carried out in stages that are governed by res judicata. The means by which each stage may be exhausted varies and, as a general rule, proceedings must be conducted orally, unless the law otherwise provides for written proceedings.
The written phase occurs primarily at the beginning of a proceeding, as all lawsuits (with the exception of a constitutional action to protect fundamental rights, or acción de tutela) must be presented in writing. Likewise, most filings by the judge and the parties, such as the filing of appeals and memorials, must be in writing, except for when made during a hearing.
The oral phase is carried in a series of hearings that are held to complete (i) the evidentiary phase and (ii) the trial phase of the proceeding. Thus, once the initial phase is exhausted, all proceedings are carried out orally, in the context of a hearing, through which the conciliation stage is completed, evidence is presented, the parties are questioned and the closing arguments are presented. Once this phase is exhausted, Colombian law provides that a judgment must be handed down orally by the judge.
All Colombian judges are subject to a regime of impediments and recusals.
Colombia is a social state governed by the rule of law and organised as a central and unitary republic. Therefore, there are no local or federal courts.
The court system is divided into various jurisdictions that, in turn, are composed of judges of different hierarchical standing. These jurisdictions include the following.
All judges are called to protect the Political Constitution and, consequently, they are authorised to hear and decide on constitutional actions to protect fundamental rights (acciones de tutela). However, the Constitutional Court has special powers in this regard, including the ability to review first and second instance decisions on writs of amparo (acciones de tutela) when they involve constitutionally relevant issues. Additionally, there is a special jurisdiction comprised, on the one hand, of indigenous courts in which conflicts between indigenous communities that occurred within their territory are resolved. And on the other hand, the jurisdiction for peace, in which collective as well as individual conflicts are resolved in equity. The Colombian Constitution also provides that arbitral tribunals are deemed to have jurisdictional powers.
As a general rule, processes are heard in two instances. Thus, a judge first hears a proceeding and then an appeal is filed in front of the respective hierarchical superior.
There are certain extraordinary recourses that may be filed under certain grounds established in the law, such as cassation and review action.
As a general rule, judicial processes in Colombia are public and, consequently, open for public review. The General Code of Procedure provides that the files of judicial proceedings may be reviewed by (i) the parties and their attorneys-in-fact, (ii) registered attorneys and (iii) third parties authorised by the judge for specific purposes; for example, academic.
Confidentiality only applies in certain cases specified under Colombian law. For example, in criminal proceedings where sensitive matters of special relevance are discussed, family proceedings when the interests or rights of a minor are involved and in processes in which confidential information is provided or is subject to reservation, as a business secret. In the latter, the parties must request confidentiality from the judge.
As a general rule, in order for a party to appear in a judicial proceeding, they must be represented by an attorney. However, the law provides the following exceptions, in which case a party may attend or initiate a judicial proceeding without the need for a proxy:
Lawyers must be admitted to practice in Colombia.
Litigation funding is not regulated in the Colombian legal system. However, the Civil Code provides for the transfer of litigious rights, by means of which one of the parties to a judicial proceeding, acting as transferor, assigns to a third party, as assignee, the uncertain right over the results of the proceeding. The transfer may be made onerously or for free.¬In accordance with the General Code of Procedure, the purchaser of a litigious right is entitled to intervene in the process as a co-party (litisconsorte) of the transferor. Likewise, the purchaser may be substituted into the proceeding, should the transferee expressly accept.
See above, 2.1 Third Party Litigation Funding.
See above, 2.1 Third Party Litigation Funding.
See above, 2.1 Third Party Litigation Funding.
See above, 2.1 Third Party Litigation Funding.
Colombian legislation permits contingency fees, as part of attorneys' fees, so long as they are agreed to. However, the value of the contingency fee and attorneys’ fees must be set equitably, be justified and be proportional to the service provided.
In this regard, Colombian law provides for disciplinary action to be taken in the event that (i) a disproportionate remuneration or benefit was agreed to, taking advantage of the need, inexperience or ignorance of the client; and (ii) an attorney agrees to or demands fees that exceed its respective representation of the client.
See above, 2.1 Third Party Litigation Funding.
According to Article 36 of Law 640 of 2001, extrajudicial conciliation is a procedural requirement for initiating certain proceedings, so long as there are matters that can be settled by the parties. If this requirement is not met, the judicial authority with jurisdiction over the proceeding may reject the claim outright.
Exhaustion of the Governmental Channel
In contentious administrative proceedings where the plaintiff seeks nullity of an administrative act of a particular nature, Article 161(2) of Law 1,437 of 2011 establishes that it is necessary that it has first exhausted all previous remedies that the law sets forth as mandatory, before initiating the claim. If this requirement is not met, the judge may deny the request.
Request for Necessary Protection Measures
Before initiating a process to protect collective rights, the plaintiff must file a direct request to the respective administrative authority for the protection of said rights. In the event that the authority does not comply, the plaintiff may initiate the proceeding (Article 144 of Law 1,437 of 2011).
For declarative processes, the plaintiff has ten years from the date the right becomes enforceable to initiate the proceeding.
For enforcement processes, the plaintiff has five years from the date the right becomes enforceable to initiate a proceeding. This type of action may be presented as ordinary action after five years, in which case it will have an additional term of five years, for a total of ten years from the date the right became enforceable.
It is important to note that there are special requirements for certain types of actions; for example, actions based on mercantile agency must be brought within five years.
In order for someone to be sued in Colombia, the claim must be (i) filed with a judge with jurisdiction over the defendant's domicile or, failing that, (ii) filed with a judge with jurisdiction over the plaintiff's domicile.
When related to a proceeding derived from a contract, the plaintiff is able to present the claim where the contract is executed.
