Commercial Law
Our practice in this area includes:
- Legal structuring of business and commercial projects
- Execution of the different commercial operations
- Preparation of due diligence reports
- Mergers and acquisitions
- Incorporation and liquidation of companies, expansion and reduction of capital, reorganization and business integration in mergers, transformations, spin-offs, dissolutions and universal insolvency proceedings.
- Opening of branches of national and foreign companies, legal representation of commercial companies.
- Advice on foreign investment, decision making or definition of strategies.
Cannabis Law:
- Advice on sector trends and developments.
- Preparation of seed and plant growing, derivative manufacturing and export license applications.
- Representation of clients before national authorities (Ministry of Interior and Justice, Ministry of Health and Social Protection, CNE, etc.)
The Supreme Court of Justice unifies the requirements for electronic invoicing as a value title:
Decision STC11618 of the Civil Cassation Chamber of the Supreme Court of Justice (SCJ), issued on October 27, 2023, established unified criteria on the requirements necessary to consider an electronic invoice of sale (EIS) as a value title. These requirements are divided into two categories:
Formal requirements:
- The EIS must be generated in electronic format (XML) and include a description of the goods or services invoiced, as well as the name “electronic invoice” and the Unique Electronic Invoice Code (CUFE).
- The CUFE must be validated by the National Tax and Customs Directorate (Dian) and delivered to the purchaser. This requirement does not apply to physical invoices, or to situations where validation is not possible due to technological problems attributable to Dian.
It is important to note that, according to the Supreme Court of Justice, registration of the EIS in RADIAN is necessary for its circulation, but not for it to be considered a title.
Substantive requirements:
- The EIS must mention the right it represents, including the author’s signature and the expiration date.
- Acknowledgement of receipt of the EIS is required.
- Acknowledgement of receipt of goods or services is required.
- Express or tacit acceptance of invoice must be made within three days of receipt of goods.
With regard to acceptance, the Supreme Court of Justice has chosen to follow the position of Decree 1154 of 2020 and not to apply Law 1231 of 2008. The Decree erroneously stipulates that express acceptance must take place within three days of receipt of the goods or services, whereas Law 1231 of 2008 states that the period begins on receipt of the invoice. This SCJ decision is contested for several reasons:
- The hierarchy of norms establishes that the law prevails over the regulatory decree, despite its specific nature: the decree does not have the power to override the law, which remains in force and applies in full to both electronic and physical sales invoices. Where the rule makes no distinction, it is not for the interpreter to create one.
- The Supreme Court of Justice underlines the speed of e-commerce, which often leads to invoices being issued before goods or services are delivered. However, this is contrary to Article 1 of Law 1231 of 2008, which stipulates that all invoices must correspond to goods or services that have actually been delivered or provided. This applies to both electronic and physical sales invoices.
- Finally, acceptance of the invoice, whether express or tacit, serves as proof of delivery of the goods or service, as indicated by the SCJ in STC9542-2020. Acceptance implies that the purchaser of the goods or service has validated that the contents correspond to reality.
This recent position of the Supreme Court of Justice regarding acceptance is not only contrary to the law, but could also lead to practical difficulties when it comes to proving “receipt of the goods” by the party executing the action. Despite the existence of a certain flexibility in terms of evidence to support this fact, it is undeniable that some judicial operators tend to apply very strict criteria with regard to these requirements.
Two decades of the electronic commerce law in Colombia
Since 1999, Colombia adopted the United Nations (UNCITRAL) model to regulate Electronic Commerce. In 1999, the strength of digitality in society, in the economy and in the transformation of the State was barely discernible. For the law, achieving an interaction with technology was not an easy task either. We were close to the explosion of the dotcom bubble but there was still a time of optimism and expectation about the impact of the Internet on the world. In 2019, the commercial activities by electronic means have been developed and increased in volume of transactions but there is still an important growth potential.
The agenda of many international organizations such as WIPO, UNCTAD, OECD, WTO, among others, had as its horizon the new information technologies. The United Nations Commission for International Trade Law, UNCITRAL, led work at the international level, within the United Nations, on matters that were known as relevant: electronic commerce, contracts by digital means, the validity and effectiveness of the information packaged into data messages and the methods of authentication and integrity in that new environment.
Both the Electronic Commerce Model Law of 1996 and the Model Law of Electronic Signatures of 2001 materialize a normative corpus that was offered to the world under the model of uniform law with an international vocation. With Law 527 some aspects of B2B relations were regulated and then with Law 1480 of 2011, Consumer Statute, the duties, obligations and rights of consumers and e-commerce providers in B2C transactions were determined
Today, Colombia commemorates twenty years of having accepted this model in its legal system and it is time to make a preliminary assessment of its relevance, its application and its expansion in the daily life of legal operators and of course businessmen and merchants of the digital world.
There are no perfect norms nor ideal regulatory models but it is true that the UNCITRAL Electronic Commerce model has been adopted by many countries and has not required notable adjustments in its essence thanks to the virtues of planning, serious study and vision of the future.
PRINCIPLES AND RULES SET FORTH IN THE LAW 527
Achieving a normative consensus on an international scale requires an adequate balance between the general and the detail. It is not possible to harmonize a legal topic without understanding that the current world requires a convergence between normative systems with diverse legal traditions.
