CODE OF CIVIL PROCEDURE IN COLOMBIA

This article will provide guidance on the Code of Civil Procedure in Colombia. Colombia is a Civil Law nation; hence its legal system is based more on codified laws and statutes than judicial precedent. Judgments in civil law jurisdictions are solely binding on the parties to the case rather than the whole community since jurisprudence is not considered part of the legal bodies of these states. Legal rulings are implemented on a case-by-case basis and used as a guide by other courts.

Supreme Court rulings used to be more restricted in reach, but this is no longer true in Colombia and other civil law nations. A court's interpretation of the law may be as significant as the law itself, particularly in high-profile cases involving contentious issues.

BACKGROUND

The central government has the authority to settle all major political issues. The country's only legislative body crafts Colombia's laws. The country's districts and municipalities are subdivided from the larger geographical divisions known as departments (similar to states in the United States). None of these bodies can legislate or adjudicate on their own accord. However, due to administrative decentralization, there are also departmental, district, and municipal representatives within Colombia's executive branch. The delegates at these three tiers are given some restricted authority separate from the supreme body.

The three pillars of the government each have their distinct functions. The Constitution's Article 113 defines these branches as the executive, legislative, and judiciary. The President is the head of the executive branch. The leader oversees subordinates at the governorate, city, and ministry levels. For instance, the governor and the president are responsible for the mayor. All governors must answer to the president. (Article 115 of the Constitution of the Republic of Colombia, 1991).

The Legislative Branch is responsible for making new laws, changing the Constitution, and exercising political authority over the Executive Branch. Legislation is the responsibility of Congress, which consists of the Senate and the House of Representatives—article 114 of Colombia's political constitution (1991).

The judicial system disperses justice. Colombia's judicial system has three main types of courts: regular courts, administrative courts, and constitutional courts.

The Supreme Court of Justice is the highest court of ordinary jurisdiction, with authority to examine congressional officials and consider claims against the president. Colombia's constitution from 1991 provides that the court is responsible for deciding on constitutional challenges and conducting constitutionality analyses of legislation. This authority rests with the State Council, the highest governing body in Colombia. It gives policy recommendations to the federal government.

LEGAL PROCEEDINGS IN COLOMBIA

A large business dispute may be filed in civil or administrative courts, depending on who is involved. For instance, the Administrative Courts have jurisdiction when both parties involve a state agency.

Consumer protection, antitrust, and intellectual property issues are all within the scope of jurisdiction of the Superintendence of Industry and Commerce. The Superintendence has power over the use and investment of public investor funds and, more broadly, over issues affecting the financial and insurance operations of the companies it regulates. It is the responsibility of the Superintendence of Corporations to arbitrate any conflicts that arise inside a corporation.

Only attorneys allowed to practice in Colombia have the right to an audience. Court proceedings, mainly hearings, are generally public. The Constitutional Court stated that under Article 74 of the Colombian Constitution, judicial proceedings are confidential until they are concluded. The information in the proceedings is classified when fundamental or constitutional rights are endangered.

PRE-ACTION CONDUCT IN COLOMBIA

Suppose a claimant does not meet specific pre-action conditions. In that case, the court must rule that the claim is inadmissible and give the claimant five days to produce proof of the extrajudicial conciliation after litigation has begun. If not, the claim will be dismissed (Article 90, GCP). Except for two circumstances, litigation must first be initiated via extrajudicial conciliation before proceeding to the court level.

A claimant must follow all the formal procedures for the statement of claim before the claim may be initiated. The claim form must be submitted to the allocation office of the Civil or Administrative Court (depending on whether the claim falls under ordinary or administrative jurisdiction). Legal proceedings may use digital communication, digital signatures, electronic case files, and electronic service of documents, all of which are encouraged by the current national legislation. However, starting a case electronically is not an option.

