PM Legal News | Flash – October 2025
Sustainable Transformation of the Colombian Financial System: New Regulations on Comprehensive Environmental, Social, and Climate Risk Management
External Circular 015 of 2025, issued on October 3 by the Colombian Financial Superintendency, marks a milestone in the evolution of the national financial system towards sustainability. This mandatory regulation for supervised entities (with specific exceptions) establishes a robust legal framework for integrating environmental, social, and climate risks (ESCR) into financial management systems.
What changes with this Circular?
- New Chapter XXXIII in the Basic Accounting and Financial Circular (CBCF).
- Amendments to sections 3.1.4 and 3.2 of Chapter IV of the Basic Legal Circular (CBJ).
- Obligation to incorporate ESCR risks into internal policies, credit operations, investments, and insurance.
- Training plans, periodic reports, and technical documentation on risk categorization and monitoring.
Types of Risks Identified
- Physical risks: Extreme weather events (hurricanes, droughts, floods).
- Transition risks: Regulatory, technological, and economic changes toward a low-carbon economy.
Voluntary Reference Indicators (Annex 1)
Although not mandatory, these indicators allow vulnerabilities to be measured and strategic decisions to be guided:
- IERF: Physical Risk Exposure Index
- IRTE: Energy Transition Risk Index
- IERS: Social Risk Exposure Index
- PFCI / IFCC: Participation in International Climate Finance Programs and Blended Climate Finance
Implementation Deadlines
- Action plan: Within the first 6 months.
- Full implementation: Maximum 18 months.
- Early application: Permitted and publicly recognized by the Superintendency.
Why is this regulation key?
Ignoring these guidelines may expose entities to reputational, financial, and operational risks. On the other hand, compliance:
- Strengthens institutional trust.
- Protects vulnerable communities.
- Positions Colombia as a regional leader in sustainable finance.
Is your institution prepared?
Now is the time to review policies, train teams, and design strategies aligned with the new regulations. If you need specialized legal advice to implement this regulation, our team is ready to assist you.
October newsletter
The Ministry of Labor issues Circular 075 of 2025 to prevent, identify, and address situations of workplace harassment, sexual harassment, and discrimination against transgender people, non-binary people, and people with non-hegemonic gender identities.
The Ministry of Labor urges institutions and companies to take urgent and appropriate measures to prevent, address, raise awareness, and guide workers on workplace harassment, sexual harassment, and the prevention of violence and discrimination against people who identify with non-hegemonic sexual orientations and gender identities, following these instructions:
- Use the name and pronoun with which people identify, without requiring prior modification of their identity document, on ID cards, internal and external communications, correspondence, contracts, resolutions, minutes, employment certificates, and all types of official documents in general. Failure to do so constitutes discriminatory behavior based on gender identity and may be considered workplace harassment.
- Trans women cannot be required to present a military card in order to be hired or remain in their job. In the case of trans men, the requirement to present a military card cannot be an obstacle to entering employment.
- Transgender people have the right to wear the uniform and clothing they consider appropriate for the gender identity with which they identify.
- In cases where bathrooms are separated for men and women, transgender people have the right to use the bathroom that corresponds to the gender with which they identify.
- It is considered discriminatory to make trans people, non-binary people, and people of non-hegemonic gender invisible or to hide them, through behaviors such as not including them in wellness activities, relegating them to confined spaces, not inviting them to work meetings, or removing them from the duties for which they were hired without valid justification.
- It is reiterated that, under Law 1010 of 2006, making jokes or wisecracks about the gender identity of transgender, non-binary, and non-hegemonic gender individuals is considered workplace harassment.
- Establish inclusive and non-discriminatory selection processes, seeking to overcome gender stereotypes and prejudices about this population. To this end, it is recommended to: train the personnel involved in the process; evaluating processes to identify possible gender biases; reviewing job offers to ensure that job descriptions are not discriminatory, using inclusive language; and publishing vacancies in the Public Employment Service through the Provider Network.
Actions that companies must take for implementation:
- Train the members of the Workplace Coexistence Committees.
- Include a differential approach that recognizes transgender, non-binary, and non-hegemonic gender individuals in the policies, protocols, and care pathways established against sexual harassment.
- Incorporate awareness programs on gender diversity.
- Implement mechanisms for reporting acts of discrimination, allowing for effective care for victims in complaint procedures and action by the Workplace Coexistence Committee.
