12 de Mayo del 2015
TACIT WAIVER OF THE ARBITRATION CLAUSE IN STATE CONTRACTS: A NEW JURISPRUDENCE IN COLOMBIA?
There are numerous cases concerning state contracts that contemplate arbitration clauses, where several decades after a lawsuit has been filed by any party thereof, the State Council finally decides on the matter of its jurisdiction. In several occasions the State Council has decided to nullify the ongoing judicial proceedings and to transfer the case to the relevant Chamber of Commerce, so that an arbitration tribunal is summoned under the rules of arbitration contemplated by the parties in the corresponding state contract. In other occasions, the State Council has decided to reaffirm its jurisdiction arguing the tacit waiver of the arbitration clause by the parties; this occurs when the plaintiff files a lawsuit before regular courts and the defendant omits filing the objection arising from the existence of an arbitration clause in the state contract.
Prior to the unification document issued by the Plenary of the Third Section of the State Council, dated April 18th, 2013 (85001233100019980013501) (the “Unification Document”), the prevailing jurisprudence of the State Council accepted the theory of the tacit waiver of the arbitration clause. However, from the Unification Document the thesis of the State Council was amended to argue that the only way that an arbitration clause included in a state contract could be left without legal effects, is if the parties thereof expressly agreed to it, with the same solemnities that the law require for the the formation of arbitration agreement.
Notwithstanding the foregoing, the Unification Document clarified that the theory arising therefrom would not be applicable to those arbitral proceedings governed by Law 1563 of 2012, where the paragraph of article 21 states that: "the omission of the defendant in filing the objection based on the existence of an arbitration clause before the relevant court implies the waiver or renunciation to the arbitration agreement, for such specific case".
However, on March 5th, 2015 the Fifth Section of the State Council issued the “protection action” (acción de tutela) No.11001031500020150003100 (the “Protection Action”) outlining a new jurisprudence in this matter. The Protection Action affirmed that, for determining the jurisdiction of the courts, and in virtue of the perpetuatio jurisdictionis principle, the tacit waiver of the arbitration clause contemplated in a State contract would be valid depending on the factual situations and the rules applicable at the time of the filing of the corresponding lawsuit by the plaintiff.
Consequently, according to the Protection Action, if at the time of filing of a lawsuit derived from a state contract the jurisprudence of the State Council recognized the tacit waiver of the arbitration clause, the corresponding court had the duty to assume jurisdiction in compliance with the applicable jurisprudence of the State Council in force at such date; on the contrary judges would be infringing the perpetuatio jurisdictionis principle, since the jurisprudence of the State Council that was in force on such date was a rule that, “although of jurisprudential nature, it had such a binding force that it had created (not only in legal operators, but also in the recipients of the law) the conviction that the arbitration agreement could be tacitly waived by the passive attitude of the defendant, regarding the proposal of the relevant objection, which would determine the specific jurisdiction to resolve the subject-matter on this jurisdiction."
If the thesis contemplated in the Protection Action consolidates, the theory arising from the Unification Document would turn ineffective, therefore, the theory of the tacit waiver of the arbitration clause contained in state contracts would be the applicable theory, since for lawsuits filed starting October 12th, 2012 the rule provided in the paragraph of Article 21 of Law 1563 de 2012 would be applicable, and for lawsuits filed prior to such date the applicable jurisprudence was the one that included the option or possibility of the tacit waiver of the arbitration agreement.
 Ruling dated March 5th, 2015. Fifth Section of the State Council. Filing number:11001031500020150003100
JULIAN SOLORZA MARTINEZ
Senior Lawyer at MNA - LatamLex