Litigation
The firm represents clients in litigation processes of different nature when required, advising in each instance to make the best decision according to the defense of their interests.
CIVIL
- Civil proceedings before civilian judges, District Court and the Supreme Court
- Executive and ordinary proceedings (declarative rights)
- Review and evaluation of legal strategies
COMMERCIAL
- Actions for unfair competition
- Actions for violation of trade secrets and confidential information
- Disputes between shareholders, directors and litigation regarding the management of companies Contractual breach
- Actions against decisions of regulation and supervision coming from the Superintendency
ADMINISTRATIVE
- Nullification actions
- Actions for the reinstatement of rights
- Actions for direct reparations
- Writs for protection
- Popular and compliance actions
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).
Submission of Complaints, Evidence and Annexes through Technological Means
By: Maria Fernanda Gonzalez
In a recent Judgment from the Superior Civil Tribunal of Bogotá that solved an appeal against a decision by the Superintendence of Industry and Commerce (“SIC”) rejecting a complaint in a procedure of infringement of intellectual property rights, the Superior Tribunal of Bogota – Civil Section ruled that all communications, including evidence supporting the complaint, can be submitted by any suitable mean, including solutions for storing information in the cloud, particularly useful when dealing with large files due to the difficulty of sending via email.[1]
The Case
The Delegation for Jurisdictional Affairs of the SIC rejected the complaint of the plaintiff for not having corrected the initial inadmissibility of the claim of the plaintiff by presenting the chapter of evidence and annexes through a link to a repository located in the cloud (Dropbox/Google Drive) and not through the mechanisms provided in the protocol issued by the SIC for the virtual processing of judicial procedures.
The Appeals
The Appellate Tribunal based its ruling on the following:
- The documents were provided through a technological mean.
- The SIC could not claim compliance (i) with additional requirements that are unnecessary, considering the informality principle established in the General Statute of the Procedure (“CGP”, by its initials in Spanish);[2] (ii) overpassing the duty of the judicial authorities to use information and communication technologies to facilitate access to the administration of justice instead of restringing such access;[3] (iii) contradicting the rule according to which documents must be provided in the same format they were issued or in any other format reproducing them accurately;[4] and (iv) ignoring that the use of information and communication technologies in judicial proceedings was intended to make the access to justice more flexible for users.[5]
The main premise of the ruling holds that access to justice through information and communication technologies must be given in such a manner that the user can take advantages of and use any available technological means, provided that the judicial servants can access them. Thus, the Appellate Tribunal indicated that, the fact that the judicial authorities inform in their websites the official communication and information channels available to provide their services as required by law,[6] does not imply that they can impose formalities on the provision of evidence, as such formalities are exclusive for the law, based on the right to prove under the due process protected by the Colombian Constitution.[7]
Imposing on users the use of e-mail, with the limitations that it entails to transmit large files, even recognized by the SIC in the appealed decision, by means of a protocol issued by the judicial authority, it is not only unusual in these days but nugatory of the users’ right to access to justice.
Similar problems had been already identified by litigators derived from the limitations found in the system implemented by the judicial branch for virtual proceedings, which does not allow to process complaints with attachments larger than 50Mbyes, difficulties that would be easily solved by submitting the complaint, with its evidence and annexes through additional technological means such as providing access to information hosted in the cloud.
Conclusion
This ruling is of great importance, as it lays the foundations for the use of information and communication technologies in the administration of justice, in a practical and dynamic manner at the service of users, guaranteeing greater and easier access to the judicial system and preventing from ending up being truncated through unnecessary and dissimilar mechanisms designed by judicial authorities for its own convenience.
[1] Bogota Superior Court- Civil Section, February 10, 2021, File 001202096800 01
[2] Article 11, CGP
[3] Article 103, CGP
[4] Article 247, CGP
[5] Article 1, Decree 806 of 2020
[6] Article 2, Decree 806 of 2020
[7] Article 29, Colombian Constitution
Long due modernization to the administrative litigation procedure in Colombia, law 2080 of 2021
By: María del Pilar Duplat M. – Peña Mancero Abogados
Through Law 2080 of 2021 the National Congress approved the modification of the Code of Administrative Procedure and Contentious-Administrative Matters (CPACA) in Colombia, to include new developments in the use of digital and technological resources and other long-due changes, hereunder we make a brief summary of the main modifications:
- Right of Petition
People may submit petitions in any way, i.e. verbally, in writing, or through any technological or electronic means available in the public entity or embedded within the “unified Access mechanisms to the public administration”, and without the need of doing it through an attorney. Furthermore, the petitions made through electronic mechanisms shall not demand a previous registration before said entity.
- Electronic Mechanisms for the administrative procedure
- People may identify themselves before the authorities through digital authentication mechanisms.
- When authorities enable digital channels to communicate between each other, they shall use these means to develop their functions.
- People may also use the digital channels enabled by the public/administrative authorities to interact with them.
