Gathering Evidence in Aid of Foreign Litigation Guide |
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Colombia |
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| (Latin America/Caribbean) Firm Brigard Urrutia Updated 21 Mar 2022 | |
| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes, Colombian law allows the gathering of evidence in aid of foreign litigation. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Yes, Colombia is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) (Law 1282 of 2009). Colombia did not make any reservations about the treaty. In addition to the Hague Evidence Convention, Articles 608 and 609 of the Colombian General Code of Procedure (Law 1564 of 2012) establish than Colombian judges shall process requests for the gathering of evidence made by foreign judicial authorities or arbitral tribunals, provided that they do not contravene Colombian public order provisions. Furthermore, the General Code of Procedure establishes the following additional requirements: (i) the request of the foreign authority shall be authenticated; (ii) the request shall be in Spanish or translated into Spanish; and (iii) the Colombian judicial authority shall inform the Public Ministry of the request for evidence and grant them a 3 working-day term to submit any comments or opinion in connection with the request. International conventions on judicial cooperation take precedence over the rules established in Articles 608 and 609 of the General Code of Procedure. Hence, the application of the aforementioned requirements should be met in the cases where the Hague Evidence Convention does not apply. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Yes, requests for gathering evidence require approval by a court and administrative body. All the requests for evidence must be filed before the Ministry of Foreign Affairs. If the Ministry considers that the request does not comply with the provisions of the Hague Evidence Convention, it may deny the request and inform its objections to the authority of the State of origin. Moreover, a Colombian judicial authority may reject the request to the extent that the execution of the request does not fall within the functions of the judiciary, whether it considers that Colombian sovereignty or security would be prejudiced thereby, or the request oppose Colombian public order provisions |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | There is no specific restriction in the Hague Evidence Convention or the General Code of Procedure as to the type of information, documents, or questions that a foreign authority may request from a Colombian judge to gather in aid of foreign litigation. Nevertheless, the information or evidence shall be gathered in accordance with Colombian law. Colombian law allows different types of evidence, including but not limited to, documents, parties’ interrogatories, witnesses, expert opinions, judicial inspections, production of documents, and confession. Please note that Colombian law does not consider depositions as evidence and, as such, there are no provisions as to the procedure or rules applicable to this type of pre-trial questioning. However, the General Code of Procedure allows the parties to jointly summon a witness for questioning and gather his/her testimony without the presence of a judge and even before any claim or petition is filed. In practice, this resource is not commonly used. Furthermore, the General Code of Procedure also allows extrajudicial statements that can be rendered before a public notary. Nevertheless, these statements will only be considered valid if the witness or party ratifies their statement before the judge presiding over the case. |
| Who bears the burden of showing whether any privileges apply? | The party that alleges the existence of privilege has the argumentative burden. For instance, if a party ordered to produce certain documents or evidence opposes the order, she must present the ground of its opposition and raise any applicable privilege. The judge will study the arguments and render a decision on the continuation of the production. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | No, the interested party does not need to prove that the information sought is allowable in the foreign jurisdiction, as the gathering of the evidence is conducted in accordance with Colombian law. However, if the person concerned by the request for evidence considers that she has a privilege or duty to refuse to give the evidence under the law of the state of origin, the request may be rejected by the judicial authority provided that the privilege or duty has been specified in the request, or, at the instance of the requested authority, has been otherwise confirmed by the requesting authority. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Colombian law does not consider depositions as evidence and, as such, there are no provisions as to the procedure or rules applicable to this type of pre-trial questioning. However, the General Code of Procedure does allow the parties to jointly summon a witness for questioning and gather his/her testimony without the presence of a judge and even before any claim or petition is filed. In practice, this resource is not commonly used. Furthermore, the General Code of Procedure also allows a party to summon a witness or a party to a future dispute to render a statement before a judge in anticipation of an eventual claim. Such testimony may be conducted remotely if the judge deems it appropriate. Finally, Colombian law also allows extrajudicial statements that can be rendered before a public notary. Nevertheless, these statements will only be considered valid if the witness or party ratifies its statement before the judge presiding over the case. Please note that extrajudicial statements before a public notary are not mandatory under Colombian law and, as such, no person or entity can be forced to render its testimony through this mechanism. The declaration before a public notary must be conducted in person. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | There is no limitation for people acting as Colombian citizens. In the case of diplomatic agents, government officials or representatives of the state or public entities limitations may apply. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Yes, no procedure or authorization is needed if they act as citizens. In the case of diplomatic agents, government officials, or representatives of the state or public entities limitations may apply. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | No, Article 608 of the General Code of Procedure established the right of foreign arbitral tribunals to submit requests to Colombian judicial authorities to gather evidence in aid of foreign arbitration. Moreover, under the Colombian Constitution arbitral tribunals are considered temporal judicial authorities. Therefore, it is plausible that a request for evidence sent by an arbitral tribunal will be granted and processed in accordance with the Hague Evidence Convention. Finally, Article 100 of the National and International Arbitration Statute (Law 1563 of 2012) establishes that international arbitral tribunals seated in Colombia may request the collaboration of judges to gather evidence in aid of arbitration, and imposes Colombian judges the obligation to process such requests. |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes, Colombian law allows the gathering of evidence in aid of foreign litigation.