There are often two phases to a court case, being [A.] a written stage, containing the filing of the claim, counterclaims, and their reply, and [B.] the trial hearing, when evidence is gathered, closing arguments are delivered, and a judgment is made; the initial hearing, which deals with the organization of the proceedings and provides a ruling on any preliminary defenses. At the written stage, normally, the defendant must be physically served.

PROCESS SERVICE IN COLOMBIA

A copy of the statement of claim and the admission of the claim must be sent to the defendant's official electronic mailbox. The defendant has twenty-five days to get full copies of the file from the court. Following the expiry of this twenty-five-day timeframe, the defendant's answer to the complaint must be submitted within twenty days. This time restriction cannot be extended.

The claimant must notify the defendant in writing of the decision to begin proceedings, the substance of those actions, and the date on which notice of that decision will be personally served. If the defendant's address is within the court's circuit, service may be made by having them appear before the court within five days of receiving the notice.

These deadlines apply if the defendant does not reside in the same circuit as the plaintiff. By the time the case reaches the oral argument phase, the defendant has had enough time to file a statement of defense within the strict deadline established by law.

CONDUCT OF HEARINGS IN COLOMBIA

The first hearing is conducted when the defendant has filed a response to the claim. At this time, the judge hears any preliminary objections and encourages the parties to resolve the issue. In the absence of an agreement, the case will go to trial. The relevant facts of the case are established by the court, which also issues discovery orders and maintains judicial oversight over the proceedings' legitimacy.

During the trial hearing, the judge will collect all of the evidence. When everything has been settled, each side will have specifically allotted time to submit their final arguments verbally. After hearing the parties' closing arguments, the judge renders a ruling unless there is good cause for a delay. The court's decision in certain situations must be explained to the ACSCJ. The judge must notify the ACSCJ of their planned ruling and provide a written judgment within ten days.

ENFORCEMENT OF DECISIONS IN COURTS

To ensure that a party complies with a court's ruling, the court must initiate a collection or enforcement process. When a collection process follows a declaratory proceeding, the judgment must be enforced in the same court that issued the judgment. All agreements between Colombian nationals are governed by Colombian law. In the event of a national conflict, all agreements made by Colombian residents must be in accordance with Colombian law.

It is only possible for parties to an international contract to agree upon a law other than Colombian law as the applicable law. If there is a disagreement over the agreement, the court will need to consult an expert on the law that will apply to reach a decision. No mandatory legislation prevents the parties from selecting the law that would apply to a contract with an international element. However, the courts are likely to adopt a narrow view in practice, restricting the situations when a choice of law is permissible:

In the event that one of the parties is based in Colombia. Still, if the disputed contract calls for performance overseas, that party will have the burden of establishing the contract's validity under Colombian law, regardless of where the contract was signed.

Contractual choice of law in Colombia is governed by Colombian law, and Colombia has not ratified any international instruments that might change this. For conflicts involving assets physically situated in Colombia when the issue occurs, for example, rulings made in a foreign court are not enforceable in Colombia.

Judges in Colombia often follow the law most relevant to the contract or the law of the place where the obligations were performed if the parties have not agreed on a controlling law. Claims involving Colombian parties or events occurring inside Colombian territory must be governed exclusively by Colombian law.

Colombia is a party to the OAS Inter-American Convention on Letters Rogatory of 1975 and the HCCH Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters of 1965. Juridical channels, diplomatic or consular agents, or the central authority of the state of origin or the state of destination are used to deliver letters rogatory from the interested party to the authority to whom they are addressed. The Chancellery, Colombia's designated central authority, is responsible for fielding and processing requests from foreign parties to contracts.

A copy of the complaint and any other supporting evidence must be included with the letter rogatory for service to be made. Written information that identifies the court or other adjudicatory authority issuing the letter must be included, specifies the deadline by which the addressee must respond, and forewarns the consequences of failing to do so. The letter's rogatory, and supporting materials must be translated into Spanish to be considered valid.

