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This article aims to study objective arbitrability in domestic arbitration in Colombia. This article proposes a catalog or list of matters that are not arbitrable originating in the law itself, in the various decisions that the courts and doctrine have uttered. In addition, this text comments on particular areas or topics that, although arbitrable, have proved currently controversial for the arbitrators' knowledge. After identifying and studying the issues that are not arbitrable in Colombia and then refer to certain specific issues that may be submitted to arbitration (that are worth mentioning), it is concluded that, as a result of the freedom of the law, a list of non-arbitrable matters in Colombia has been built. This list at no time is intended to be limiting or much less taxative, but that reflect the evolution that the legislator and the courts have had in its continuous construction. For the elaboration of this list, the dogmatic method of legal investigation has been used, which takes into account the legal provisions, doctrine and jurisprudence of the High Courts in Colombia. [ABSTRACT FROM AUTHOR]

With the adoption of the national status of domestic and international arbitration, Colombia took a big step in arbitration, the contributions of the Law 1563 of 2012 are novel for arbitration, especially regarding precautionary measures of different types, i.e., nominated and nameless. However, it is necessary to refer to the application, recital and practice of these measures can be taken in two periods: before and after being notified by the defendant in an arbitration process. However, the 1563 Act of 2012 presents a gap in the adoption of precautionary measures called early, so the Hotbed of Litigation in this paper makes a proposal based on international arbitration, to be regulated in Colombia this figure and so ensure that the arbitration process will safeguard effectively the rights recognized by substantive law, as envisaged in the General Code of Procedure and the Constitution of Colombia. This research figures such as the arbiters of urgency, the pre-arbitration and judicial support the theory of the referees as an open catalog of possibilities will be presented in front of experts in the field to take the best option refers to domestic arbitration is appropriate to the implementation of precautionary measures and anticipatory unnamed in the arbitration process in Colombia. [ABSTRACT FROM AUTHOR]

The use of dilatory tactics by recalcitrant parties has become a reality of the international commercial arbitration. The purpose of this article, using a qualitative method of research based in the critical review of literature and case study, is to show that such tactics can be prevent through the application of the Competence - Competence Principle, from the point of view of its two effects: positive and negative, settled in the arbitral doctrine and several conventions and rules on international commercial arbitration. Thus, first, we will study the Competence - Competence Principle because it supposes a minimum of supervision by the judicial courts, and it gives faculties to the arbitral tribunal to guide the arbitral process until its decision stage without further delay; second, we will show types of dilatory tactics employed by the parties in the arbitral procedures to impugn without cause the lack of jurisdiction of the arbitral tribunal, and finally we will analyze the mechanisms or tools based in the faculties of the arbitrators that may be used to counteract them. [ABSTRACT FROM AUTHOR]

The present paper is a bibliographical overview which constitutes the author's first document presented for his PhD in Law from the Universidad Javeriana. It presents the latest studies on formalisation and judicialisation of arbitration in some legal systems in Latin America. For this purpose, it will deal with matters such as the definition of the legal nature of arbitration, monism and dualism in legislative structures, the constitutionalisation of the figure and phenomenon of judicial intervention. [ABSTRACT FROM AUTHOR]

The issue of repeated appointments of arbitrators is gaining increasing importance in the practice of international arbitration. The fact that an arbitrator's neutrality may be directly impacted when he is nominated by the same party on several occasions cuts to the core of this issue. In a context where jurisprudential and academic works on the subject of 'repeat arbitrators' are few, the intention of this piece is to offer a brief description and analysis of the current état de l'art on the matter. Firstly, I introduce the role of an arbitrator in the context of international arbitration. Secondly, I address the relevance of the standards of impartiality and independence in the light of the issue of 'repeat arbitrators'. Thirdly, I describe some of the factors that come into play when confronted by the possibility of a repeat appointment: namely, the extent to which economic reward, a desire to maintain a pre-existing working relationship between arbitrator and appointing party, and concern for the arbitrator's reputation influence the reappointment. Fourthly, I suggest two distinct analyses of the situations in which an arbitrator has been repeatedly nominated. On the one hand, I propose the 'factual repeat arbitrators' analysis, on the other I propose what I had dubbed 'legal repeat arbitrators'. I end this section by expounding upon the issue of 'repeat arbitrators' by way of the statistics. Finally, I conclude that a determination of an arbitrator's impartiality and independence is a very subjective one. There are many variables that must be taken into consideration; whilst the idea of being repeatedly appointed may seem attractive to an arbitrator, respect for his own reputation will always play a fundamental balancing role in his decision to accept a repeat appointment. [ABSTRACT FROM AUTHOR]

The term investor is inexorably linked to the concept of nationality. Although public international law has established clear and mandatory criteria to determine the effectiveness of nationality, ICSID arbitral tribunals have disregarded such criteria and have rather adopted a pro-arbitration approach inconsistent with the general principles of international law and the very same scope of the ICSID Convention. [ABSTRACT FROM AUTHOR]