In tort proceedings, the plaintiff may present the claim to a judge with jurisdiction over the place where the facts giving rise to the claim occurred.
These requirements are the same for all courts and depend only on the subject of the litigation.
The initial complaint must meet the following requirements (as per Article 82 of the General Code of Procedure):
The plaintiff may amend, correct or clarify the claim at any time from submission and until the judge sets the date of the initial hearing (Article 93, CGP). An amendment may only be made once.
Personal Service of Process
In Colombia, a defendant must be personally served of a claim. Service, therefore, requires that the plaintiff send a communication to the defendant, informing him of the existence of the proceeding, their personal contact information and that he must appear before the court to be personally served. The lawsuit and its attachments must also be annexed.
The defendant has 5, 10 or 30 days (according to his domicile) to appear at the court, a term that begins to run from the day after he receives the communication sent by the plaintiff.
The communication can be sent via email if the defendant's electronic address is known.
Service of Process by Written Notice
In the event that the defendant does not appear before court to be served personally, under the above-mentioned terms, the plaintiff must inform the defendant by way of notice, sending a communication on the existence of the proceeding and their personal contact information, together with an informal copy of the admission of the claim.
This service of process will be understood as served as of the day following the delivery of the written notice.
The communication can be sent via email if the defendant's electronic address is known.
When the plaintiff does not know the defendant’s domicile, once ordered by the judge, the plaintiff must publish the defendant’s information in a national newspaper and at the court. Once the summons has been published, the judge will proceed to appoint a curator ad litem.
It is possible to sue someone who is outside Colombia. The General Code of Procedure establishes that if the defendant lives abroad, he will have 30 days to go to the court secretariat to be personally notified. The communication may be sent by authorised postal mail or by email, if known. In the event that the defendant has no domicile or residence in Colombia, the competent court will be the one with jurisdiction in the plaintiff's domicile.
In the event that having been duly notified, the defendant does not file a statement of response or if it does not specifically respond to its facts and claims, the court will presume certain facts of the claim that are subject to confession to be proved. This will then be considered by the judge in his final judgment.
Popular Actions (Acciones Populares)
Law 472 of 1998 allows the presentation of popular actions to protect collective interests. They are used to prevent damage, stop a danger, threat or violation of collective rights, or restore things to a previous state.
This same law allows the presentation of class actions, which are filed by a group of people who meet uniform conditions with respect to the same cause that resulted in individual damages for said persons. This type of action does not necessarily involve collective rights but a set of individual rights.
Constitutional Action to Protect Fundamental Rights (Acción de Tutela)
In addition, Decree 2,591 of 2001 allows the filing of exceptional protective actions when collective rights are protected, provided that the plaintiff requires such action to avoid irreparable damage.
There are no legal requirements for estimating the cost of litigation.
However, the cost of attorneys' fees cannot exceed the respective representation of the client in the proceeding and the attorney must issue an invoice stating the payment of fees and expenses.
Pre-trial motions may be used to raise certain procedural matters but may not refer to a substantive matter of the litigation; however, they can lead to the proceeding being dismissed.
Injunctive relief in Colombia can be requested any time from the filing of the lawsuit up until the completion of the proceeding and, therefore, may be requested prior to the initial hearing.
One exception to this general rule is a request for injunctive relief using extra-procedural evidence, for which there are special norms provided in law.
There can be an early judgment: Article 278 of the CGP establishes the obligation for a judge to issue an early judgment when (i) the parties so agree, (ii) there is no evidence to be presented or (iii) when res judicata, settlement, the statute of limitations’ expiration and a lack of legitimacy in the case has been demonstrated.
An early judgment can be requested by the parties at any time during the process.
According to Article 101(2) of the CGP, the defendant can file a pre-trial motion (excepciones previas) within the term to answer the complaint.
Pre-trial motions may be used to raise certain procedural matters but may not refer to a substantive matter of the litigation; however, they can lead to the proceeding being dismissed.
When the judge does not need to review evidence to rule on a pre-trial motion, he or she may rule on them prior to the initial hearing and may end the proceeding in the event that there are procedural issues that cannot be resolved.
The dispositive motions that are commonly made before trial are as follows.
Interested Third Parties
Under certain circumstances, third parties with interest in the result of the proceedings may participate in the process. This implies that they will not be affected by the ruling, although they have the same rights as the parties to act during the proceeding.
A coadjutant is one who has a substantial relationship with either of the parties to the proceeding, but who will not be impacted by the legal effects of the sentence as a result of that relationship. These individuals can intervene in the process as long as there has not been a final ruling.
Intervention only exists in declarative processes. Whoever intends to be a coadjutant must submit a request to intervene, which will be subject to the judge's acceptance.
A coadjutant will enter the proceeding as it exists at the time of intervention, without the case revisiting the procedural stages.
Exclusive Intervention (Intervención Excluyente)
Whoever claims a controversial right in a proceeding already under way may intervene in the proceeding by formulating a claim against any of the parties to the process, which may only be done prior to the initial hearing.
A defendant cannot apply for an order that the plaintiff/claimant must pay a sum of money as security for the defendant's costs.
Article 365 of the CGP establishes that the judge will order a party who has received an unfavourable decision on pre-trial motions to pay the costs.
These costs will be settled at the discretion of the judge, who must adhere to the legal limits, which may be established on a case-by-case basis.
According to Article 590 of the CGP, a judge will grant bail to a person who has requested such injunctive relief. The judge will fix the amount of the bond according to legally established limits for such relief.
However, whoever requests injunctive relief shall not be granted bail when there is already a favourable ruling.
There is no time limit established for the court to resolve pre-trial motions or injunctive relief.
