Colombia’s Constitutional Court declares that constitutional injunctions (tutela) proceed against awards in international arbitration

I. Introduction

On 6 August 2019, the Fifth Revision Chamber of Colombia’s Constitutional Court (the “Court”) issued judgment T-354/19 resolving a constitutional injunction (tutela) submitted by a state-owned company and its subsidiary against an international arbitral award (the “Tutela”). [1] In its decision, the Court recognized the admissibility of constitutional injunctions against awards issued in international arbitrations seated in Colombia. However, it concluded that the Tutela was not admissible in the specific case because the annulment proceedings had not been exhausted.[2]

II. Background

On December 22, 2010, Gecelca S.A E.S.P (“Gecelca”) and its subsidiary Gecelca 3 S.A.S E.S.P (“Gecelca 3”), and the Consortium CUC-DTC, constituted by China United Engineering Corporation and Dongfang Turbine Co. LTD. (the “Consortium”), executed an EPC contract to build a thermoelectric plant in Córdoba, Colombia (the “Contract”). During the development of the Contract certain disputes arose between the parties regarding, inter alia, the term for performance of the Contract, Gecelca 3’s alleged delay in the payment of invoices, and the alleged breach of the Contract by the Consortium.

On December 29, 2014, the Consortium submitted a request for arbitration under the arbitration clause of the Contract. The tribunal, seated in Bogota, was constituted on March 11, 2015 from the list of “international arbitrators” of Bogota’s Center of Arbitration.[3] The Parties disputed whether the arbitration was to be conducted as a national or an international arbitration.

On May 8, 2015, the Tribunal issued a partial award deciding that the arbitration was international because two of the four criteria provided for in Article 62 of Law 1563 of 2012 (Statute of National and International Arbitration) were met in the specific case,[4] i.e. that the parties were domiciled in different States at the time of execution of the arbitral clause and that the dispute affected international trade interests (the “Partial Award”).

On December 4, 2017, the Tribunal issued a final award declaring that Gecelca 3 had breached the Contract and ordering the payment of USD $40.827.427,7 to the Consortium (the “Final Award”).

On January 11, 2018, Gecelca 3 filed an action to set aside the Final Award before the Third Section of the Council of State (the “Third Section”), because, inter alia, it was inconsistent with Colombia’s international public order.

On February 28, 2018, Gecelca and Gecelca 3 (the “Gecelca companies”) presented a constitutional injunction (tutela) against the Final Award alleging that the Tribunal had violated their fundamental rights to due process and access to justice. Additionally, the Gecelca companies requested interim measures to suspend the payment ordered in the Final Award.

The Tutela was declared inadmissible in first and second instance. On July 26, 2018, the Fourth Section of the Council of State – the first instance competent judge –declared that the Tutela was inadmissible considering that this mechanism could not be used to re-open a legal debate addressed during the arbitral proceedings.  On September 12, 2018, the Fifth Section of the Council of State –the second instance competent judge– confirmed the first instance judgment and clarified that, since constitutional injunctions are subsidiary mechanisms, the Tutela was inadmissible because the decision to set aside the Final Award was still pending.

On October 29, 2018, the Constitutional Court selected the Tutela for revision.

III. The Constitutional Court’s decision

The first question facing the Court was whether the Tutela was admissible. To address this matter, the Court divided its analysis in three main issues: (i) the exceptional nature of constitutional injunctions against arbitral awards; (ii) the application of said exceptional nature to awards issued in international arbitrations; and (iii) whether the Tutela complied with the applicable requirements to be admitted.

