Colombian constitutional law provides an action for the defense of fundamental constitutional rights, known as a “tutela action.” The tutela action has been accepted against domestic awards on the same grounds of a tutela action against judicial decisions, related mainly with violations of due process, such as procedural errors of sufficient gravity, errors of sufficient gravity on the examination of evidence or evidently erroneous factual findings.
However, there is still discussion regarding the possibility of presenting a tutela action against an award issued by an international arbitration tribunal seated in Colombia. A few tutelas against awards rendered in international arbitrations seated in Colombia have been permitted to commence, although none of these have ever been overruled since no violation of fundamental rights has ever been found. Under Law 1563, the only remedy against an international arbitration award is a motion to set it aside. This should be interpreted in the sense that the tutela action cannot be presented against the decision of an international arbitration tribunal. Nonetheless, the specific issue has not been addressed by the Colombian courts.
A very recent clarification of a decision to deny a tutela action against an international arbitration award represents a major step on the topic. In this clarification, the judge pointed out that a tutela action cannot be presented against an international arbitration award. He stated that UNCITRAL recommended limiting and clearly defining court involvement in international commercial arbitration. This limitation of the local judge involvement in international arbitration is recognized by the legislature, since Law 1563, in accordance with the UNCITRAL Model Law, establishes that the only remedy against an arbitral award is a motion to set it aside. Permitting a tutela action against an international arbitration award would breach this, because it may even allow local judges to review substantive errors.
The clarification also states that a tutela action may only proceed against acts or omissions of a public authority which violate fundamental rights. Accepting a tutela action against an international arbitration award would be recognizing that international arbitrators are public authorities under Colombian law, implying that their actions may lead to the responsibility of the state, despite the fact that the seat of arbitration may be another country and the arbitrators may be nationals from another state. Deriving state responsibility for actions and omissions performed in another country or by national from another state would be unacceptable, which leads to the conclusion that a tutela action cannot be presented against awards issued by international arbitration tribunals seated in Colombia.
This case note originally appeared in the Baker McKenzie International Arbitration Yearbook. The Yearbook comprises reports on arbitration in key jurisdictions around the globe. You can access the Yearbook here. The country chapter “Colombia” can be found here.