In civil proceedings, it is not possible to request urgent injunctive relief. This is possible in contentious administrative proceedings, in which a judge can immediately grant relief if the request complies with the requirements established in law, and if he is not obligated to present the request to the consideration of the other party, so that they may present defences.
There is no urgent basis procedure for any other request other than injunctive relief.
Colombian legal system does not provide for discovery, per se. Notwithstanding, documentary evidence (which allows the parties to obtain documents that are in the possession of their counterpart or a third party to use as evidence in the proceeding) and testimonial evidence may be ordered disclosed, as part of the evidentiary procedures established within the Colombian legal system.
The judge is responsible for conducting and managing the presentation of documents. There are no legal mechanisms to limit the cost of document disclosure.
It is possible to obtain documents from third parties through disclosure. In presenting such request, the interested party must specify (i) the purpose of the disclosure (what facts are intended to be disclosed), (ii) the type of document and its relation to the facts, and (iii) that it affirms that the document is in the possession of the corresponding third party.
If the request for disclosure meets the above requirements, the judge will order disclosure and will set a date and time for the third party to produce the evidence and to appear before the court for its disclosure.
A third party who is ordered to produce documents may oppose such order, alleging legal reservation, professional secrecy or that the disclosure may cause him harm. In the event that disclosure is opposed, the judge will assess the arguments of the opposing third party and if he finds that the arguments are not justified and that they possess the evidence, he may impose a fine of between five and ten minimum monthly wages in force at the time on the third party.
Colombian law does not provide for discovery, per se. The analysis of which documents the parties must disclose as part of a proceeding is done on a case-by-case basis.
The Third Section of the General Code of Procedure sets forth the rules governing the admission of evidence within a proceeding. This Section contemplates the following means of proof:
The judge can only assess evidence that has been requested, provided and introduced in accordance with what is provided by law. Likewise, and exceptionally, the judge may, at any stage of the proceeding, prior to issuing a judgment, order ex officio the presentation of evidence that has not been requested by the parties, when it considers that such action is necessary to clarify the facts of the case.
Under Article 74 of the Constitution, professional secrecy is inviolable.
Additionally, Article 24 of Law 1,437 of 2011, modified by Article 1 of Law 15 of 2015, sets forth that information and documents protected under professional secrecy enjoy special privilege and confidentiality. Similarly, under Article 28 of Law 1,123 of 2007 lawyers have a duty to maintain professional secrecy even after they have finished providing their services.
In Sentence C-301 of 2012, the Constitutional Court established that professional secrecy can only be lifted when an attorney knows of the possible commission of a crime and disclosure becomes necessary to safeguard the rights of third parties.
Under Colombian law, there is no difference between professional secrecy with an outside lawyer or an inhouse lawyer.
Colombian law provides for special rules on the legal reservation of documents related to issues such as national security and defence, the intimacy and privacy of a person, and commercial or industrial secrets.
In general, injunctive relief can be granted to prevent the infringement of a right that is the subject of the proceeding, to prevent damages, to halt certain damages that have already been caused or to ensure the effectiveness of a final judgment. The law provides for unqualified and qualified injunctive relief. Unqualified injuctive relief is any measure that the judge deems reasonable for the aforementioned purposes. On the other hand, there are three sorts of qualified relief:
To order unqualified injunctive relief, the judge must consider the initial prospect of success of the claims and the necessity, effectiveness and proportionality of the requested relief.
Regarding injunctive relief aimed at preventing parallel proceedings, taking into consideration that there exists a fundamental right to the administration of justice in Colombia, a judge may not, in principle, order a party to refrain from initiating a specific proceeding. In such cases, the affected party must argue in the second proceeding that there is already a proceeding on the same matter (lis pendens) or that the second proceeding cannot be advanced because it is necessary to wait for the result of the first proceeding to conclude.
The law provides that judges must issue their orders within a period of ten business days. However, in practice, these terms are not always met. Although judges usually resolve requests for injunctive relief expeditiously, specific times depend on each particular case.
In civil and administrative litigation, there are no emergency judges who operate outside the normal hours of other judges or who are in charge of resolving requests for injunctive relief or other requests of an urgent nature.
Colombian law provides for the possibility of obtaining injunctive relief ex parte.
The defendant can request compensation for damages caused by the implementation of injunctive relief that is eventually revoked or that was put in place as part of a proceeding that ended in his favour. For this, the law provides for the possibility of initiating a claim for the regulation of damages within the same procedure in which the injunctive relief had been decreed.
Article 590 of the General Code of Procedure states that for an injunctive relief to be ordered, the plaintiff must provide a bond equivalent to 20% of the value of the claim to guarantee damages that the implementation of the injunctive relief may cause the defendant. The judge, ex officio or at the request of a party, may reduce or increase the amount of the bond, if he considers it reasonable.
In collection proceedings (procesos ejecutivos), the defendant can request that the judge order the plaintiff to provide bond of up to 10% of the total value sought, in accordance with Article 599 of the General Code of Procedure.
Colombian law does not provide for this type of injunctive relief.
A Colombian judge cannot order injunctive relief against a person other than the defendant, as this would constitute a violation of the right to defence of that person.
Without prejudice to the potential penal sanctions that may apply, Article 44 of the General Code of Procedure allows the judge to order up to 15 days of imprisonment of a person who prevents or hinders the completion of a proceeding and to impose fines of up to ten legal monthly minimum wages to those who, without just cause, fail to comply with a judicial order.
On the other hand, the plaintiff may initiate an executive proceeding for breach of an obligation, so that a judge may compel the person who has breached an injunctive order to comply.
Proceedings before civil courts and under the contentious administrative jurisdiction consist, as a general rule, of an initial written stage, in which the parties exchange the initial claim, an answer to the claim, counterclaims, answers to counterclaims (these last two, if applicable), pre-trial motions and written responses to any pre-trial motions.