  • The exceptional nature of tutelas against arbitral awards

Recalling previous jurisprudence on this matter,[5] the Court concluded that arbitral awards are materially equivalent to judicial decisions considering that both are issued in the exercise of jurisdictional functions and have res judicata effects. For this reason, the admissibility of constitutional injunctions against arbitral awards must be analyzed under the same requirements applicable to judicial decisions.[6] However, said requisites must be more rigorously applied to  arbitral awards than to judicial decisions, considering that arbitral awards derive from the express will of individuals deciding to depart from the jurisdiction of the courts.[7]

Accordingly, the admissibility of constitutional injunctions against arbitral awards must be determined on the basis of the following criteria:[8] (i) constitutional relevancy: the arbitral award must have violated fundamental rights directly; (ii) subsidiarity: applicable remedies must have been previously exhausted (according to Article 40 of Law 1563 of 2012,[9] the only applicable remedy to arbitral awards is annulment); and (iii) compliance with “specific admissibility requirements”, which refer to the existence of substantive, organic, procedural, or factual defects of the award or the tribunal’s constitution, also known as the doctrine of “vías de hecho”.[10]

  • The very exceptional nature of tutelas against arbitral awards in international arbitration

The Court concluded that the same criteria applicable to analyze the admissibility of arbitral awards issued in national arbitrations, must be applied to awards issued in international arbitrations. Additionally, it stressed that three additional issues must be taken into consideration in regard to international arbitral awards. First, the express prohibition of judicial intervention in international arbitrations provided for in Article 67 of Law 1563 of 2012.[11] Second, the applicable law to the arbitration. And third, the grounds for annulment in international arbitration.

As to the prohibition of judicial intervention in international arbitrations incorporated in Article 67 of Law 1563 of 2012,[12] the Court concluded that said proscription does not supersede the primacy of the Constitution and the right of any individual to access the tutela as a mechanism for constitutional protection. Therefore, such prohibition cannot be applied to proscribe –in the abstract and in general– the admissibility of tutelas against arbitral awards in international arbitration.

As to the applicable law, the Court concluded that when the substantive law applicable to the arbitration is foreign, constitutional judges shall only apply Colombia’s international public order as parameter of constitutional control. In consequence, “specific admissibility requirements” are only applicable when the award is “partially governed by Colombian law”, not when the substantive law applicable to the arbitration is foreign.

As to the grounds for annulment of international arbitral awards, the Court concluded that the admissibility of tutelas against international awards is even more exceptional than in the case of national awards, considering that the only competent authority to determine if the international arbitral award is contrary to Colombia’s international public order –which cannot be invoked as a ground to set aside an award issued in a national arbitration– is the one resolving the request to set aside the international arbitral award. Therefore, for a constitutional injunction to be admissible against an award issued in an international arbitration, annulment proceedings must be previously exhausted.

Based on the above, the Court concluded that tutelas against arbitral awards are admissible only in exceptional circumstances (“procedencia excepcional”) and tutelas against awards in international arbitrations seated in Colombia are admissible in very exceptional circumstances (“procedencia excepcionalísima”).

  • Admissibility of the Tutela presented by the Gecelca companies

The Court concluded that the Tutela filed against the Final Award was not admissible considering that the Gecelca companies had not previously exhausted the proceedings to set aside the award, which are still pending before the Third Section of the Council of State. C

IV. Comments

The Court’s decision leaves several questions unresolved.

First, despite the fact that Colombia is a contracting party to the New York Convention of 1958 (the “Convention”), the Court did not address the interplay between Colombia’s international obligations under the Convention (Article V(1)(e) of the Convention) and the domestic legal regime.

Second, the Court’s analysis regarding the relation between “the law governing the award” and the admissibility of constitutional injunctions is unclear. The Court states that in those cases where the “the law governing the award” is foreign, there is no room to analyze the admissibility of a tutela in light of criteria different than Colombia’s international public order. Conversely, in those cases where “the law governing the award” is, at least partially Colombian, the constitutional judge may apply “specific admissibility requirements”, referring to the doctrine of “vías de hecho”, a catalogue of substantive, organic, procedural, and factual defects in which the award or the tribunal may incur. For instance, an award would incur in a “substantive defect” when the interpretation or application of a rule in a specific case, ignores constitutional judgments with erga omnes effects that have defined its scope.

