By: Jaritza Orozco López
Traditionally, conflicts that arise in social and/or business dynamics have been resolved by judicial means, but it is increasingly common for them to be resolved by Alternative Methods of Conflict Resolution (AMCR), such as negotiation, mediation, conciliation, and arbitration. Arbitration has become relevant because it is a mechanism that arises from the autonomy of the will of the parties, who submit their dispute to an arbitrator who renders a decision following the process.
The relevance of arbitration is also due to the speed and flexibility of the procedure, since it has a series of principles that give it an advantage over judicial ´rocesses, such as confidentiality, privacy, informality, flexibility, among others. which allow the parties to dictate the arbitration procedure.
Generally, the arbitral process ends with an arbitration award, except in cases of withdrawal or settlement, which has the force of a final judgment and is enforced in the same way as national or foreign judicial sentences. However, there are no subsequent appeals against arbitration awards that seek to modify their resolution; there is only the appeal for annulment, which is heard by the Civil Chamber of the Supreme Court of Justice, and its purpose is to guarantee effective judicial protection.
The annulment appeal is considered an extraordinary remedy, which means that the law establishes the grounds and reasons for which it can be requested (art. 61 of Law 540); these grounds are limited to the examination of the formalities and procedures of the arbitration process, but not to a substantive study. However, not every violation of the arbitration process is susceptible to an appeal for annulment, as the parties have the obligation to challenge any violation or non-compliance of the process during its execution; failure to do so means that there has been a waiver of the right of challenge, and consequently the grounds for annulment are limited to circumstances that were challenged during the process or to circumstances that could not be challenged during the execution of the process.
These grounds for nullity follow a homogeneous criterion in various legislations based on the UNCITRAL Model Law on International Commercial Arbitration and have been classified into two large groups: those raised by the parties, which take into account an evidentiary element (section 1 of art. 61 of law 540); and those that can be reviewed ex officio, which are based on the nature of public order, so legal argumentation and demonstration of the facts with the law will prevail, since these are situations that involve violations of public order and due process (section 2 of art. 61 of law 540).
In summary, the arbitration award marks the end of an arbitration process and its execution is similar to that of a court judgment. Although it does not allow subsequent appeals for modification, the appeal for annulment is available in specific circumstances and is limited to formal issues of the process. It is essential that the parties challenge any irregularity during the process in order to avoid limiting the grounds for annulment.