After this initial stage is concluded, the law provides for two hearings, the first of which is an initial hearing (Article 372 of the General Code of the Procedure), in which (i) pre-trial motions are resolved; (ii) a conciliation hearing is held; and, if the parties do not settle the dispute amicably, (iii) the judge questions the parties; (iv) the litigation is set; and (v) the judge orders the production of evidence.
Next, the judge must set a date and time for instruction and a trial hearing, in which the presentation of the following evidence will be carried out: (i) interrogation of experts, (ii) testimony and (iii) the disclosure of documents. At the conclusion of the trial, each of the parties will be given the opportunity to present 20-minute closing arguments orally. Once the parties have been heard, the judge, as a general rule, must then orally issue his ruling in the same hearing.
Notwithstanding this general rule, the judge may exceptionally issue a written judgment, after explicitly stating the reasons why he could not do so orally and after having expressed, in court, the basis for his decision and a brief statement of its grounds.
Colombian procedural law does not provide for management hearings during proceedings. As a general rule, it does not set forth specific procedures for shorter hearings, with the exception of extra-procedural evidence (Articles 183 and thereafter of the General Code of Procedure). Extra-procedural evidence is presented at the request of a party, upon notification of the counterparty, and for such to be presented, the judge must set a date and time for a hearing.
The Colombian legal system does not provide for jury trials in civil or contentious administrative cases.
In accordance with Article 173 of the General Code of Procedure, in order to be accepted by the judge, evidence must be requested, presented and introduced into the proceeding within the terms and opportunities set forth by law. Such opportunity exists, primarily, during the presentation of the written claim, the answer to the claim, pre-trial motions, counterclaims, an answer to a counterclaim and in written response to pre-trial motions.
It is permissible to request expert testimony as evidence during a proceeding. The parties are able to request the testimony of an expert witness during the appropriate evidentiary opportunities and the judge may also request such testimony ex officio, provided that the requirements of Article 169 of the General Code of Procedure are met, according to which the judge may only call a witness ex officio if it appears mentioned in any evidence, or in any procedural act of the parties.
Hearings are, as a general rule, public. The transcripts of hearings can become part of judicial file. Under the terms of Article 123 of the General Code of Procedure, judicial files may only be examined by the parties, their attorneys and their authorised judicial dependants; lawyers registered with the Superior Council of the Judiciary, once the defendant has been notified; judicial assistants in their designated cases; public officials by reason of their position; persons authorised by the judge for the purpose of teaching or scientific research; and directors or members of a duly accredited legal office, in cases in which their office appears.
Article 42 of the General Code of Procedure establishes that it is a duty of the judge to direct the proceeding, ensure its rapid resolution, preside over hearings and take all measures to avoid delaying the process and to promote procedural economy.
In each hearing within a proceeding, the law establishes that the judge must decide on different points, as explained in 7.1 Trial Proceedings.
In accordance with Article 121 of the General Code of Procedure, verbal proceedings must be concluded in first instance within one year from the notification of the admission of the claim. In second instance, within six months from the reception of the file in the secretariat of the second instance court. These terms may be extended once for additional six months, with due explanation of the judge or magistrate on the need for the extension.
The law establishes that procedural actions that take place after the expiration of these deadlines will be null and void. Notwithstanding, the High Courts have interpreted this provision in differing ways: while under the current jurisprudence of the Civil Chamber of the Supreme Court of Justice, this nullity is non-curable, the Constitutional Court has held that, to determine whether the nullity is curable or not, the circumstances must be reviewed on a case-by-case basis if:
Based on the different approaches to the standard, in practice, there are a considerable number of cases in which the deadlines contemplated in Article 121 of the General Code of Procedure have not been met.
Generally, and regardless of the method used to reach the settlement, an agreement reached by the parties to solve their differences or the decision of one of them to end the proceeding requires the approval of a judge. However, it is enough, as a general rule, to inform the judge as to the agreement or the decision to end the process. Such agreement or decision may be made at any time but prior to the first instance judgment. Furthermore, settlement is only possible when matters are freely negotiable, that is, when they can be freely renounced.
As will be explained later, there are three ways in Colombia to resolve or end a judicial proceeding prior to a judgment and each requires the approval of the judge. These are settlement, conciliation and withdrawal. The role of the judge vis-à-vis each of these decisions, as well as their purposes, varies and depends on the type of proceeding that is being carried out.
With regard to withdrawal, although an act of one of the parties to waive one or more of its claims, it can occur within the framework of an agreement for the termination of the proceeding and, as such, although it may not correspond to the agreement itself, may be its manifestation or materialisation. The rules for withdrawal are contained in Articles 314 and 315 of the General Code of Procedure, which contain some considerations or special circumstances under which withdrawal operates.
For example, in cases in which there is partial withdrawal, the process will continue with respect to the claims that have not been withdrawn. Likewise, if a counterclaim was filed, it must continue with the counterclaim if its claims were not waived. In addition, under Colombian law, withdrawal must be unconditional and will only affect the party who makes it, as well as his successors. In addition, even when the withdrawal occurs as a result of an agreement between the parties made outside the proceeding, it is enough for the party to express its decision to withdraw in order for the court to process it, without it being necessary to disclose the respective agreement.
The conciliation stage in a general procedure takes place in the first hearing, that is, before evidentiary hearings and prior to the trial stage. According to Article 372(6) of the CGP, the judge is obligated to assume an active role within this process, by proposing methods for settlement, without implying prejudice. Regarding the circumstances under which approval must be obtained, there are no special considerations in the law except that the parties agreed on the terms of the conciliation and that such agreement be incorporated in a court decision, which can be used in the future for an eventual execution in the event that one of the parties fails to adhere to what is agreed. While there is no conciliation stage in general proceedings during the second instance, nothing prevents that conciliation happens during the appeal, should the parties so request. As in the case of withdrawal, it is possible to reach a conciliation agreement in all or part of the claims; however, in the latter case the proceeding will continue for those claims that have not been the subject of conciliation.