The recognition and enforcement of foreign arbitral awards that have been set aside at the seat of arbitration are becoming increasingly important in the evolution of international arbitration. In an attempt to provide a comparative outlook into today's landscape regarding the enforcement of such awards, this article seeks to both explain and critically analyze the application and interpretation given to the New York Convention throughout different jurisdictions, focusing on the French and the American. As the convention consents to the enforcement of foreign awards that have been previously set aside, by using relevant case-law, this article highlights the two different paths that national courts have undertaken: the first is favorable to the internationalization of arbitral awards whereas the second is a more controlling and restrictive approach, favorable to the idea of the sovereignty of foreign courts. In light of the Convention's travaux préparatoires, which clearly show the intent of the drafters to favor an 'arbitral legal order', this article concludes by stating that even though court decisions do not benefit from extraterritorial application, the Convention does indeed allow judges to deny enforcement of an award on the basis that it that has been set aside or suspended by a competent authority in the country in which that award was made. [ABSTRACT FROM AUTHOR]

This article discusses the study of the parties into ICSID arbitration, in the first place, investors and states as the disputing parties in arbitrations on investment and, secondly, the called Amici Curiae, who act as third parties within these procedures. The author analyzes conditions to be met by each one of these individuals in order to access into ICSID jurisdiction, and through review of existing arbitral decisions on the matter, not always coincide and uniform, identifies major trends that courts follow today. [ABSTRACT FROM AUTHOR]

This article analyses how the fair and equitable standard is applied by international tribunals from the interpretation of the clauses of the bilateral investment treaties, establishing a tension with the notion of regulation, as States police power on the economic activities within their territories. We try to show how international tribunals deal with this tension defining limits to the States powers and fixing the scope to the standard. This article is the first part of the study mentioned above, and the second section will address the Arbitration Court's judicial decisions within the North American Free Trade Agreement. [ABSTRACT FROM AUTHOR]

Investor-State forums, particularly ICSID, permit and encourage State counterclaims. Yet State counterclaims in investor-State disputes always fail. This article surveys State counterclaims in investor-State disputes in an attempt to understand why they always fail. The article first examines jurisdictional requirements for State counterclaims. Subsequently, the article summarizes and aggregates tribunals' interpretations of these requirements, extracting a rough representation of counterclaim treatment. Cumulative information suggests that the repeated failures might be explained in part by narrow interpretations of counterclaim jurisdictional requirements. As well, lack of substantive protections for States in bilateral investment treaties, free trade agreements and other international investment agreements (IIAs) appears to exacerbate the problem. Finally, the article suggests that concerned States include substantive protections for States in their IIAs. [ABSTRACT FROM AUTHOR]

The international socio-legal system was born principally as a measure taken by a set of states that were seeking to mitigate the political, economic, and cultural fractures that caused conflicts between them. This purpose overlooked the fact that the nature of each of these factors has different degrees of causation. The intention of the system is to be a dynamic order even though, presently, new realities have shown its failure and suggest the need for restructuring. In this context, Italian author Umberto Eco, in his book "A paso de cangrejo," compiles articles written between 2000 and 2005 that give critical accounts of this dynamic. [ABSTRACT FROM AUTHOR]

The ruling of the International Court of Justice on the "Case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)" is crucial in the international arena, inasmuch as it contains the first jurisdictional analysis on the international responsibility of a State of the crime of Genocide. In addition, it sheds lights on the issue of the rights and obligations that result from the Convention against Genocide, and that of obligations of means like the prevention of Genocide. Only a contextualized study of the ruling reveals the Court's peculiar use of concepts: this Tribunal resorts to concepts like "total control" to discard the configuration of the crime in opportunities in which, according to the elements of the genocide previously delineated by the international doctrine and jurisprudence, was undeniably perpetrated. However, we cannot ignore that the Court has advanced in extending the reach to the obligations derived from the Convention against Genocide. Therefore, though much is still to be done, the ruling is a hint of innovation that will probably lead, when the state-of-the-art allows it, to something closer to justice. [ABSTRACT FROM AUTHOR]

This paper analyzes the individual and collective mediations as alternative dispute resolution schemes (ADRs) developed by SERNAC (Servicio Nacional del Consumidor). In order to reach this objective, this work examines and comments on the consumer protection law, before and after its last modification, with a contrast' technique. The study of the normative and its changes leads us to the general conclusion about the individual and collective mediation are, strictly speaking, negotiations. These negotiations represent a legislative effort directed to introduce rules for these types of Alternative Dispute Resolution (ADR). [ABSTRACT FROM AUTHOR]

Paradoxically, the different institutional and arbitration rules available to the parties in dispute have traditionally been scarce regarding procedural transparency, leaving these issues mainly to the discretion of the parties, or, in the absence of agreement, to the arbitral tribunal. Procedural problems in international arbitration are increasingly frequent, of greater complexity and utmost concern. These are issues that, together with the public interest, are an object of interest in this article. [ABSTRACT FROM AUTHOR]

This article aims to examine whether the arbitration executive process is viable in Colombia as well as to study the main questions about this possibility, through a deductive method and critical analysis. This includes exploring its real usefulness, the requirements of the executive arbitration agreement and the main guidelines in case of an eventual regulation on the subject. The main conclusion is that there are no regulatory nor legal impediments of the national arbitration in Colombia that goes against the viability of an arbitral executive process. Nevertheless, there must exist a regulation in this respect in advance. [ABSTRACT FROM AUTHOR]