Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Colombia

Civil Code1

Law No 57 of 1887

[…]

Article 18. Obligatoriness of the Law. The Law is mandatory on both nationals and foreigners living in Colombia.

Article 19. Extraterritoriality of the Law. Colombians who are residents or domiciled in a foreign country, remain subject to the provisions of this Code and other national laws governing civil rights and obligations:

  • With regard to the status of individuals and their ability to perform certain acts which are to have effect in any of the territories administered by the general government, or in matters within the competence of the Union.

  • In the rights and obligations arising from family relations, but only for their spouses and relatives in the cases mentioned in the preceding paragraph.

Article 20. Applicability of the Law on Assets. Assets located in the territories, and those in the States, in whose ownership the Nation has an interest or right, are subject to the provisions of this Code, even when their owners are foreigners residing outside of Colombia.

This provision is without prejudice to the provisions contained in validly subscribed contracts in a foreign country.

But the effects of such contracts, to be fulfilled in any territory, or in cases affecting the rights and interests of the Nation, shall conform to this code and other civil laws of the union.

Article 21. Format for Public Instruments. The form of public instruments is determined by the law of the country in which they were granted. Their authenticity is proven according to the rules established in the judicial code of the union.

Form refers to external formalities, to [sic] authenticity, to having actually been issued and approved by the persons and in the manner stated in such instruments.

Article 22. Probative Function of Public Instruments. Where codes or laws of the Union demand public documents for evidence to be surrendered and have effect on matters within the competence of the Union, private deeds shall not be valid, whatever the strength of these in the country where they were granted.

[…]

Article 1012. Installment of Estate. Inheritance of the property of a person initiates at the time of his death at his last address, unless in expressly excepted cases.

[…]

Article 1519. Illicit Purpose. There is an illicit purpose in everything contrary to public law in the nation. Thus, the promise to submit within the republic to a jurisdiction not recognized by the laws thereof is void for vice in its purpose.

[…]p. 3074

Code of General Procedure2

Law 1564 of 2012

[…]

Article 28. Territorial Jurisdiction. Territorial jurisdiction shall be subject to the following rules:

  • In contentious proceedings, unless otherwise provided for by law, the judge in the defendant’s domicile has jurisdiction. If there are several defendants or the defendant has multiple addresses, the judge at any of them at the plaintiff’s choice. When the defendant no longer has a domicile in the country, the judge at his place of residence shall have jurisdiction. If he has no residence in the country or it is unknown, the judge in the domicile or residence of the plaintiff shall have jurisdiction.

  • In proceedings for alimony, nullity of civil marriage and divorce, cessation of civil effects, separation of property, declaration of existence of de facto marital union, or liquidation of common property assets and precautionary measures concerning persons or property related to such proceedings or the nullity of a Catholic marriage, the judge corresponding to previous common domicile shall also have jurisdiction, as long as the plaintiff maintains it. In proceedings for child support, loss or suspension of parental rights, investigation or denial of paternity or maternity, wards, personal care and regulation of visits, permission to leave the country, precautionary measures on persons or property related to such proceedings, in which the child or adolescent is a plaintiff or defendant, the judge presiding at the minor’s domicile or residence shall have exclusive jurisdiction.

  • In proceedings arising from any legal agreement or involving executive title the judge presiding at the place of performance of any obligations shall also have jurisdiction. For legal purposes, the stipulation of contractual address shall be deemed not written.

  • In proceedings for annulment, dissolution and liquidation of companies, and those arising from disputes between partners of the firm, civil and commercial, even after liquidation, the judge sitting at the principal address of the company shall have jurisdiction.

  • In proceedings against a legal person the judge at its principal domicile has jurisdiction. However, when dealing in cases linked to a branch or agency, the judges for each of them shall, presumptively, have jurisdiction.

  • In proceedings in tort, the judge corresponding to the place where the incident occurred shall also have jurisdiction.