Law 2540 of 2025 introduces arbitration for enforcement proceedings, with the aim of helping to relieve congestion in the judicial system.
Object: With the enactment of this law, executive proceedings may now be submitted to arbitration, provided that there is an arbitration agreement. The same law expressly provides that the executive arbitration process shall be institutional and shall apply to any type of enforcement, and in no case may ad hoc arbitration be used. The arbitration award shall be rendered in accordance with the law. Consequently, any agreement referring to an award in equity or technical award shall be deemed not to have been written.
Similarly, the enforcement of domestic arbitral awards may be submitted to the same arbitral tribunal, except for those rendered in international arbitrations based in Colombia, while the enforcement of arbitral awards against public entities or individuals exercising administrative functions may not be brought before the same arbitrators who rendered them.
Characteristics of the arbitration agreement: It is a legal transaction whereby the parties undertake to submit to arbitration the enforcement of enforceable titles and disputes arising from the underlying transaction of the title affected by the agreement. This may consist of a commitment or an arbitration clause and may not form part of a security that is invoked as an enforceable title, in which case it must necessarily be recorded in a commitment set out in a document attached to or separate from it.
Procedure: Arbitration centers may incorporate into their regulations the rules of procedure for executive arbitration and for the implementation of preliminary precautionary measures, respecting the minimum guarantees of due process.
An extraordinary appeal for annulment may be filed against the executive arbitration award.
Term: If the arbitration agreement does not establish the duration of the proceedings, they shall last up to twelve (12) months, counted from the issuance of the order setting the dispute, the decree of evidence, and the approval of the settlement of the claim.
Fees: The Ministry of Justice and Law shall regulate the fees of the executing arbitrators, those of preliminary precautionary measures, the arbitrators executing the awards, and the administrative expenses corresponding to the center.
Consumer protection measures: This law not only regulates the executive arbitration process, but also introduces the following measures to protect consumer rights:
- In contracts entered into with consumers that stipulate an arbitration agreement or in relation to which arbitration is agreed upon, the consumer must be provided with clear, truthful, sufficient, timely, verifiable, understandable, accurate, and appropriate information on the effects and scope of the arbitration agreement and the executive arbitration process.
- In the event of non-compliance with this obligation by the entity, the consumer shall not be bound by the arbitration agreement, unless he or she decides to resort to arbitration or, having been summoned to an arbitral tribunal, does not invoke the ineffectiveness of the agreement. In addition, financial institutions are liable to sanctions by Financial Superintendency in the event of non-compliance.
- Likewise, the consumer’s acceptance of the arbitration agreement must be specified in the credit application independently and may not be a requirement or condition for the granting or disbursement of the credit, nor may it subject decisions on credit conditions to acceptance or non-acceptance of the arbitration agreement.
- Consequently, the mere acceptance of the terms and conditions in consumer relations shall not be considered an arbitration agreement. This must be express, clear, and reflect the free and informed will of the consumer.
- In the context of the arbitration process, the inalienable nature of consumer rights must be observed, which means that no clause of the arbitration agreement or provision of this procedure may be interpreted to the detriment of those rights.
Right of withdrawal from the arbitration agreement: In contracts entered into with consumers of financial services through adhesion contracts or general conditions that include an arbitration agreement, the consumer’s right of withdrawal from said agreement shall be understood to be incorporated, which must be exercised within 60 days following the disbursement of the credit or the moment when the obligations in favor of the consumer began to be fulfilled, unless this right is expressly included in the arbitration agreement, in which case there shall be no time limit for its exercise and it may be exercised until the expiration of the term for raising objections on the merits in the respective arbitration proceedings.
General Prohibitions:
- The procedures regulated in this law, as they involve enforcement with precautionary measures, shall be confidential.
- Entities supervised by the Financial Superintendency, electronic payment associations and networks, and legal or natural persons whose main activity is to grant money loans may not participate in any capacity in the creation, development, or operation of for-profit or non-profit legal entities that create arbitration centers to administer the executive arbitration process.
Social enforcement arbitration. Arbitration centers shall promote social enforcement arbitration and facilitate access to the free provision of this type of arbitration service for small claims, without prejudice to each center’s ability to provide the service for larger amounts.
Validity. This law shall come into force six (6) months after its enactment, i.e., on February 26, 2026.
