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- Legal structuring of business and commercial projects
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- 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.
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International Arbitral Awards and Their Enforcement: Lessons from Colombia’s Article 28 of Law 2540 (2025) in Comparative Perspective
By Daniel Peña Valenzuela, Partner Peña Mancero Abogado
Introduction
The enforcement of arbitral awards remains one of the most critical dimensions of arbitration, as it determines whether the adjudicatory process achieves practical effectiveness. While the New York Convention (1958) established a global framework for the recognition and enforcement of foreign arbitral awards, national legislations continue to innovate in regulating the execution of domestic and international awards. Colombia’s Law 2540 of 2025, which will enter into force on February 27, 2026, introduces significant reforms in this regard. Article 28 of the statute allows domestic arbitral awards to be executed before the same arbitral tribunal that rendered them, provided the request is made within ten business days of notification. This reform contrasts with the previous regime under Law 1563 of 2012, which required parties to seek enforcement before ordinary courts.
This paper examines the Colombian innovation, situates it within the broader international landscape, and compares it with practices in jurisdictions such as France, the United States, and Singapore. The analysis highlights both the potential efficiencies and the limitations of Colombia’s approach, particularly in relation to international arbitral awards and matters involving public entities.
The Colombian Reform: Article 28 of Law 2540 (2025)
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Scope of Application: Domestic arbitral awards, conciliations, and settlements approved by arbitral tribunals may be executed before the same tribunal, subject to a strict ten-day deadline.
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Procedural Mechanism:
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In tribunals of three arbitrators, the president acts as executor, or another arbitrator in alphabetical order if the president declines.
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In sole-arbitrator tribunals, the arbitrator may act as executor upon acceptance.
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If no arbitrator accepts, the arbitration center designates an executor from its roster.
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Limitations:
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Execution is only possible if the arbitration agreement expressly provides for an arbitral enforcement procedure.
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If the deadline lapses, a new arbitral tribunal must be convened to enforce the award.
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Awards involving public entities or administrative functions are excluded from execution before the same tribunal.
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This framework reflects a hybrid model: it strengthens arbitral autonomy while preserving judicial oversight in cases where deadlines expire or public interests are implicated.
Comparative Perspectives
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France: French law requires arbitral awards to be declared enforceable by the juge de l’exequatur. The arbitral tribunal itself does not execute its award; judicial intervention is mandatory, ensuring uniformity and public control.
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United States: Under the Federal Arbitration Act (FAA), arbitral awards must be confirmed by federal or state courts to become enforceable judgments. The arbitral tribunal has no role in execution, reflecting a strong reliance on judicial authority.
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Singapore: The Singapore International Arbitration Act allows for swift enforcement of awards through the High Court, which issues enforcement orders. Efficiency is achieved through streamlined judicial procedures rather than arbitral self-execution.
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Colombia’s Distinction: Unlike these jurisdictions, Colombia’s reform empowers arbitral tribunals to enforce their own awards, albeit within narrow procedural confines. This innovation seeks to reduce reliance on ordinary courts, but its strict deadlines and exclusions may limit practical effectiveness.
Conclusions
Colombia’s Article 28 of Law 2540 (2025) represents a bold experiment in arbitral self-enforcement. By allowing tribunals to execute their own awards, the reform enhances efficiency and reinforces party autonomy. However, its effectiveness depends on careful drafting of arbitration agreements and strict compliance with procedural deadlines.
Comparatively, most jurisdictions—France, the United States, Singapore—retain judicial involvement as a safeguard, prioritizing uniformity and public oversight over arbitral autonomy. Colombia’s model thus stands out as an innovative but cautious departure, balancing efficiency with limitations.
For international arbitration, the exclusion of awards involving public entities and the continued reliance on judicial enforcement for foreign awards align Colombia with global standards. Yet, the Colombian experiment may inspire debate on whether arbitral tribunals should play a more active role in enforcement, particularly in domestic contexts where efficiency gains are most needed.
Colombia: recent case law regarding commercial agency vs distribution contracts
by: Gabriela Mancero-Bucheli
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
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. ↩︎
The pros and cons of Decision 9 of the Free Trade Commission on Investment
Newsletter february 2025
Superior Tribunal of Medellín – Civil Chamber – Judgment on Interruption of the Statute of Limitations for Contractual Liability Actions
By means of a judgment dated July 16, 2024, the Civil Chamber of the Superior Tribunal of Medellín ruled that the statute of limitations for an action derived from a transportation contract is two (2) years and may be suspended by the filing of a request for extrajudicial conciliation, thereby extending the period until its conclusion.
The plaintiff sought to hold the defendants contractually, extra-contractually, and jointly liable for the damages suffered as a passenger in a traffic accident involving the vehicle. In response, the defendants raised the defense of extinctive prescription, arguing that the lawsuit was filed more than two (2) years after the transportation obligation should have concluded (August 17, 2016).
Article 993 of the Commercial Code provides that “Direct or indirect actions arising from a transportation contract are subject to a statute of limitations of two years. The limitation period shall begin to run from the day on which the transportation obligation has concluded or should have concluded. This term cannot be modified by the parties.”
The plaintiff contended that the filing of the request for a conciliation hearing, considering the suspension period agreed upon by the parties, effectively interrupted the statute of limitations set forth in Article 993 of the Commercial Code.