While it is far from clear what the Court means by with “the law governing the award”, it seems to be referring to the substantive applicable law. If this is so, then a constitutional judge –when analyzing the admissibility of a tutela in an international arbitration where Colombian law is applicable to the merits– may review the merits of the case to determine if the arbitral tribunal incurred in vías de hecho.

Third, the Court states that national awards are “materially equivalent” to judicial decisions because arbitrators are temporarily invested with the function of administering justice according to Article 116 of the Constitution.[13] The Court seems to conclude that the same equivalency applies to awards issued in international arbitrations but does not explain how it arrives to such conclusion.

The Court does not explain whether, and if so, why an international arbitrator shall be deemed as a “judge” while acting as arbitrator in a particular case. To add another ingredient to the confusion, one of the Justices of the Court clarified its vote to the effect that, in his view, international arbitrators are not judges. Does it mean that the court considers that the arbitrators of the Tribunal were acting as judges?  If so, then may a non-Colombian be considered a Colombian judge exercising jurisdiction in Colombia? May non-Colombian arbitrators seated in an arbitration in Colombia trigger the international responsibility of the Colombian State?

V. Conclusion

This is a decision of one of the Chambers of the Court, not a decision of the plenary of the Court nor a decision to unify jurisprudence, and therefore it only applies to the specific case and may be revisited. 

In its review of the case, the Court invited scholars and institutions to provide comments on several questions related to the Tutela, the key one being whether constitutional injunctions should be admitted against awards issued in international arbitrations seated in Colombia. The majority of the opinions were in the negative based on the same point of departure: arbitrators in international arbitrations seated in Colombia are not judges, public officials, or private parties exercising public functions. The Court, however, seems to have departed from this premise and based its analysis on the thesis that international arbitrators comply with public functions.

*Eduardo Zuleta, Partner, Zuleta Abogados Asociados S.A.S; international arbitrator; lecturer at Georgetown University.

*Maria Camila Rincón, Associate, Zuleta Abogados; former adviser, Colombia’s National Agency for the Legal Defense of the State; former adviser, Colombia’s Directorate of Foreign Investment and Services of the Ministry of Trade, Industry and Tourism; lecturer at Universidad del Rosario.


[1] The tutela is a constitutional injunction that aims to protect fundamental constitutional rights when they are violated or threatened by the action or omission of any public authority. This mechanism is incorporated in Article 86 of the Constitution. Tutelas proceed when: (i) fundamental constitutional rights are violated or threatened; (ii) when there are no other means to protect the right; and (iii) when by action or omission of a private individual in the event that said individual provides a public service, or exercises public functions; and (iv) when the actor is in a situation of defenselessness or subordination with respect to the individual against whom the tutela is brought.

[2] Colombian Constitutional Court, Judgment T-354 of 2019. Avaible at: http://www.corteconstitucional.gov.co/relatoria/2019/t-354-19.htm

[3] Bogota’s Chamber of Commerce, Arbitration and Conciliation Center. Available at: http://www.centroarbitrajeconciliacion.com

[4] Law 1563 of 2012, Article 62: “It is understood that an arbitration is international if: (a) The parties to an arbitration agreement have, at the time of the execution of said agreement, their domiciles in different States; or (b) The place of performance of a substantial part of the obligations or the place with which the object of the dispute has a closer relationship is located outside the State in which the parties have their domiciles; or (c) The controversy submitted to arbitration decision affects the interests of international trade.” Available at: http://www.secretariasenado.gov.co/senado/basedoc/ley_1563_2012_pr001.html#62

[5] Constitutional Court, Judgment SU-033 of 2018. Available at: http://www.corteconstitucional.gov.co/relatoria/2018/SU033-18.htm

[6] Constitutional Court, Judgment C-590 of 2005, Considerations of the Court, para. 25

[7] Constitutional Court, Judgment SU-500 of 2015.