Legal challenges and strategic pathways for biodiversity protection in Colombia: towards a green economic transition
By Daniel Peña Valenzuela, Partner Peña Mancero Abogados
I. Introduction
Colombia’s constitutional framework establishes the protection of biodiversity as a fundamental duty of the State and a right of all citizens (derecho fundamental y colectivo). As one of the most megadiverse countries globally, Colombia faces a complex legal and policy challenge: how to reconcile its ecological wealth with the imperatives of economic growth, international trade, and rural development. The expansion of the agricultural frontier, the emergence of bioeconomic markets, and the rise of ecotourism as a conservation-financing tool demand a coherent legal response.
This article examines the regulatory, institutional, and fiscal mechanisms necessary to transform biodiversity from a vulnerable asset into a strategic pillar of Colombia’s green economic transition.
II. Agricultural Frontier and Legal Instruments for Sustainable Land Use
The recent update of Colombia’s agricultural frontier reveals a total of 42.9 million hectares, a figure that underscores both the scale of productive potential and the urgency of legal intervention. Within this frontier lie vast areas of degraded or underutilized soils that, if reconverted under appropriate legal frameworks, could support agroforestry systems, silvopastoral models, and perennial crops such as cacao, rubber, certified palm oil, and long-cycle timber. These transitions are not merely agronomic innovations; they are legal transformations that require zoning regulations, environmental licensing, and land-use planning instruments aligned with Law 99 of 1993 and the mandates of the National Environmental System (SINA).
The legal rationale for promoting such transitions is grounded in their capacity to reduce deforestation, increase per-hectare productivity, and enable access to international markets that demand verifiable sustainability. The European Union Deforestation Regulation (EUDR), which will apply to Colombian large companies in 2025 and to Colombian small and medium enterprises in 2026, imposes strict due diligence obligations on importers of commodities such as palm oil, soy, cocoa, and timber. Colombian producers must therefore adopt legally recognized certification schemes and traceability protocols to remain competitive and compliant.
III. Certification Systems: Legal Relevance, Operational Complexity, and Market Integration
Certification systems are increasingly understood not as voluntary standards but as legal instruments of market access and environmental compliance. Colombia must institutionalize and scale multiple certification schemes, each with distinct legal, technical, and operational requirements. The Roundtable on Sustainable Palm Oil (RSPO), for example, requires producers to demonstrate transparency, environmental responsibility, and respect for community rights. This entails legal verification of land tenure, adherence to free, prior and informed consent (FPIC) protocols, and alignment with national forestry and environmental laws. In regions such as Meta and Chocó, where palm expansion intersects with ethnic territories and post-conflict zones, RSPO certification must be accompanied by robust legal safeguards to prevent land dispossession and ecological degradation.
Similarly, Bonsucro certification for sugarcane production emphasizes productivity, labor rights, and environmental impact. In Colombia, its implementation must navigate the complexities of labor law compliance, water usage permits, and pesticide regulation under the oversight of the Colombian Agricultural Institute (ICA) and the National Institute for Food and Drug Surveillance (INVIMA). The Round Table on Responsible Soy (RTRS), which demands non-GMO production, zero deforestation, and social responsibility, poses additional legal challenges, particularly in harmonizing its standards with Colombia’s regulatory framework on genetically modified organisms and environmental impact assessments.
VI. Traceability and Data Governance: Building a Legal Backbone for Sustainability
Traceability is the legal linchpin of certification. Without robust systems to georeference plots, monitor production, and verify compliance, certifications lose credibility and legal enforceability. Colombia must legislate a national traceability system that includes mandatory geospatial mapping of production plots, linked to cadastral and environmental registries. This system must ensure interoperability between public datasets—such as those managed by IGAC, ICA, and ANLA—and private sector data, while respecting the principles of data protection enshrined in Law 1581 of 2012.
Verification protocols must be standardized and legally recognized, including third-party audits, remote sensing technologies, and blockchain-based systems. These mechanisms should be regulated by the Superintendencia de Industria y Comercio to ensure transparency, accountability, and consumer trust. Crucially, the legal framework must include incentives and technical assistance for small and medium producers, who risk exclusion from formal markets due to the high costs and complexity of compliance. This includes subsidized certification schemes, simplified reporting procedures, and legal protections against discriminatory market practices.