- Implementation of the electronic file: The electronic file is the set of electronic documents that correspond to an administrative procedure. The electronic file shall guarantee the authenticity, integrity and availability of the documents.
- Electronic notification: Authorities may notify their acts through electronic means, provided that the subject has authorized it. In any case, the subject may at any moment request that the subsequent notifications are not made electronically, but through other mechanisms.
- Electronic Office: The electronic office is the official electronic address of the entity. Said office shall contain all legal, organizational and technical measures that guarantee the quality, security, availability, accessibility, neutrality and interoperability of the information and the services pursuant to the standards established by the National Government.
Said electronic office shall be shared with the Unique Portal of the Colombian State, to which people may have access to the contents, procedures, services and formalities available by the public authorities.
Furthermore, there shall be an electronic registration of documents and shall have data systems with sufficient capacity and have the adequate digital security measures.
- Extension of case-law of the State Council
Authorities shall extend the effects of the unification judgments issued by the State Council where a right has been recognized to whoever requests and proves that it is under the same factual and legal situation than the one in the unification judgment. To do so, the subject interested in the extension of the case-law of the State Council shall:
- File a request before the corresponding authority to acknowledge the right.
- The legal claim must not have precluded.
- Contain a justification where it proves that the petitioner is in the same factual and legal situation in the case-law whose effects it seeks to extend to its particular case.
- Provide the evidence that it wishes to submit in the procedure.
- Make reference to the unification judgment from the State Council effects it seeks to extend.
- Expert Evidence
The parties to an administrative litigation process may submit or request to the judge to order a specific expert evidence in the way provided by the CPACA. If there is a recusal or an impediment of the expert, the Judge shall decide it immediately and without further discussion through a procedural decision which shall be final.
The Expert shall take possession of its position and shall give an oath pursuant to the law, and if the party who requested or that provided the expert evidence does not deposit the sums ordered by the judge to pay the travel expenses and the ones derived from the rendering of the expertise, it will be understood that the party waived the evidence.
The Parties shall have a term of 15 business days to submit their arguments against the expert’s opinion or to request a complementation or addition, once the expert’s opinion has been completed or added the other party shall have a term of 10 business days to submit its arguments against these new issues on the opinion.
Finally, two new special rules were created:
- Public entities may choose the experts who shall give their opinion in a judicial process through a direct procurement procedure.
- When a public entity is the one issuing the expert opinion, the judge shall order the payments of the fees to this entity.
- Administrative Litigation Procedure
All labor, pension and other matters which are not by nature negotiable matters, may be settled out-of-court, unless it is expressly forbidden by the law.
In declaratory procedures, the plaintiff may withdraw the law-suit provided that no precautionary measures/injunctive relief have been notified or performed. On the other hand, the plaintiff in an executive procedure may withdraw the suit even if precautionary measures/injunctive relief have been carried out.
Furthermore, parties may submit additional evidence in the appeals procedure, when they were decreed but not carried out in the first instance proceedings or when they have been refused in the first instance of the procedure.
Appeals and appeals for reconsideration are no longer available to challenge a sanction for non-compliance with a precautionary measure or injunctive relief, only a reconsideration request (recurso de reposición in Spanish) may be submitted before the judge who issued the decision.
- Anticipated Judgment
Pursuant to article 42 of Law 2080 of 2021, the Judge may issue an anticipated judgment, i.e. before the initial hearing, in the following cases:
- In merely legal cases
- When no evidence needs to be examined.
- There is only documental evidence submitted with the suit and/or the reply to the suit, provided that there is no claim of falsehood against the documents or allegations of lack of knowledge therein.
- When the requested evidence is not related to the claims, irrelevant or useless.
Nevertheless, in any of the aforementioned cases, the judge may decide in any case to carry out the initial hearing, if it considers it appropriate.
To sum up hereunder you will find a graphic with the main amendments to the CPACA:
| Right of Petition | Electronic Mechanisms for the administrative procedure | Extension of case-law of the State Council | Expert Evidence | Administrative Litigation Procedure | Anticipated Judgment |
| Petitions may be submitted in any way, and through electronic mechanisms | The Administrative Procedure may be carried out through electronic or digital mechanisms and have access to the case files electronically. | If a subject considers that it is under the same factual and legal situation than the one in a unification judgment of the State Council it can request the extension of this case-law. | The expert evidence shall be considered waived the Parties do not deposit the fees and expenses of the experts in the established term.
The Parties shall have a term of 15 business days to submit the arguments against an expert’s opinion or to request its clarification, complementation or addition. |
All labor, pension and other matters which are not by nature negotiable matters, may be settled out-of-court, unless it is expressly forbidden by the law | The Judge may issue an anticipated judgment before the initial hearing when there is no evidence to be examined or discussed or in merely legal cases |
If you have further inquiries about the modifications to the administrative litigation procedure introduced by Law 2080 of 2021, do not hesitate to contact our team of experts at: info@pmabogados.co
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