THE ARBITRAL JUSTICE IN COLOMBIA: ALTERNATIVE DISPUTE RESOLUTION SYSTEM (ENGLISH VERSION)
| Jurisdiction | United States |
(April 2003)
THE ARBITRAL JUSTICE IN COLOMBIA: ALTERNATIVE DISPUTE RESOLUTION SYSTEM (ENGLISH VERSION)
Martínez, Córdoba y Asociados
Bogota, Colombia
Notwithstanding the clear separation of public powers which Colombia has had during its republican life, and the notorious respect to its Institutions, the judicial branch has not always been up to the citizen's expectations of having at their disposition a speedy and reliable justice. The accentuated affect to the formal processes and the written procedures, have been factors that frequently have traditionally caused the judicial process to become very slow. This explains the growing acceptance to the arbitrage procedure. During the last twenty five or thirty years, the arbitrage procedure has turned out to be an effective tool to settle conflicts.
I. Definition of arbitrage
The arbitrage can be defined as an special judicial procedure, which makes possible, due to the autonomous will on the parties, to turn over to the individuals the solution to the transactional conflicts. As a collegiate body, those individuals, acting as arbiters, are automatically invested of jurisdiction to issue a decision, which has the same legal category and generates the same effects of a court decision. The transfer to individuals, which are integrated to a tribunal court, of the development of the arbitral function of judicial type, has received plain acceptance of the highest Colombian Courts1
II. Constitutional basis of arbitrage
The support given by the highest Courts to the arbitrage, is based on the incorporation that the updated Constitution in Colombia has on this alternative dispute resolution system2 . This marks a difference with what is happening in other nations, in which the arbitrage does not have the support of the constitutional provisions, as a source for its existence and functioning.
III. Positive aspects of arbitrage
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There are several advantages offered by the arbitrage in Colombia, which most outstanding ones are: universality, promptness, simplification and informality of the proceeding, efficiency and quality of the decision.
a. Universality: if they are transactional, the arbitral justice can get to know and solve all kinds of conflicts. In the proposed Act No. 085 of 2002, submitted to the consideration of the Senate of the Republic of Colombia by the National Government, and which is still being in process at the National Congress, in order to count in the future with a sole statute that covers all the dispositions that regulate the arbitrage, it is established : "Article 2. Matter object of arbitrage. Are subject to arbitrage the controversies on maters of free disposition, of patrimony content, as well as those matters that the parties decide to submit to arbitrage and that are not excluded or prohibited by express disposition by Law".
b. Promptness: is one of the most interesting aspects of the arbitrage, in as far as the parties are in the pppppossibility to agree the time limit in which the award will be produced, foreseeing in the pertinent norms that, in lack of such agreement, the maximum term will be of six months.
c. Simplification and informality: when we compare with the ordinary system of justice, the main oral component and the significant discretion which the arbiters in an arbitral proceedings can count with, is covered by a convenient simplification and liberates them in a high degree of excessive formalities.
d. Efficiency: as mentioned before, the arbitral awards generate the same effects as the judicial decision issued by the judges, but are not submitted to an appeal, nor "cassation" (extraordinary annulment) before the Courts.
e. Quality of the sentence: in general, the intellectual level of the chosen arbiters and its professional qualifications, the later one when they decide by rule of law, since it is necessary that the arbiters be lawyers, assure a high degree of success in the arbitration awards.
IV. Types of arbitrages
By the principles they are ruled by, the tribunal courts of arbitrage can be classified in three categories in Colombia: in consciousness, by rule of law and technical. We will examine the basic characteristics of the three types of arbitrage mentioned before:
1. Sentences in consciousness or based in equity : that is the way that the arbitral proceedings are standardised, which are conducted by arbiters that do not have to be lawyers and that act according to the honest principles of common
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sense and of careful analyses of the matters submitted to its study and decision. In this case the arbiters are not in an obligation to apply the substantive norms, nor the legal standard of proofs. It is a custom to select people of correct performance in the community, of irreproachable background of conduct and of a recognised intellectual integrity.
2. In the Article 11 of Act 446 of 1998, a clear definition is made of this kind of arbitrage: "Arbitrage in equity is that in which the arbiters decide according to the common sense and equity". In the Article 14 of the proposed Act No. 085/2002 - Senate, to which it was mentioned before, is read "Conditions to be an arbiter. In the national arbitrages the natural person that are in plain exercise of the civil rights, can be arbiters. If it is an arbitrage in right, it will also be required that they be lawyers in practice".
3. Sentences based in rule of law: Two characteristics define these kind of sentences as follows: the forced application of the substantive rule of law and the application of the regulations that contemplate the Law of Evidence.
4. Technical sentences: are those that are aimed toward solving a conflict of technical character, which presupposes in the arbiters a special scientific, artistic or professional knowledge. The arbiters have complete autonomy as far as the processing aspects are concerned.
For the territorial aspect, the arbitrages, that the Colombian Law contemplates, can be of national character of international nature. In the first case, they are carried out in Colombia, adjusted to the Colombian Law, to give solution to conflicts on rights and obligations referred to the territory of this country. The international arbitrages are ruled by the international law and generate legal consequences in different states.
Bearing in mind its origin, the arbitrages can be voluntary or enforced. In the first alternative, the autonomous decision of the parties is involved, whilst in the second pppppossibility it is the Law that ordains it. The enforced arbitrage in Colombia is foreseen only in the labour ambit.
Three alternatives are presented to classify the arbitrages in Colombia, in function of the way they act: legal, institutional and independent. The elements that characterise the three indicated possibilities can be summarised as follows:
a. It is considered that the arbitrage is legal when has to be adjusted to the updated regulation, due to the fact that the parties have not determined a special procedure, as it occurs when the arbitrage is independent, or not having agreed the observance of a rule of a centre of arbitrage.
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b. The arbitrage is of institutional character when the parties agree that the rules of procedure be applied of a national centre of arbitrage, which capacity of intervention aims more towards the evaluation of a proposed Act of a new General Act of Arbitrage that, as it was mentioned before, is in process in the National Congress of Colombia, and to which we will refer later on.
c. The arbitrage is of independent character when the parties agree on the rules of procedure. Following closely what is contemplated in the regulations of the International Chamber of Commerce, the European Convention on International Arbitrage, the New York Convention and the Model Act of the United National Commission for the Unification of International Commerce, Uncitral, of 1985, the parties enjoy great autonomy in aspects such as:
• The form of integration and appointment of arbiters
• The form and content of the arbitral suit, its allegation and counter-claim.
• The system of notifications
• The pppppossibility of the arbitration award not being motivated
• The authorisation awarded to the arbiters to decide only based in documentary proofs or according with what is generally known today as "fast track arbitration"
• The free acceptability and...
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