V. Bioeconomy: Legal Instruments for Innovation, Equity, and Market Access
Colombia’s biological wealth offers a unique opportunity to develop a bioeconomy centered on natural ingredients, bio-inputs, biomaterials, and bioactive compounds for health and cosmetics. To unlock this potential, the State must enact and enforce legal instruments that promote intellectual property protection, access and benefit-sharing (ABS), and public-private partnerships. The legal framework must ensure that patents and plant variety rights for bioactive compounds are protected under Andean Decision 486 and national intellectual property law, while guaranteeing that communities benefit from the commercialization of genetic resources in accordance, among others, with the Nagoya Protocol
Public-private partnerships must be legally structured to facilitate co-investment in research and development, technology transfer, and incubation of bioeconomic ventures. This requires the articulation of sectoral plans, CONPES documents (public policy documents), and fiscal incentives for innovation. Regulatory streamlining is also essential: procedures for registering bio-inputs and natural products with INVIMA and ICA must be simplified to reduce barriers to market entry.
VI. Ecotourism and Conservation: Regulatory Design and Enforcement
Ecotourism, when legally structured, can serve as a financial mechanism for biodiversity conservation and inclusive development. Legal components must include enforceable limits on visitor capacity per destination, binding environmental management plans, and standards for infrastructure design, waste management, and water usage.
Local value chains must be legally incentivized through tax benefits, training programs, and preferential access to protected areas. Monitoring and enforcement mechanisms must be established to prevent predatory tourism practices that degrade ecosystems and reputational value. Protected areas, indigenous territories, and private reserves must be governed by clear legal norms that balance access with conservation. Nature tourism, if legally structured, can become a self-financing mechanism for ecosystem protection and a generator of dignified employment.
VII. Financing Mechanisms: Towards a Legally Mandated Green Fund
Financing biodiversity requires sober legal design. Colombia can reserve a fraction of increased revenues from legal mining and planned energy transition taxes for a national green fund. This fund should be legally mandated to support payments for environmental services (PES), certification and traceability subsidies, watershed restoration, and territorial control against illegality. Certification and traceability costs must be co-financed through legal instruments that promote equity and inclusion. Investments in ecological infrastructure must be regulated under Law 99 of 1993 and the National Water Policy, while territorial control must be supported by legal frameworks for environmental prosecutors, forest rangers, and community monitors.
VIII. Conclusion: Legislating the Green Transition
To consolidate Colombia’s transition toward a biodiversity-based economy, the country must adopt a structured legal roadmap that articulates regulatory reform, institutional strengthening, and fiscal innovation. This roadmap should be grounded in constitutional mandates, international obligations, and domestic development priorities, and must be implemented through coordinated legislative, executive, and territorial actions.
Colombia must enact a national law on sustainable land-use transition, establishing legal criteria for the reconversion of degraded soils into agroforestry, silvopastoral, and perennial crop systems. This law should define eligibility conditions, environmental safeguards, and incentives for producers who adopt zero-deforestation practices. It must also incorporate mechanisms for legal recognition of certification schemes and their integration into environmental licensing and trade protocols.
The country must legislate the creation of a national certification and traceability infrastructure. This includes the legal recognition of international standards such as RSPO, Bonsucro and RTRS, and the establishment of a public registry of certified producers. A complementary law should mandate the creation of a national traceability system, with provisions for geospatial mapping, data interoperability, and third-party verification, ensuring compliance with the European Union Deforestation Regulation and other emerging trade requirements.
Colombia must adopt a legal framework for the promotion of the bioeconomy. This includes laws on intellectual property protection for bioactive compounds, access and benefit-sharing mechanisms aligned with the Nagoya Protocol, and fiscal incentives for research, development, and technology transfer. The framework should also include simplified regulatory pathways for the registration and commercialization of bio-inputs and natural products, particularly for small and medium enterprises.
The country must reform its tourism and conservation laws to enable ecotourism as a legally structured conservation-financing mechanism. This entails updating environmental and tourism legislation to include enforceable limits on visitor capacity, mandatory environmental management plans, and standards for infrastructure and service provision. Legal instruments must also promote community-based tourism enterprises and ensure equitable access to protected areas.
Colombia must legislate the creation of a national green fund, financed through a legally earmarked fraction of revenues from legal mining and energy transition taxes. This fund should be governed by a dedicated law that defines its objectives, governance structure, and eligible expenditures, including payments for environmental services, certification and traceability subsidies, watershed restoration, and territorial control against environmental crime.
