Abstract

PEREZ SOLANO, Jimmy Antony. The concept and nature of commercial arbitration in the Colombian legal system. Justicia [online]. 2017, n.32, pp.259-282. ISSN 0124-7441.  https://doi.org/10.17081/just.22.32.2917.

Arbitration is a century-old figure in our legal system that emerges as an independent trial body authorized by the State, whose essence lies in that person specialized in the matter, resolve disputes over rights of free disposition that are presented to them by subjects that accord or agree that they are the arbitrators through arbitration and not the judges through the state judicial route, who settle the controversy that has been entrusted to them. Notwithstanding its seniority within our legal system, arbitration takes its constitutional seat from the issuance of the Constitution of 1991, whose article 116 arises the notion of Alternative Mechanism for Conflict Resolution, after incessant but decanted academic debates, to give birth to the most complete and integrated legal regulation as of the issuance of the Colombian Arbitral Statute Law 1563 of 2012; the first arbitration decisions were called “Arbitral Judgment” and later, exactly in 1970, they are called “Arbitral Award”. Now, as regards the legal nature of arbitration, various doctrines have been formulated and defended in this respect, among which we have: contractualist, judicial or procedural, mixed and most recent of all of them, autonomous or arbitral doctrine, which understands arbitration as an independent legal institution with its own nature. Thus, arbitration is characterized by its conventionality, temporality, exceptionality and its legality, so that this alternative mechanism for the settlement of disputes rises as a true jurisdictional equivalent.

Keywords : Arbitration; Conventionality; Jurisdiction; Justice; Alternative mechanisms; Procedure.

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