  • In processes in which property rights are exercised, in the partition of surveying and marking, expropriation, easements, possessory of any kind, restitution of tenure, statement of ownership, and vacant and abandoned property, the judge where the properties are located shall have exclusive jurisdiction, and if they are in different territorial constituencies, the judge in any of them, at the plaintiff’s choice.

  • In bankruptcy and insolvency proceedings, the judge sitting in the debtor’s domicile shall have exclusive jurisdiction.

  • In proceedings in which the State is a plaintiff the judge corresponding to the municipality head of the judicial district where the defendant is domiciled has jurisdiction, and where the State is the defendant, the judge corresponding to the municipality head of the judicial district of the plaintiff. When a party is comprised by the State and any other subject, the territorial jurisdiction of the former shall prevail.

  • In litigation in which a regional entity is a party, or a decentralized services entity or any other public entity, the judge in the domicile of the respective entity shall have exclusive jurisdiction. When the party is comprised by a regional entity or a decentralized services entity or any other public entity and any other person, the territorial jurisdiction of the entity shall prevail.

  • p. 3075In proceedings for intellectual property and unfair competition the judge where the law was violated or the act done also has jurisdiction, or of the place where its effects took place if done abroad, or the place where the company has operations, premises or facilities or where the defendant engages in the occupation, when the violation or act is linked to these places.

  • In probate proceedings the judge in the last domicile of the deceased in the country shall have jurisdiction, and if at the time of his death he had more than one domicile, the judge corresponding to his principal place of business.

  • In proceedings of voluntary jurisdiction, jurisdiction shall be determined as follows:

    • In cases of custody of children or adolescents, interdiction and custody of people with mental disabilities or deaf-mutes, the judge sitting at the ward’s place of residence.

    • In those for declaration of absence or death by disappearance, the judge at the last known address that the absent or disappeared person had in the country shall have jurisdiction.

    • In all other cases, the judge at the domicile of those bringing the action.

  • For the valuation of extra-procedural evidence, requirements and miscellaneous proceedings, the judge at the place where such evidence must be evaluated or the address of the person to whom the act shall be performed shall have jurisdiction, as appropriate.

[…]

Article 30. Jurisdiction of Civil Appeals Chamber of the Supreme Court. The Civil Chamber of the Supreme Court shall hear:

  • Of appeals.

  • Of the appeals that are not attributed to the higher courts.

  • Of Complaints when the appeal is denied.

  • Of exequatur of judgments issued in a foreign country, subject to the provisions of international treaties.

  • Of the exequatur of arbitral awards issued abroad, in accordance with the rules governing the matter.

  • Of litigation in which a foreign state is a party, or a diplomatic agent accredited before the Government of the Republic, in the cases provided for by international law.

  • Of motions for review of arbitration awards that are not attributed to the jurisdiction of administrative litigation.

  • Of requests for change of venue in a process or action of civil, commercial, agricultural or family nature, involving a referral to another judicial district. The change of venue will become available when exceptionally in the place where it is filed there are circumstances that may affect public order, impartiality or independence of the judiciary, due process or the security or integrity of the participants. The evidence sought to be enforced will be attached to the petition for reassignment and the same will be resolved by non-appealable judicial order. The application for change of venue does not suspend the process or toll its time provisions. Additionally, a change of venue may be ordered when mismanagement or untimeliness of proceedings are noted, by prior opinion of the Administrative Chamber of the Superior Council of the Judiciary.

[Notes on repeals]

Paragraph. The Attorney General’s Office or the Director of the National Agency for the Legal Defense of the State are also entitled to request the change of venue provided for in paragraph 8.

[…]

Article 177. Proof of Legal Standards. The text of legal rules that do not have national scope and foreign laws may be asserted by copy to the case file, sua sponte or upon motion by the parties.

The full or partial copy of the foreign law must be issued by the competent authority of the country, that country’s consul in Colombia, or ordered by the Colombian consul in the country.

p. 3076An expert opinion given by an expert person or institution may also be attached based on their knowledge or experience with the law of a country or territory outside Colombia, regardless of whether they are enabled to act as a lawyer there.