In an administrative proceeding (ie, a proceeding for disputes between State agencies or between the State and individuals), the rules on judicial conciliation are contained in Article 180 of the Code of Administrative Procedure and Contentious Administrative Proceedings (CPACA), which, although they follow a logic similar to those of the general procedure, have some peculiarities. The most notable is that if the State entity does not succeed in the first instance and appeals the decision, before granting the appeal the judge must call a new conciliation hearing that the parties must attend, particularly the State entity, and in the event that they do not do so, its appeal (ie, that of the State entity) will be deemed withdrawn.
Settlement is understood under Colombian law as a contract by virtue of which the parties resolve or prevent an eventual dispute by agreeing to reciprocal concessions with one another. These two elements are the essence of the settlement agreement and, therefore, constitute the fundamental requirement for it to be approved by the judge. Additionally, in accordance with Colombian law, not only must the right exist, but the litigation must be pending, regardless of the instance in which such agreement is reached. As in the case of withdrawal and conciliation, the parties can totally or partially settle their differences through this type of agreement. If they partially agree to settle, however, the proceeding should continue for those claims on which the parties did not reach a settlement agreement.
A settlement can remain confidential if it contains classified or reserved information, which must be previously informed to the judge.
The general rules of procedure allow any lawyer, even without being an attorney in the respective proceeding, to have access to a judicial file. In addition, third parties may be authorised to review a file for academic and scientific purposes. Additionally, Law 1,712 of 2014 on transparency and access to public information provides that it is possible to have access to information that has been obtained or is being controlled by any State entity, including the judicial branch.
While this may entail the possibility that any information obtained, controlled or guarded in a Colombian court or tribunal is public and can, therefore, be accessed by anyone, the same Law 1,712 of 2014 allows the information to be deemed classified or reserved and, as a result, its disclosure be made impossible. This occurs when the disclosure could affect:
Settlement agreements that have been approved (and that contain clear, express and enforceable obligations) can be executed against the debtor within the same process and before the same judge, for which it is enough for the creditor formally to request the payment of the obligation, a request in which he can also ask the payment of interest, damages and other charges such as updating or indexing the debt.
Although, as in any executive process, the debtor has the possibility of filing exceptions following a request for payment made by the judge (referred to in the Colombian proceeding as an order for payment), in the case of obligations arising from a settlement or from a conciliation, the only defences that could be filed by the debtor are:
Additionally, in so far as both the agreement reached by the parties in the conciliation and in the settlement, as well as the decision of one of them to desist from one or all of their claims definitively resolves the dispute and results in res judicata, both the agreement and the withdrawal can be used to oppose a new judicial proceeding involving the same parties, tried for the same causes as those of that which was settled or withdrawn.
According to the Colombian Civil Code, it is possible to set aside a settlement agreement when (i) as a general rule, it has an illegal purpose or cause, there is a lack of consent or it has been executed by someone lacking legal capacity; (ii) likewise, when the settlement was obtained under false pretenses or as a result of fraud or violence; (iii) if the document supporting the transaction is null; (iv) if there is res judicata and at least one of the parties did not know that such a decision existed; and (v) if one of the parties had no right to what was agreed and the party was not aware of that.
As per conciliation, since it is an agreement, it may be set aside by invoking the general grounds of nullity provided under the Colombian Civil Code applicable to "any act or contract", this is (i) when those who entered into the agreement lacked legal capacity or did not have the power to conciliate, (ii) if there was a lack of consent that affected the will to conciliate (ie, error, coercion or fraud) and (iii) in the event that the conciliation were reached over an illegal object or cause. Similar grounds apply for the withdrawal (product of a termination agreement that has not been submitted to the judge) since, although it is not an agreement, it is a unilateral legal act made by the party.
In Colombian general procedure, however, there is no legal provision that allows filing a petition for nullity or annulment of an agreement or decision to terminate a proceeding before the same judge, so it will be necessary to file a separate claim within which the party seeks to set aside the settlement agreement, the conciliation agreement or the withdrawal.
In cases of contractual civil liability, the plaintiff may request, at his election, the termination or fulfilment of the contract and, in either case, compensation for the damages he has suffered.
In cases of non-contractual civil liability, the plaintiff can claim compensation for the damages he has suffered.
In Colombia, the comprehensive reparation rule applies (Article 16 of Law 446 of 1998), so that the compensation awarded in favour of the plaintiff must be limited to returning things to the state they were in before the unlawful act of the defendant. In relation to this, in Colombia there are no punitive damages, since that would imply that the plaintiff would be in an even better position than he was before suffering the damage.
Finally, in cases of contractual civil liability, Article 1,616 of the Civil Code indicates that, if it is not possible to prove that the defendant acted with intent or gross negligence, he is only liable for foreseeable damages.
According to Article 1,608 of the Civil Code, a debtor is in default when it fails to fulfil his obligation within the stipulated term, when it could only fulfil his obligation at a certain time and has not done so, and, in other cases, when the creditor has judicially challenged it. A debtor is understood to have been judicially challenged upon the filing of a lawsuit, so long as notice of the writ of admission of the claim is made within one year from the day following notification of such decision to the plaintiff. Once this requirement has been met, the claimant may be entitled to pre-judgment interest.
Default interest can also be collected on the amounts that are recognised in the judgment, so long as it is requested in the lawsuit. The applicable rate will be one and a half times the current bank interest.
In civil matters, according to Article 306 of the General Code of Procedure, the same judge who heard a trial in the first instance may be requested to enforce a judgment.