The roadmap must include cross-cutting provisions for institutional coordination, capacity building, and public participation. This includes the establishment of intersectoral committees, legal mandates for transparency and accountability, and mechanisms for consultation with indigenous, Afro-descendant, and rural communities.
In sum, Colombia’s biodiversity must be protected not only through policy declarations but through enforceable legal instruments that align ecological integrity with economic opportunity. The transition to a green economy requires a juridically robust framework that transforms biodiversity into a source of productivity, equity, and resilience. The time to legislate that future is now.
COLOMBIA: recent case law regarding commercial agency vs distribution contracts
Gabriela MANCERO-BUCHELI | COLOMBIA
In one of the most recent cases regarding commercial agency agreements in Colombia, the Superior Court of Bogotá clarified that economic risk does not, in itself, exclude the existence of a commercial agency. However, it is a determining factor when accompanied by operational independence, freedom to set prices, and absence of instructions from the contractor.
This article will discuss decision No. 11001 3103 045 2021 00461 01 by the Superior Court of Bogotá issued on May 12, 20251.1
Background of the case
MTBASE S.A.S. filed a lawsuit against SAP Colombia S.A.S., claiming that there was a commercial agency agreement between the two companies with an uninterrupted, continuous, and indefinite term from June 2, 1993, to December 31, 2019.
The plaintiff argued that the essential elements of an agency agreement were present, asserting that it had been entrusted with the promotion and market positioning of the product, in addition to carrying out technical functions associated with the commercialization of software licenses.
First Instance Judgment
The 45th Civil Court of the Bogotá Circuit ruled in favor of the plaintiff, finding that the primary purpose of the contracts was the distribution of software for resale, which could include support and complementary services offered directly by the plaintiff. The Court also noted that no contractual clause imposed agency duties on the plaintiff to act on behalf of the defendant for the purpose of positioning or growing the business in the software market, nor was there evidence that the plaintiff engaged in market development activities for the defendant’s benefit.
Appeal
The plaintiff appealed the first-instance judgment, arguing that, since the commercial agency agreement involved artistic works or creations (software), the legal transaction should have been registered with the National Copyright Office—evidence that the plaintiff never operated as a legal entity separate from the defendant. Furthermore, the technical support provided by the plaintiff to customers was delivered following training by the defendant, suggesting that “there was no distinction between the plaintiff and the defendant from the perspective of customers and the market”.
Superior Court of Bogota’s Analysis
The Superior Court of Bogotá analyzed the evidence and found that, contrary to what the appellant suggests, the case file shows that the contractual behavior of the parties, which lasted for 26 years, is consistent with the nature and content of a distribution contract.
The Court concluded that it was established that the plaintiff assumed the risks inherent in purchasing for resale, thereby undermining both the promotion of another’s business and the receipt of remuneration—elements intrinsic to a commercial agency contract. This was evidenced by sales invoices showing that customers acquired the software licenses directly from the plaintiff. Accordingly, the defendant did not pay commissions to the appellant; rather, its remuneration derived from the difference between the purchase price of the software licenses and the higher resale price charged to the consumers.
The decision stated:
““It is not without reason that case law has emphasized that, ‘although the essential elements of agency have been identified as the permanence or stability of the assignment, the independence of the agent, and the intermediary functions aimed at acquiring, retaining, expanding, or recovering customers for the principal, much of the doctrine agrees that it is the promotion of the conclusion of business—where the principal assumes the economic risk—that constitutes the typical content distinguishing the agency contract from other contractual arrangements, as the other elements may also be present in different types of agreements (…).’ Acting in the name and on behalf of a third party has been highlighted by this Chamber’s case law as the most decisive characteristic in determining whether the contract binding on the parties constitutes a commercial agency agreement. (CSJ, judgment of September 30, 2015, file 2004 00027)”.
The Court also emphasized that there is no written document or supporting evidence to substantiate the plaintiff’s claims. On the contrary, there is ample documentary evidence—including purchase invoices—supporting the first-instance judge’s conclusion that the plaintiff primarily acted by purchasing products from SAP COLOMBIA S.A.S. for resale to third parties.
