Abstract

ALVAREZ ZARATE, JOSÉ MANUEL. Colombian legal formalism or how to prevent the protection of public interest in public-private arbitration. Rev. Derecho Estado [online]. 2023, n.57, pp.161-202.  Epub Dec 11, 2023. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n57.07.

Arbitration in Colombia is based on an ancient stringent legal formalism that has transplanted, transformed, and mixed, Spanish and Roman laws and legacies with French exegesis. It has also been based on German jurisprudence. This paper describes how Colombian legal formalism has limited the protection of public interests in arbitral proceedings as provided in the 1991 Colombian Constitution. It also shows how it has infused Administrative Law and mainly Procedural Law over time, where formalism is more stringent, and full of useless rhetorical technicalities. As a result, it has privileged the private interest over the public one despite the Constitutional provision to safeguard the public interest over private one. The protection of the public interest is grandiloquently stated in the constitution and in administrative law but with limited practical effect. Consequently, each phase in public-private arbitration is lavishly regulated by an arbitral regime and several sections of the procedure code, the administrative procedure code and the public officials code, but none are effective at protecting the public interest. Instead of protecting the public interest, all the regulations compiled under the influence of the textualist legal culture, constitute barriers to achieving it and thus administrative law leaves it unprotected.

Keywords : Public-Private Arbitration; Investment Arbitration; Investment Law and Public Interest; Policy Space In Arbitration; Procedural Formalism In Arbitration.

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