In all other cases, or if the plaintiff decides not to use this option, he must initiate an executive proceeding, attaching the initial judgment. As part of this executive proceeding, the defendant may request the attachment or seizure of the defendant's assets.
In regard to administrative matters, in accordance with Article 192 of the CPACA, a public entity has ten months from the date in which the ruling becomes final to comply with it.
If the public entity does not comply with what is ordered in the judgment within those ten months, the plaintiff may initiate collection proceedings, pursuant to Article 307 of the General Code of Procedure and 299 of the CPACA.
Judgment issued by foreign judges can be recognised in Colombia through an exequatur process.
In order for a foreign judgment to be effective in the country, it must meet the following requirements:
The proceeding will be transferred to the affected party for a period of five days, so that it may rebuke it. Next, the judge will order evidence to be produced and will set a hearing in which the evidence will be presented, the allegations of the parties will be heard and a judgment will be issued.
Once the foreign judgment has been recognised, it is possible to initiate an executive proceeding to assure compliance.
As a general rule, there is just one level of appeal for Colombian proceedings; however, there are several review mechanisms within the process that parties may utilise. The first is a revocation remedy reconsideration (recurso de reposición) that can only be filed with and decided by the same judge that oversees the case. This type of remedy can be sought in any case, as there are no specific grounds for it and one of its only limitations is that it may not be used against decisions that have already been revoked, unless there are new points that have not been previously discussed.
Another mechanism is the so-called reconsideration remedy (recurso de súplica), which is available for judgments that (i) while appealable, are not subject to a new appeal because one is already being processed in the appeals court; or (ii) have been denied an appeal or cassation; and (iii) likewise, this remedy may be sought during cassation or revision, two additional remedies that will be referred to below.
Cassation (recurso extraordinario de casación) has the main purposes of integrating the legal system through jurisprudence, to create stare decisis and to control the legality of the decisions of courts of appeal. As a general rule, this remedy is available against judgments of the appellate courts whose amounts exceed USD276,000. It is heard by the respective chamber of the Supreme Court of Justice upon the file of a formal cassation petition and after the exhaustion of an earlier procedure to have the petition for cassation granted by the respective appeal court. In Colombia, the grounds for cassation are exhaustive and include the following:
The complaint recourse (recurso de queja) can be filed before appeal courts so that they may determine whether a trial judge correctly denied an appeal. This recourse may also be used against appeals court judgments that deny cassation or appeal for review, in which case it must be filed before the respective chamber of the Supreme Court of Justice.
Regarding the extraordinary appeal for review (recurso extraordinario de revisión), it should also be filed before the respective chamber of the Supreme Court of Justice and only for specific grounds, including (i) judgements in which it was not possible to collect evidence due to force majeure or acts of God, or in which the evidence collected is affected by crimes committed or carried out against witnesses, experts or judicial officials. Likewise, (ii) this recourse may be used when there were failures in the notification or errors in the representation of a party; (iii) when the judgment is null; or (iv) when the judgment violates res judicata.
The sole event in which it might be possible to identify some sort of levels of appeal is in proceedings to annul administrative acts affecting the interests of a specific person or group of persons, which is a type of tort governed by Colombian administrative law. According to the CPACA, a person who is affected by an administrative act (ie, a unilateral decision of a certain State entity) can discuss its legality by initiating a procedure that shall carry out in two instances the same State entity that issued it. After that, it is possible to continue the discussion before administrative judges also in a two-instance process, but in this new level before the Courts. In accordance with Colombian law, it is essential first to complete the administrative procedure (ie, the first level of appeal), before initiating the process before the courts (ie, the second level of appeal).
The CPACA (which contains special rules on administrative law that are enforced by administrative judges) provides for a special appeal for the unification of jurisprudence (recurso extraordinario de unificación de jurisprudencia), applicable only to matters related to disputes between State entities and these entities and individuals. Similar to cassation, such proceedings are carried out with the purposes of unifying jurisprudence and controlling the legality of the administrative courts’ judgments, whenever a judgment issued by a lower appeals court opposes the jurisprudence of the Council of State (the highest court with jurisdiction over administrative law matters in Colombia). Likewise, the CPACA introduces a resource that it refers to as the review mechanism (mecanismo eventual de revisión), which is applicable to popular and group actions filed before administrative judges.
To the extent that Colombian law provides for procedures that, either for the matter or the amount, are subject of a single instance, it is important to clarify that appeals are not available in all cases and that appeal only exists for those proceedings for which the law itself stipulates the case will be heard in two instances. Additionally, civil, commercial, labour, criminal and family matters are addressed by courts of appeal placed in districts located in primary cities, while administrative matters are, in some cases, decided by appeals courts, which are located in each Colombian State and, in other cases, by the Council of State Council itself.
As a general rule, it is subject to appeal any disagreement with a first instance decision, so it can discuss issues related to the procedure or the merits (ie, the way the dispute was addressed by the judge of first instance). In other words, there are not, at least for judgments, specific or exhaustive grounds for an appeal. The sole limit is that the point or points that are subject to review before the appeals court are the same as those presented by the appellant to the first instance court when requesting appeal.
Another important element to consider in the appeal process is that new evidence may be requested. Although the proceeding does not prima facie allow that during the appeals the court collects evidence, the request and introduction of new evidence is possible, only when:
Another important point is the grounds on which an appeal can be granted. In accordance with the general rules of procedure, an appeal against judgments is granted under the devolutive effect, so the sole appeal does not suspend the enforcement of the judgment. Only in the event that both parties appeal the sentence is it possible to suspend it. However, even if the appeal is granted under the devolutive effect and the judge is empowered to continue with the enforcement of the judgment, no money or goods can be seized.