Furthermore, as previously noted, the evidence shows that MTBASE S.A.S. remained silent for over two decades, thereby implicitly accepting the performance of services characteristic of a software license distribution agreement, rather than those of a commercial agency. This conduct runs contrary to fundamental legal principles, including the prohibition against acting in contradiction to one’s own prior conduct (venire contra factum proprium).
Conclusion
The Court concluded that no commercial agency agreement existed between the parties, as the plaintiff acted as an independent distributor, received no remuneration from the defendant since Its profit was derived not from a commission, but from the margin between the purchase and resale prices, and bore all business risks. Moreover, the plaintiff purchased licenses directly from the defendant and resold them under its own name, without any mandate of representation or direction from the defendant.
The decision clearly emphasized that economic risk is not incidental but an essential element, as its continuous presence precludes the existence of an agency relationship.
Gabriela Mancero-Bucheli, IDI Country Expert for agency and distribution in Colombia
Andrea Sánchez Gallardo
- The plaintiff filed an appeal in cassation against this decision, and the case is currently pending a ruling by the Supreme Court of Justice. ↩︎
Digital Expression and Judicial Sovereignty: Colombian Constitutional Standards in the Esperanza Gómez Case
By Daniel Peña Valenzuela, Partner at Peña Mancero Abogados
1. Introduction: A Constitutional Milestone in the Digital Age
On September 12, 2025, the Colombian Constitutional Court issued a landmark ruling that redefined the boundaries of digital governance and reaffirmed the enforceability of constitutional rights in cyberspace. The case, brought by actress and digital influencer Esperanza Gómez, challenged the arbitrary closure of her Instagram account by Meta Platforms Inc. In reinstating her digital presence, the Court not only protected her individual rights but also established a constitutional framework for platform accountability, judicial oversight, and the defense of freedom of expression in stigmatized industries.
2. Background: Global Norms vs. National Guarantees
Gómez’s tutela action exposed the growing tension between global content moderation policies and national constitutional protections. Her legal team argued that Meta’s decision violated her rights to freedom of expression, equality, due process, and work. The Court agreed, concluding that the account closure was discriminatory and procedurally deficient.
This ruling builds on a series of precedents that have shaped the Court’s doctrine on digital rights. In Judgment T-155 of 2019, the Court addressed the balance between freedom of expression and the right to honor in social media contexts, emphasizing that digital speech enjoys constitutional protection and must be restricted only under strict proportionality. In T-124 of 2021, the Court examined religious expression by public officials on digital platforms, reaffirming the principle of state secularism and the need to ensure neutrality in online discourse. More recently, T-061 of 2024 tackled the issue of transphobic content moderation, holding that platforms must avoid discriminatory enforcement and ensure that vulnerable communities are not disproportionately silenced.
Together, these rulings reflect an evolving doctrine: digital platforms, while privately owned, function as quasi-public forums and must respect constitutional norms.
3. Doctrinal Contributions: Defining the Limits of Platform Power
Justice Natalia Ángel Cabo’s majority opinion introduced several foundational principles that now guide the constitutional regulation of digital spaces:
First, the Court affirmed that platforms may exercise content moderation, but this power must be exercised within constitutional boundaries. The mere invocation of “community standards” does not justify the suppression of constitutionally protected speech, especially when enforcement is arbitrary or discriminatory.
Second, the Court reaffirmed the jurisdiction of Colombian judges over digital rights violations, even when committed by foreign corporations. This principle of judicial sovereignty ensures that constitutional protections are not rendered ineffective by the transnational nature of digital platforms.
Third, the Court declared that discriminatory enforcement of moderation policies—particularly against stigmatized professions such as adult entertainment—is unconstitutional. The decision emphasized that freedom of expression must be protected regardless of the speaker’s identity or occupation.
Finally, the Court extended the principle of due process to digital environments. Users must be afforded clear procedures for notification, appeal, and judicial review when their accounts or content are restricted.
4. Structural Orders: Institutional Accountability and Reform
Beyond individual redress, the Court issued structural orders aimed at reforming Meta’s operations in Colombia. These include:
- Translating all platform policies and guidelines into Spanish to ensure accessibility and transparency.
- Establishing a judicial channel for receiving and complying with court orders.
- Revising moderation policies to eliminate discriminatory language and practices.
- Creating transparent appeal mechanisms subject to judicial oversight.
- Publishing the ruling in Meta’s Transparency Center to ensure public awareness.