In the case of foreign unwritten law, the same may be asserted by the testimony of two or more lawyers in the country of origin or by expert opinion under the terms of the preceding paragraph.

These rules shall apply to resolutions, notices and opinions of administrative authorities. However, their presentation shall not be necessary when they are published on the website of the public body.

[…]

Article 179. Proof of Trade Customs. National commercial practice and its validity will be proven:

  • By the testimony of two (2) merchants registered in the commercial register giving reasoned consideration of the facts and requirements for the same in the Code of Commerce.

  • By final court decisions asserting its existence, issued within the five (5) years prior to the dispute.

  • By certification of the chamber of commerce in the place where established.

Foreign commercial practice and its validity will be accredited by certification from the respective Colombian consul or, failing that, from a friendly nation. These officials issuing the certificate shall request a record from the local chamber of commerce or entity serving as such and, in the absence of both, from two (2) local attorneys with recognized integrity who specialize in commercial law. It may also be proven by expert opinion given by an expert person or institution based on their knowledge or experience with the law of a country or territory, regardless of whether they are entitled to act as an attorney there.

International commercial practice and its validity shall be deemed proven with a copy of the judgment or award where an international judicial authority has acknowledged, interpreted or applied it. It may also be proven by certification from a suitable international entity or expert opinion given by an expert person or institution based on their knowledge or experience.

[…]

Article 605. Effects of Foreign Judgments. Judgments and other provisions of such character pronounced by foreign authorities in contentious or noncontentious proceedings, will have in Colombia the force granted on them by existing treaties with that country, and failing that the effect there recognized for those issued in Colombia.

The enforceability of arbitral awards uttered abroad is subject to the rules governing the matter.

Article 606. Requirements. For the foreign judgment to be enforceable in the country, it must meet the following requirements:

  • That it not touches upon real rights in property found in Colombia at the time of the beginning of the process in which the judgment was issued.

  • That it not be opposed to legislation or other Colombian public policy provisions, except for procedural ones.

  • That it be proffered under the law of the country of origin, and a legal copy be duly filed.

  • That the matter on which it rests not be an exclusive jurisdiction of the Colombian courts.

  • That there does not exist in Colombia a current process or a judgment rendered by domestic courts on the same issue.

  • That if it were issued in a contentious process, it has met the requirement of proper notice and confrontation by the defendant, under the law of the country of origin, which is presumed by the execution.

  • The exequatur requirement is met.p. 3077

Article 607. Proceedings of Exequatur. A request for exequatur of a foreign judgment, in order that it becomes effective in Colombia, will be presented by the applicant to the Civil Chamber of the Supreme Court, except if in accordance with applicable international treaties it belongs to another judge, and the party affected by the judgment shall be called before the court, if it has been rendered in a contentious proceeding.

When the judgment or any document provided is not in Spanish, the copy of the original will be presented with a legal translation.

For the exequatur, the following rules shall apply:

  • The lawsuit must request the evidence that is deemed appropriate.

  • The Court shall reject the claim should it fail any of the requirements in paragraphs 1–4 of the preceding article.

  • The lawsuit shall be provided to the affected party with the judgment and to the corresponding special prosecutor considering the nature of the case, in the manner indicated in Article 91, for a term of five (5) days.

  • Once the transfer is effected the evidence shall be ordered and a hearing will be set to consider it, hear the arguments of the parties, and issue a sentence.

  • If the Court grants the exequatur and the foreign judgment requires execution, the competent judge shall preside over it in accordance with the general rules.

[…]

Code of Civil Procedure3

Decree 1400 of 1970

[…]

Article 23. General Rules. Territorial jurisdiction shall be determined by the following rules:

  • In contentious proceedings, unless otherwise provided for by law, the judge where the defendant is domiciled has jurisdiction; if the defendant has several domiciles, the judge in any of them by choice of the plaintiff, unless the case deals with matters relating exclusively to one of these addresses, in which case the judge thereof has jurisdiction.