The receiving country's laws must be followed while carrying out a letter rogatory To effect the legal process in Colombia, a court order is required. The Chancellery may, however, execute the letters via a special method or accept an extra formality, provided that neither is contradictory to Colombian legislation if requested by the authorities of the state of origin. The authorized authority in each contracting state serves the document or makes arrangements for the document to be served by the competent agency in accordance with that state's national legislation for the serving of documents. The Chancellery is the official institution in Colombia responsible for processing requests for assistance from foreign parties.

To have a foreign decision recognized and enforced in Colombia, the exequatur process outlined in Article 607 of the GCP must be initiated. The request must be submitted to the Supreme Court of Justice's Civil Cassation Chamber. The opposite party has five days from when the court notifies that a claim has been filed before it must file its answer. Within that time frame, the court will decide on any requests for evidence, schedule a hearing at which both sides will present their evidence and closing arguments, and render a ruling.

OUR PROCESS

Documents can be faxed at (800)-296-0115, emailed to ps@undisputedlegal.com, mailed to 590 Madison Avenue, 21 Floor, New York, New York 10022, or dropped off at any of our locations. We do require pre-payment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.

Drop-offs must call and make an appointment first to be added to building security to permit access to our office. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC. Our receptionist receives all documents.

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OFFICE LOCATIONS

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New Jersey: (201) 630-0114 - 101 Hudson Street, 21 Floor, Jersey City, New Jersey 07302
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FOR ASSISTANCE SERVING LEGAL PAPERS IN COLUMBIA

Pick up the phone and call Toll Free (800) 774-6922, or click the service you want to purchase. Our dedicated team of professionals is ready to assist you. We can handle all your Colombia process service needs; no job is too small or too large!

Contact us for more information about our process-serving agency. We are ready to provide service of process to all our clients globally from our offices in New York, Brooklyn, Queens, Long Island, Westchester, New Jersey, Connecticut, and Washington, D.C.

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Sources

1. Article 1 of Colombia's 1991 national constitution reads: "Colombia is a social state of law, structured in the form of a unitary, decentralized republic, with the autonomy of its territorial units, democratic, participative, and pluralist."

2. A special division of the Supreme Court deals with civil cases called the Court of Cassation.

District Courts with Civil Jurisdiction.
Judges of the civil circuit.
Judges in Municipal Courts who deal with Civil Cases.

3. Article 73, General Code of Procedure and Article 25, Decree 196/1971

4. Constitutional Court, Decisions C-491/2007 and T-1025/2007

5. Article 35 of Law 640/2001 states that every action brought before a civil or administrative court must first be submitted to extrajudicial conciliation.

6. If the location of the defendant's home or place of employment cannot be ascertained. If the plaintiff asks for temporary relief at the commencement of the case.

7. As outlined in Article 82 of the GCP

8. If the dispute involves a public entity, the Public Ministry, a private company entrusted with public operations, or a private party registered in the trade registration, then the process outlined in Article 612 of the GCP applies.

If non-state actors are involved in the dispute, the process outlined in Article 291 of the GCP shall apply.

9. The period is reduced to 15 days for a defendant with Colombian residency. Defendant's foreign residence is a 30-day bar.

10. The required steps are outlined in Article 422 and subsequent sections of the GCP.

11. According to Article 2 of the Colombian Civil Code, its whole governs all civil cases involving Colombian nationals.

12. Because of the potential impact on Colombian public policy, Article 16 forbids the use of legislation other than Colombian law as the basis for the interpretation of the agreement.

13. Article 869, Commercial Code.

14. According to Article 2341 and Article 1613 of the Civil Code, Colombian law will be used in cases unrelated to a contract.

15. Columbia ratified the Hague Service Convention in 2006, making it part of domestic legislation as Law 1073.

16. If the foreign arbitral award is not in Spanish, the party seeking enforcement must also submit an official translation. Article 112 of Law 1563/2012 provides a basis for refusing to recognize an international arbitral award. Similar grounds for refusal can be found in Article V of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (New York Convention), modeled after this provision.