Law 527 of 1999 groups together a series of principles and rules of the UNCITRAL e-commerce legal model that did not exist in the private law of Colombia and that appear as bridges or communicating vessels between the analogue and the digital landscape. This relationship between the immaterial and the physical synthesizes the interdependence between technological change and normative advancement.
The legal functions equivalence principle allows to have validity, effectiveness and authenticity between documents, contracts and in general between information by electronic and digital means. This principle stands out as the backbone of the legal construction that allows carrying out activities with legal connotation by means other than traditional means.
Not only in Law 527 but throughout the Colombian legal system has that equivalence been extended. Beyond private relations, the points of intersection have reached the public procurement law, the notarial and registry of property functions, the judicial procedures and digital public services and e-government. Sometimes expressly and repeatedly in a standard or with a reference consistent with Law 527 of 1999. That wording of the Model Law and Law 527 aimed at not denying legal effects or binding force to a data message by the mere fact of being in that format has been recognized by the Courts and is part of Colombian case law in multiple cases.
The Colombian Constitutional Court itself confirmed that legal principles included e-commerce law applies to any legal relations carried out through data messages. The rules of Law 527 of 1999 have shown coherence with the principle of technological neutrality as they have evolved in application of technological advances in instant messaging or in Blockchain schemes without having to modify their philosophy or interpretative application. The predominance of a technology brand in the market, of one operating system or another or of an ephemeral or lasting technological paradigm has not affected the principles and rules of Law 527 of 1999.
Like all legal instruments issued by UNCITRAL (for instance the New York Convention for Arbitral Sentences), the e-commerce model is entrusted that its interpretation has a markedly international character, nurturing the doctrine and national jurisprudence of a plurality of sources that enrich the debate and its uniform application on a global scale.
NEW CATEGORIES AND LEGAL INNOVATION INTRODUCED BY LAW 527
Currently reference is made to legal innovation and legaltech schemas and the example of the UNCITRAL Model Laws that guaranteed a disruptive regulatory transformation of legal systems on a global scale must not be lost sight of.
Law 527 of 1999 incorporated into our legal system new concepts: data messages, the electronic contract, the principles of electronic commerce, electronic and digital signatures as well as digital certification entities. All these new categories aimed at recognizing the transformation in the signature and contractual content, the validity and legal effectiveness of digital information, the new interpretation of dematerialized legal relationships as well as providing methods of authenticity and integrity to transactions and exchanges by electronic media.
With the regulation model of Electronic Commerce, the law began an era of experimentation and transformation to recognize the growing importance of cyberspace and the digital environment. The Internet revolution constituted at the end of the previous century one of the unprecedented challenges and in which the traditional legal solutions of ancient rights did not necessarily serve as valid or complete references.
The new models of doing business by electronic means find in Law 527 of 1999 the backdrop and the legal basis that allows its operation but above all that valid and gives legal effectiveness to the growing dematerialized activity. Electronic contracting finds support in its formation and execution. The offer and commercial acceptance by electronic means with validity generating relevant legal relationships. Connected objects are linked by data messages. Smart contract algorithms develop electronic contracting with automated execution. Virtual assistants interact with other information systems or with the human beings they support through data messages.
THE FUTURE AND THE PROSPECTIVE OF LAW 527 OF 1999
Law 527 has a connotation of structural and basic norm that has the vocation to endure. Both the rules and principles and the legal categories created by this Law allow us to predict their permanence, however there are several challenges in the future:
- A. Its adaptation to technological changes, in the market and in society that introduce emerging and disruptive technologies
- B. Its greatest diffusion and application in countries that are just taking steps in the digital transformation of companies and the public sector.
- C. The deepening of electronic commerce as a complete transaction from the digital commercial offer to the payment and the electronic invoice that oblige to complement the Law with other subjects proper to that complete cycle of commercial activity.
D. The consolidation of the cross-border electronic commerce in its legal interpretation that recognizes the validity, existence and legal security as in the local landscape.
The National Tax and Customs Office -DIAN regulates the use of the electronic signatures
The National Tax and Customs Office- DIAN issued Resolution 0070 dated November 3, 2016 whereby all individuals holding digital signatures must migrate to the new Instrument of Electronic Signature, henceforth -IFE- (Instrumento de Firma Electrónica) that will work with the identification of the user and the use of two special passwords.
For those users who need to obtain their respective IFE for the first time, it will be necessary to go to the DIAN facilities in person. For “one time” the current holders of the digital signature mechanisms, backed by digital certificate, will be allowed to migrate virtually to the new IFE as follows:
Deadline: This migration must be carried out between 8 November 2016 and 30 June 2017. The schedule set forth in Article 9 of the Resolution is as follows:
- If the individual must sign tax returns and / or reports for one or more business entities classified as “Large Taxpayers”, in that case, and according to the last digit of the NIT of the entity, the migration took place between 8 November and 2 December, 2016.
- If the individual must sign tax returns and / or reports for one or several business entities that are not large taxpayers, in that case, and according to the last digit of the NIT of the entity, the migration will take place between 13 December 2016 and 31 March 2017.
- If the individual is only responsible for his/her own tax returns or tax reports, in that case, and according to the last digit of their NIT, the migration must take place in June 2017.