  • If the defendant has no domicile, the judge in his place of residence has jurisdiction, and if he does not have residence in the country, the judge in the plaintiff’s domicile.

  • If there are two or more defendants, the judge in the domicile of either shall have jurisdiction, at the option of the plaintiff.

  • In proceedings for alimony, annulment and divorce from civil marriage, separation of property, community property settlement, loss or suspension of parental rights, or impeachment of legitimate paternity, and in precautionary measures concerning persons or property related to such processes or those of annulment, divorce and legal separation of Catholic marriage, the court corresponding to the previous common domicile shall also have jurisdiction, as long as the plaintiff maintains the domicile.

  • In proceedings arising from a contract, the judge in the place of performance and the defendant’s domicile shall be competent, at the plaintiff’s choice. For legal purposes, the contractual address stipulation shall be deemed not written.

  • In proceedings for annulment, dissolution and liquidation of companies, and those arising from disputes between partners in name of the company, even after liquidation, the judge at the company’s main address shall have jurisdiction.

  • p. 3078In proceedings against a company the judge of its primary residence shall have jurisdiction, but in cases linked to a branch or agency, the judges for each of them shall, presumptively, have jurisdiction.

  • In proceedings in tort, the judge corresponding to the place where the incident occurred shall also have jurisdiction.

  • In processes in which property rights are exercised, the judge of the place where the properties are located shall also have jurisdiction; a lawsuit dealing with one or more properties located in different territorial jurisdictions may be tried before a judge in any of them, at the plaintiff’s option.

  • In proceedings of division, of surveying and marking, expropriation of easements, possessory of any kind, restitution of holding, declaration of belonging, and vacant and abandoned property, the judge of the place where the property is located shall have exclusive jurisdiction, and when these include different territorial jurisdictions, the judge in any of them, at the plaintiff’s choice.

  • In proceedings to determine who shall have a lay chaplaincy or a board of laymen, the judge in the plaintiff’s domicile will have jurisdiction.

  • In accountability proceedings the judge corresponding to the main administrative center shall also have jurisdiction.

  • In bankruptcy proceedings, liquidation by creditors and transfer of property, the judge in the debtor’s domicile shall have exclusive jurisdiction, and if he has several, the judge presiding at his principal place of business.

  • In estate proceedings the judge in the deceased’s last domicile in the country shall have jurisdiction, and if at the time of death he had more than one domicile, the judge presiding at his principal place of business shall have jurisdiction.

  • In proceedings brought against assignees, the spouse or administrators of the estate, for cause or by reason thereof, the judge hearing the probate process shall have jurisdiction while the proceedings last, if determined by the amount of the estate and if not, the judge corresponding to the territorial jurisdiction.

  • Without prejudice to the provisions of international treaties, the testate or intestate probate process of an alien not domiciled in the country, if processed in the same, shall be heard by the judge presiding at his principal place of business.

  • Any litigation involving the State shall be heard by the circuit judge of the defendant’s vicinity, and in those in which the nation is sued, the plaintiff’s domicile.

  • In litigation where a department, a state, a territory, a municipality, a public facility, an industrial or commercial business of the State or of any of the above entities, or a mixed capital company, shall be heard by the judge in the domicile or municipality seat of the defendant. When comprising one of such entities and a natural person, the jurisdiction of the former shall prevail.

  • In the process of voluntary jurisdiction the same shall be determined as follows:

  • In the custody of minors, interdiction and custody of mad or deaf persons, the judge presiding at the residence of the ward will have jurisdiction;

[…]

Article 25. Functional Jurisdiction of the Civil Appeals Chamber of the Supreme Court. The Supreme Court hears in its Civil Chamber:

  • Of appeals.

  • Of the appeals that are not attributed to the higher courts.

  • Of Complaints when the appeal is denied.

  • Of exequatur of judgments and arbitral awards issued in a foreign country, subject to the provisions of international treaties.

  • Of litigation in which a party is a diplomatic agent accredited before the Republic, in the cases provided for by international law.