The judge concluded that, although Article 993 of the Commercial Code establishes a two (2) year limitation period, which would have run from August 17, 2016, to August 17, 2018, the plaintiff’s request for a conciliation hearing on August 17, 2018, in conjunction with Article 21 of Law 640 of 2001, led to the suspension of the statute of limitations on the last day available to initiate the action. Consequently, an additional three (3) months, corresponding to the conciliation hearing period, must be added.
Furthermore, the judge explained that the suspension of the limitation period includes any extensions to the conciliation hearing agreed upon by both parties, as (i) they were mutually agreed upon, and (ii) the request was filed before the expiration of the initial three-month period within which the hearing should have taken place, extending until November 17, 2018. Therefore, the judge did not uphold the defense of extinctive prescription.
Decree 34 of 2025 – Amendment to Decree 2555 of 2010 Regarding Crowdfunding Activities
In line with productive transformation strategies, it is essential to strengthen access to financing, particularly to facilitate the growth of micro, small, and medium-sized enterprises (MSMEs), promote the adoption of advanced technologies, diversify financing alternatives for working capital, strengthen the integration of production chains, and develop workforce capabilities.
Among alternative financing mechanisms, crowdfunding platforms stand out for their ability to finance productive projects. Accordingly, it was deemed appropriate to modify their regulatory framework to expand access to financing across various economic sectors.
Key modifications include:
- The inclusion of individuals with productive projects as eligible crowdfunding recipients.
- Authorization for entities engaged in crowdfunding to develop new services that facilitate compliance with formal requirements by potential recipients.
- Strengthening information mechanisms for contributors.
- Allowing collective investment vehicles to participate in crowdfunding activities.
Key provisions of the Decree include:
- Individuals may receive crowdfunding for their productive projects through a newly created specific modality: “Crowdfunding through debt-representative securities issued by individuals.”
- As an investor protection measure, a maximum amount of 14,245.27 Basic Value Units (UVB), equivalent to COP 164,561,359.04, is set for this modality. Additionally, recipients who obtain financing under this modality may only have one funded project at a time.
- Crowdfunding entities may offer new services, including: (i) Collection and advertising services; (ii) Administration of transaction record-keeping systems for crowdfunding securities; (iii) Technical support services to potential recipients in structuring productive projects, among others.
- Crowdfunding entities must adopt a classification procedure for productive projects based on an objective analysis of the information provided by the recipients. Objective variables such as income, assets, and credit history must be available on a publicly accessible section of the crowdfunding entity’s website.
- Autonomous trusts, collective investment funds, and private equity funds may participate as contributors and recipients in crowdfunding projects.
Resolution No. 000004 of 2025 – DIAN – Prescription of Form 115 for Income Tax and Supplementary Returns for Taxpayers with Significant Economic Presence (PES) in Colombia
Pursuant to Article 20-3 of the Tax Statute, non-resident individuals or entities without a domicile in Colombia but with significant economic presence (PES) in the country are subject to income tax and supplementary obligations on income derived from the sale of goods and/or the provision of services to customers and/or users located in Colombian territory.
Those meeting the criteria set forth in this article must choose between: (i) Filing and paying income tax and supplementary obligations through the prescribed form, or(ii) Paying the tax through withholding at the source under the income tax and supplementary obligations regime for significant economic presence (PES) in Colombia.
Accordingly, this resolution prescribes the form for taxpayers opting to file an income tax return. These taxpayers must register in the Single Tax Registry (RUT) under responsibility code 65. The return must be filed through electronic services using an Electronic Signature (FE) authorized by the Special Administrative Unit of the National Tax and Customs Directorate (DIAN).
Superior Tribunal of Bogotá – Civil Decision Chamber – Judgment on Financial Habeas Data
The plaintiff sought a declaration of the existence of a basic public switched telephone service (TPBC) contract entered into with the defendant, which was in force from March 14, 2007, until April 27, 2009. The plaintiff alleged that the defendant company abused its dominant position by imposing charges exceeding the agreed fixed rate and reporting her as a delinquent debtor to credit bureaus Datacrédito and Cifin from April 2008 to May 8, 2009. Consequently, the plaintiff sought damages for both pecuniary and non-pecuniary harm.
The judge first determined that, although the plaintiff invoked the regime of extra-contractual liability, based on the facts of the case, the rules of contractual liability were applicable. The Supreme Court of Justice, Civil Cassation Chamber (SC-3653-2019), has clarified that liability in financial habeas data cases arises from the collection, processing, and dissemination of debtor information within the contractual relationship—in this case, a telecommunications service contract. Specifically, the claim was based on the improper use of the debtor’s authorization granted to the company, requiring truthful, accurate, and diligent reporting to credit bureaus. The erroneous reports were attributable to the defendant’s billing mistakes, rather than the plaintiff’s non-compliance with obligations.
In accordance with ruling SC10297 of 2014 from the Supreme Court of Justice, Civil Cassation Chamber, the judge recognized damage to María Judith Castillo Hernández’s reputation as an independent and distinct harm, acknowledged by case law since that year. Since this type of damage was not foreseeable when the plaintiff filed the claim (October 3, 2011), the court ruled that the claim could be redirected to specifically address this reputational harm. The court awarded damages of COP 15,000,000 based on judicial discretion (arbitrium judicis).
Legal Obligations 2024
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.
All Colombian business entities carrying out international operations must have a Business Transparency and Ethics Program (PTEE)
Data Protection & Privacy