An appeal against judgments takes place on two levels: (i) first level, before the first instance judge, who decides whether the judgement is subject to appeal; and (ii) second level, before the appeals court, which decides whether there are grounds to grant it and therefore to overturn or affirm the first instance decision. At the first level, the appellant must explain during the final hearing after the first instance judgement is rendered, or within the three following days if the appeal was rendered outside the hearing, the reasons that it disagrees with the decision of first instance. If it does not do so, the trial judge or the second instance judge may refuse to continue with the appeal. After this, the judge of first instance will order copies of the documents he considers necessary for enforcement and execution. The cost of these copies must be paid by the appellant; if he fails to make such payment, the appeal will not continue.
Following this, the file will be sent to the appeals court, which must conduct a prima facie analysis of the appeal. In its analysis, the court may ask that any formal omission made by the first instance judge be fixed (eg, not having signed the judgment), order a nullity or adjust the terms under which the appeal was granted, in which case it will take up the proceeding. If none of this is needed, the court will admit the appeal and will summon the parties to a hearing in which:
The procedure for appealing administrative proceeding judgments may have some slight variations. For example, the term for filing is ten days and if the judge believes that there is no reason for a hearing, he can order the parties to file their allegations in writing within ten days from the conclusion of the evidentiary hearings.
As there are no restrictions for parties to appeal, it is usual that in two-instance proceedings parties usually file appeals, for it is difficult to determine the events that 'trigger' an appeal in Colombia.
In general, the court of appeals may consider all those matters that were announced by a party when it filed its appeal in the first instance and that were sustained by it throughout the course of the appeal. Considering this, and as explained above, any objection against the decision of the first instance can be proposed during the appeal without any limitation. This possibility, however, is restricted to the specific aspects that were debated in the first instance, so it would not be possible to explore or discuss new points.
In any case, while Colombia follows the principle non reformatio in peius (ie, the appellant may not be placed in a worse position than it was prior to appeal), there are two important notes on the scope of the powers of the court when making a decision in the course of the second instance, which may run contrary to this principle: (i) if both parties appealed, the court may decide without limitation; and (ii) in cases where the law permits, even on matters that had not been part of the appeal or even debated in the first instance, the court may render ex officio decisions (eg, when it must declare an unlawful purpose or cause with respect to an act or contract).
Apart from the conditions that are specific to the proceeding and that appear in the law, as previously mentioned in this section, there is no possibility for a court to impose conditions on granting an appeal.
Apart from what has been previously mentioned in this section, including the power to request evidence ex officio, appeals courts have no power other than to render a second instance judgment confirming, revoking or reforming the decision of the first instance judge.
In Colombia, two concepts must be differentiated: costs or expenses and the so-called legal agencies (agencias en derecho). While the former corresponds to the costs that must be borne by the parties, such as travel and general expenses, the legal agencies refer to attorneys’ fees or the fees charged by other participants in the proceeding; for example, experts appointed by the judge.
While most costs or expenses can be recognised if they are proven, in many cases they are determined by the judge, at his discretion and from ranges previously established in by the Superior Council of the Judiciary, which is the highest disciplinary court of judges and lawyers who, in Colombia, perform functions similar to bars or bar associations in other jurisdictions. The same goes for legal agencies and the fees of experts and justice assistants. Instead of being determined by market values or by what the parties have actually proved, the judge sets them discretionally, considering the nature, quality and duration of the case or the action or intervention of the attorney.
At the same time, while, as a general rule, all the costs related to the proceeding (ie, costs and legal agencies) must be borne by the person who lost, there is an exception in administrative proceedings for those processes that are deemed "of a public interest." For some time the Council of State had held that the awarding of costs should consider certain subjective criteria, such as recklessness or bad faith of a party. However, it recently changed its position and now believes that there should be objective criteria applied to the calculation of costs and, correspondingly, applies the previously discussed rules of the general procedure governing this matter.
Parties or the third party to whom the costs in question correspond (ie, experts appointed by the judge) may object to the costs within three days from receiving the decision in which such costs were fixed. Once an objection has been made, the judge will ask the other party to present his response to the objection, within three days. The judge will then render a decision, which can then be appealed using the revocation remedy, before the same judge or an appeal before the respective appeals court.
In any case, within the three days following the issuance of a ruling establishing costs, the party that owes the costs must pay them to the respective court or tribunal so that they may be handed over to the other party, without any additional order in the middle. If the costs are not paid, the person favoured by the decision may initiate collection proceedings against the debtor so that the judge may order its immediate payment. In such event, not only can the debtor not appeal the request, but his sole defence is the payment.
As previously mentioned, the judge must consider objective factors when setting costs, which includes, on the one hand, the values previously established by the Superior Council of the Judiciary for certain expenses (eg, copies, certifications and notifications) and, on the other hand, the costs that have been proven. As for agencies, as has been indicated, the judge must consider the ranges provided by the Superior Council of the Judiciary and determine a corresponding value within those ranges to apply to the case, considering the nature, quality and duration of the attorney-in-fact’s or the expert’s engagement with the case.
The judge can also take into account the number of parties that were involved in the proceeding and distribute costs in proportion to their interest. Moreover, if costs are to be awarded to several parties, the judge must issue a separate decision for each party, indicating what portion of the costs to be paid corresponds to each.
Interest is only awarded when (i) a party has been ordered to pay costs, (ii) that party has refused to pay and (iii), as a consequence of its refusal, the party has defaulted in its obligation to make payment. In such case, late interest on the costs or legal agencies may be applied if there is an order from a judge that established the costs and determined their value, which was definitive, and the debtor has refused to pay such costs.