  • p. 3079Of liability proceedings dealt with in Article 40, against Justices of the Court and tribunals, regardless of their nature.

[…]

Article 188. Legal Standards without National Scope and Foreign Law. The text of legal rules that do not have national scope and foreign laws will be referred to the proceedings by genuine copy sua sponte or upon motion by the parties.

The full or partial copy of the foreign law must be issued by the competent authority of the respective country, authenticated in the manner provided in Article 259. It may also be issued by the Consul of the country in Colombia, whose signature will be authenticated by the Ministry of Foreign Affairs.

In the case of foreign unwritten law, it may be proved by the testimony of two or more lawyers in the country of origin.

[…]

Commercial Code4

Decree 410 of 1971

[…]

Article 5. Application of Commercial Custom. Mercantile customs shall also serve to determine the meaning of words or technical trade phrases and to interpret commercial actions and agreements.

[…]

Article 7. Application of Treaties, Conventions and International Custom. Treaties or international conventions on trade not ratified by Colombia, international commercial practice which meets the conditions of Article 3, and the general principles of commercial law, may be applied to trade issues that cannot be resolved in accordance with the preceding rules.

[…]

Article 469. Definition of Foreign Firm. Foreign companies are those incorporated under the law of another country and domiciled abroad.

[…]

Article 497. Application of other Provisions. The provisions of this Title shall govern without prejudice to those agreed in international treaties or agreements. In matters not covered herein the rules for Colombian companies shall apply. Likewise, all foreign companies will be subject to it, except insofar as they are subject to special rules.

[…]

p. 3080Article 646. Security Issued Abroad. Securities created overseas will be considered securities if they meet the minimum requirements of the law that governed their creation.

[…]

Article 864. Definition of a Contract. A contract is an agreement between two or more parties to establish, regulate or terminate an equity legal relationship, and unless otherwise specified, shall be understood as subscribed at the place of residence of the proposer and at the time when he receives acceptance of the proposal.

It shall be presumed that the offeror has received acceptance when the recipient offers proof of remittance within the terms established in Articles 850 and 851.

[…]

Article 869. Fulfillment of Contracts Executed Abroad with Compliance in Colombia. Fulfillment of contracts executed abroad to be performed in the country are governed by Colombian law.

[…]

Article 1012. Installment of Estate. Inheritance of the property of a person initiates at the time of his death at his last address, unless in expressly excepted cases.

The estate is governed by the law of the domicile where it is initiated, unless there are legal exceptions.

[…]

Article 1054. Intestate Inheritances of Foreigners. [Conditionally enforceable Article] In the intestate probate proceeding of an alien who dies within or outside the territory, members of the estate will have by inheritance of conjugal or support shares, the same rights that the laws of the territory would grant on the intestate inheritance of a member of the territory.

[…]

Article 1328. Subjection to Colombian Law. For all purposes, commercial agency contracts performed in the country are subject to the laws of Colombia.

[…]

Unofficial translation by Álvaro Becerra Barrera, Official Translator and Interpreter, Bogotá (Colombia) and Erna von der Walde, Certified Translator and Interpreter, Traducir Internacional, Bogotá (Colombia). The editors wish to thank the translators for their permission to publish the translation.

Unofficial translation by Álvaro Becerra Barrera, Official Translator and Interpreter, Bogotá (Colombia) and Erna von der Walde, Certified Translator and Interpreter, Traducir Internacional, Bogotá (Colombia). The editors wish to thank the translators for their permission to publish the translation.

Unofficial translation by Álvaro Becerra Barrera, Official Translator and Interpreter, Bogotá (Colombia) and Erna von der Walde, Certified Translator and Interpreter, Traducir Internacional, Bogotá (Colombia). The editors wish to thank the translators for their permission to publish the translation.

Unofficial translation by Álvaro Becerra Barrera, Official Translator and Interpreter, Bogotá (Colombia) and Erna von der Walde, Certified Translator and Interpreter, Traducir Internacional, Bogotá (Colombia). The editors wish to thank the translators for their permission to publish the translation.