[8] Constitutional Court, Judgment SU-174 of 2007. Available at:  http://www.corteconstitucional.gov.co/relatoria/2007/SU174-07.htm

[9] Article 40, Law 1563 of 2012 (free translation): “Against the arbitral award only proceeds the extraordinary request to set aside the award, which must be duly substantiated, before the arbitral tribunal, indicating the grounds invoked, within thirty (30) days following its notification or that of the ruling that resolves the clarification, correction or addition of the award. The secretariat of the tribunal will refer the matter to the other party within fifteen (15) days without the need of a specific ruling ordering it. Upon expiration of that term, within the next five (5) days, the secretary of the tribunal shall send the briefs presented by the parties together with the file to the judicial authority competent of resolving the annulment request.” Available at: http://www.secretariasenado.gov.co/senado/basedoc/ley_1563_2012.html#40

[10] Judgment T-466 of 2011, Consideration of the Court, para. 3.4 (free translation):

I. Substantive defect: It occurs when (i) the arbitrators base their decision on a rule that is clearly inapplicable to the specific case, and because of that, they do not directly recognize a fundamental right; (ii) the award lacks material motivation or its motivation is manifestly unreasonable; (iii) the interpretation or application made of the rule in the specific case, ignores judgments with erga omnes effects that have defined its scope; (iv) the interpretation of the rule is made without taking into account other provisions applicable to the case and which are necessary to make a systematic interpretation; and (v) the rule applicable to the specific case was neglected and therefore was left unapplied.

II. Organic defect: Occurs when the arbitrators have absolutely no competence to resolve the matter submitted to their consideration, either because they have manifestly acted outside the scope defined by the parties or because they have ruled on non-arbitrable matters.

 III. Procedural defect: It occurs when the arbitrators have issued the award in a manner completely contrary to the procedure established contractually or in the law, and thus have incurred in a direct violation of the right of defense and contradiction. For the aforementioned irregularity to be of sufficient magnitude to constitute a vía de hecho, it is necessary for it to have a direct impact in decision, so that if the tribunal would not have incurred in such irregularity, the decision reached by the tribunal would have been diametrically opposite.

IV. Factual defect: It occurs when the arbitrators (i) have not assessed evidence crucial for the case’s resolution; (ii) have made their assessment of the evidence directly violating fundamental rights, or (iii) have based their assessment of the evidence on a manifestly unreasonable legal interpretation. For the Court, it is necessary that the error in the assessment of the evidence has been decisive with respect to the decision. Available at: http://www.corteconstitucional.gov.co/RELATORIA/2011/T-466-11.htm

[11] Article 67, Law 1563 of 2012: “In matters governed by this section, no judicial authority may intervene, except in cases and for the purposes in which this section expressly so provides.” Available at: http://www.secretariasenado.gov.co/senado/basedoc/ley_1563_2012_pr001.html#67

[12] Article 67, Law 1563 of 2012: “In matters governed by this section, no judicial authority may intervene, except in cases and for the purposes in which this section expressly so provides.” Available at: http://www.secretariasenado.gov.co/senado/basedoc/ley_1563_2012_pr001.html#67

[13] Article 116 of Colombia’s Political Constitution (free translation): “private individuals may be temporarily invested in the function of administering justice in the condition of jurors in criminal, conciliators or arbitrators cases authorized by the parties to issue judgments in law or in equity, under the terms determined by law.” Available at: http://www.secretariasenado.gov.co/senado/basedoc/constitucion_politica_1991_pr003.html#116

The Center for Transnational Litigation and Commercial Law aims at the advancement of the study and practice of international business transactions and the way to solve related disputes either through litigation or arbitration. As commercial transactions become increasingly international, it is vital to the legal and business communities to understand and analyze the practices and legal principles that govern relationships between firms and between firms and consumers in the international arena