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COLOMBIA 15
Consejo de Estado, 17 April 2020
(Isolux Ingeniería S.A. v. Bioenergy Zona Franca S.A.S.)
COLOMBIA 15
The Administrative Chamber of the Council of State granted recognition of an ICC award, finding that the applicant had complied with the requirements established by Colombian law for seeking recognition, which were less strict than the requirements set by the 1958 New York Convention and were applicable in accordance with the Convention’s more-favorable-law principle, and that the respondent had not met its burden to prove its two alleged grounds
for refusal, namely that it was under some incapacity when it entered into the arbitration agreement and that the agreement was invalid because the contract in which it was contained was invalid. The Court noted that this latter argument would fail in any event, because of the principle of the separability of the arbitration clause from the underlying contract.
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.
The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Public policy: The court discusses alleged violations of a fundamental rule of due process in the arbitration on the recognition and enforcement of an arbitral award, including the failure to communicate the names of the arbitrators, the failure to send copies of reports or letters filed in the arbitration, etc.
Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.
More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.