The form of ADR most frequently used in Colombia is conciliation, which is seen as an important mechanism not only to promote amicable resolutions to disputes, but also for decongesting the courts. Conciliation has long been supported by two specific legal requirements, which help to promote it, as well as allow consolidated conciliation to serve as an ADR mechanism in the country. The first is the legal requirement that conciliation first be attempted before a judicial proceeding is able to be initiated (with the exception of certain processes, including those where injunctive relief is sought). The other is that cases must be tried before a conciliation centre that has been recognised and accredited by the Colombian State.
The requirement that conciliation be pursued prior to a judicial proceeding is not only required in civil, commercial and family matters, but also in matters related to administrative law. In administrative cases, however, conciliation can only be attempted before the Public Service General's Office, under special rules.
In line with 12.1 Views of Alternative Dispute Resolution in Your Country, in Colombia, conciliation as a method of ADR is promoted to the point that it is mandatory before initiating any judicial process, with few exceptions. Additionally, conciliation is part of the judicial procedure for civil, commercial and family matters, as well as those related to administrative law matters.
Regarding sanctions, although there are no sanctions for the refusal to conciliate, Colombian law provides for certain penalties of a pecuniary and procedural nature, for either not appearing for conciliation or omitting conciliation, which range from an imposition of fines by the judge, to considering such conduct (ie, not attending a hearing) as a red flag against him, to a complete rejection of the lawsuit, which would prevent the respective judicial proceeding from moving forward.
As also mentioned in the previous section, the Colombian State, through the Ministry of Justice and Law, monitors and supervises not only the creation, but also the operation of conciliation centres. In order to be approved and to continue rendering services, not only is the organisation of a centre reviewed, so are its regulations and the lists of arbitrators and secretaries. As a result, such institutions are well organised within the country.
Arbitration in Colombia is governed by Law 1,563 of 2012 and is basically divided into two types of procedure: that applicable to proceedings categorised as domestic arbitration and the other categorised as international arbitration. As in other jurisdictions, an arbitration will be deemed domestic when there is no element in the dispute or in the arbitration agreement indicating that it should be deemed international. Now, in Colombia, an arbitration may be deemed international if (i) the parties at the time of entering into the agreement had domiciles in different countries, (ii) the place of performance of a substantial part of the contract or of an agreement that has a close relationship to the litigation is in a different country, or (iii) the dispute affects the interests of international trade.
The rules of procedure of domestic and international arbitration are different. Hence, the rules for conducting an arbitration, the grounds for annulment of an award and the impact of the arbitration agreement are different. In addition, the rules of domestic arbitration refer to rules that had existed under previous regulation, while the rules of international arbitration build off of (although with some differences) the UNCITRAL Model Law on International Commercial Arbitration.
Given this, the rules for the recognition of arbitral awards are contained in the Third Section of Law 1,563 of 2012, on international law. As a general rule, such procedure must be followed for those awards that have not been issued in Colombia, since those awards that have been rendered in Colombia, even if considered international, are comparable to a Colombian award or judgment and, therefore, should not require recognition.
The grounds for denying recognition are similar to those contained in the New York Convention or those prescribed in the UNCITRAL Model Law and include:
The recognition procedure is simple. Whoever intends to initiate such a proceeding must file the respective request for recognition before the judicial authority. If this is included with all the annexes provided for under the law, the party against whom recognition is sought will be informed so that it can respond within ten days. Following this, the judicial authority will decide whether to recognise the award. If it decides to recognise it, the party who requested recognition may initiate an enforcement proceeding before Colombian judges to demand enforcement, a procedure that, as indicated above, will begin with an executive claim. After such claim has been admitted, the debtor may only present defences related to:
One important note regarding the procedure for recognition of awards in Colombia is the judicial authority with jurisdiction on the request. For private parties, the Civil Cassation Chamber of the Supreme Court of Justice will hold jurisdiction on the matter, while in those cases that a public entity participates, the Full Chamber of the Third Section of the Council of State will have jurisdiction.
To date, the position of the Colombian Courts, particularly that of the Civil Cassation Chamber of the Supreme Court of Justice, is to apply the principle of pro-recognition, with strict tests to be applied to any oppositions that may be filed against a request for recognition.
In the context of domestic and international arbitration, it is not possible to arbitrate matters that cannot be freely renounced (eg, citizenship and legality of State actions), unless the law allows it, nor matters expressly excluded by Colombian law itself.
The mechanism through which an arbitral award can be challenged is through a setting aside recourse. However, as explained above, the potential causes giving rise to a challenge vary depending on whether the arbitration is domestic or international. In the case of international arbitration, the grounds for setting aside the award are similar to those for recognition, referred to above, and include:
For its part, the grounds for setting aside a domestic award include:
There are two additional mechanisms for challenging an arbitration award in Colombia. The extraordinary appeal for review, as indicated above, is permitted when the award was supported by evidence that could not be provided due to force majeure or acts of God, or are false or were in any way affected by crimes committed against witnesses, experts or officials. Likewise this may be used when there were issues with the notification or errors in the representation of one of the parties, nullities arising from the award, or contradictions with an earlier decision is considered res judicata. The other mechanism for contesting awards is a writ of amparo (acción de tutela), which is a mechanism provided in the Constitution for safeguarding fundamental rights, such as due process.
The procedure for enforcement of awards, whether domestic or international, is the same for the enforcement of a judgment issued by a Colombian court and as indicated in various sections above, the creditor may initiate collection proceedings against the debtor. Once the request for enforcement is admitted, the judge may require the debtor to proceed with the payment and the debtor may only present as defence:
In relation to the procedure for the enforcement of foreign awards, as explained above, it is necessary first to complete the respective recognition procedure and, once this has been done and the recognition of the award in the jurisdiction has been obtained, an executive claim may be filed to enforce the award.