- Requesting an advisory opinion from Meta’s Oversight Board to evaluate the broader implications of the case.
These measures reflect a shift toward proactive judicial engagement with digital governance, positioning constitutional courts as key actors in regulating platform behavior and defending fundamental rights.
5. Broader Implications: Constitutional Law in a Transnational Digital Ecosystem
The Gómez ruling raises critical questions for legal systems worldwide. How can national courts prevent global community standards from becoming tools of censorship? What safeguards are needed to protect users in stigmatized industries from arbitrary moderation? How should constitutional law evolve to address the transnational nature of digital platforms?
The Court’s response is clear: by asserting judicial sovereignty, demanding transparency, and defending substantive equality, constitutional courts can shape a more just and accountable digital ecosystem. The decision challenges the notion that digital platforms operate in a legal vacuum and affirms that constitutional protections extend into the digital realm.
6. Conclusion: Toward a Jurisprudence of Digital Rights
The Constitutional Court’s decision in favor of Esperanza Gómez marks a turning point in Latin American digital rights jurisprudence. It affirms that constitutional protections do not end at the edge of the internet and that platform governance must be subject to public law principles. As digital spaces continue to evolve, this ruling provides a foundational model for defending rights, regulating moderation, and ensuring that online expression remains free, fair, and constitutionally protected.
Comparative Regulatory Framework 2025: Fintech Data Protection (SIC) vs. Open Finance (MinHacienda) in Colombia
Guidelines on Financial Data in the Colombian Fintech Ecosystem (2025)
By Daniel Peña Valenzuela, Partner at Peña Mancero Abogados
Introduction
In the context of the digital transformation of the Colombian financial system, the regulation of personal data processing acquires strategic relevance. On May 6, 2025, the Superintendence of Industry and Commerce (SIC) published a draft external circular aimed at establishing specific guidelines for the handling of personal data by actors in the fintech ecosystem. Although this initiative is presented as a measure to strengthen the protection of data subjects’ rights, its content has sparked significant debate regarding its compatibility with the open finance model promoted by the Ministry of Finance.
Open finance, as an emerging paradigm, seeks to promote interoperability, technological innovation, and financial inclusion through the standardized and secure exchange of data between financial entities and authorized third parties. Within this framework, the Ministry of Finance’s draft decree proposes a regulatory architecture based on digital consent, process automation, and multisectoral governance led by the Financial Superintendence of Colombia (SFC).
The coexistence of these two regulatory frameworks raises normative tensions that could hinder the harmonious development of the digital financial ecosystem. The following comparative table analyzes the main divergences between both projects, aiming to highlight points of friction and propose a critical reflection on the need for coherent, modern regulation aligned with the principles of open finance.
| SIC Draft Circular | Ministry of Finance Draft Decree (Open Finance) |
| Requires human review when decisions significantly affect the data subject, limiting the use of algorithms and AI. | Promotes the use of algorithms and artificial intelligence to expand access to financial services. |
| Requires prior, explicit, and written authorizations, especially for sensitive data or automated processing. | Establishes digital consent managed through APIs and interactive dashboards, with auditable electronic records. |
| Reinforces a restrictive interpretation of the minimization principle, limiting access to data not strictly necessary. | Allows the data subject to voluntarily share their full financial history for personalized services and benchmarking. |
| Based on the traditional controller/processor model without considering a multisectoral structure. | Establishes a governance scheme led by the Financial Superintendence of Colombia (SFC) with technical committees, integration standards, and reciprocity rules. |
| Assumes a paternalistic approach, viewing the consumer as passive and vulnerable. | Views the consumer as an active agent, owner of their data, with the ability to decide with whom to share their information. |
| Aims to protect the rights of personal data holders in the fintech ecosystem. | Aims to increase competition, efficiency, and financial inclusion through standardized data exchange. |
| Does not establish a generalized obligation for ecosystem actors. | Requires entities supervised by the SFC to participate as data providers in the open finance system. |
| Does not contemplate a multisectoral coordination body. | Creates a public-private coordination body with decision-making authority (SFC), a technical secretariat, and working groups. |
The pros and cons of Decision 9 of the Free Trade Commission on Investment
CAUSE FOR DISOLUTION OF COMPANIES DUE TO NON-COMPLIANCE WITH THE HYPOTHESIS OF CONTINUING BUSINESS