Yes, Colombia is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) (Law 1282 of 2009). Colombia did not make any reservations about the treaty.
In addition to the Hague Evidence Convention, Articles 608 and 609 of the Colombian General Code of Procedure (Law 1564 of 2012) establish than Colombian judges shall process requests for the gathering of evidence made by foreign judicial authorities or arbitral tribunals, provided that they do not contravene Colombian public order provisions.
Furthermore, the General Code of Procedure establishes the following additional requirements: (i) the request of the foreign authority shall be authenticated; (ii) the request shall be in Spanish or translated into Spanish; and (iii) the Colombian judicial authority shall inform the Public Ministry of the request for evidence and grant them a 3 working-day term to submit any comments or opinion in connection with the request.
International conventions on judicial cooperation take precedence over the rules established in Articles 608 and 609 of the General Code of Procedure. Hence, the application of the aforementioned requirements should be met in the cases where the Hague Evidence Convention does not apply.
Yes, requests for gathering evidence require approval by a court and administrative body. All the requests for evidence must be filed before the Ministry of Foreign Affairs. If the Ministry considers that the request does not comply with the provisions of the Hague Evidence Convention, it may deny the request and inform its objections to the authority of the State of origin.
Moreover, a Colombian judicial authority may reject the request to the extent that the execution of the request does not fall within the functions of the judiciary, whether it considers that Colombian sovereignty or security would be prejudiced thereby, or the request oppose Colombian public order provisions
There is no specific restriction in the Hague Evidence Convention or the General Code of Procedure as to the type of information, documents, or questions that a foreign authority may request from a Colombian judge to gather in aid of foreign litigation. Nevertheless, the information or evidence shall be gathered in accordance with Colombian law.
Colombian law allows different types of evidence, including but not limited to, documents, parties’ interrogatories, witnesses, expert opinions, judicial inspections, production of documents, and confession.
Please note that Colombian law does not consider depositions as evidence and, as such, there are no provisions as to the procedure or rules applicable to this type of pre-trial questioning. However, the General Code of Procedure allows the parties to jointly summon a witness for questioning and gather his/her testimony without the presence of a judge and even before any claim or petition is filed. In practice, this resource is not commonly used.
Furthermore, the General Code of Procedure also allows extrajudicial statements that can be rendered before a public notary. Nevertheless, these statements will only be considered valid if the witness or party ratifies their statement before the judge presiding over the case.
The party that alleges the existence of privilege has the argumentative burden. For instance, if a party ordered to produce certain documents or evidence opposes the order, she must present the ground of its opposition and raise any applicable privilege. The judge will study the arguments and render a decision on the continuation of the production.
No, the interested party does not need to prove that the information sought is allowable in the foreign jurisdiction, as the gathering of the evidence is conducted in accordance with Colombian law.
However, if the person concerned by the request for evidence considers that she has a privilege or duty to refuse to give the evidence under the law of the state of origin, the request may be rejected by the judicial authority provided that the privilege or duty has been specified in the request, or, at the instance of the requested authority, has been otherwise confirmed by the requesting authority.
Colombian law does not consider depositions as evidence and, as such, there are no provisions as to the procedure or rules applicable to this type of pre-trial questioning.
However, the General Code of Procedure does allow the parties to jointly summon a witness for questioning and gather his/her testimony without the presence of a judge and even before any claim or petition is filed. In practice, this resource is not commonly used.
Furthermore, the General Code of Procedure also allows a party to summon a witness or a party to a future dispute to render a statement before a judge in anticipation of an eventual claim. Such testimony may be conducted remotely if the judge deems it appropriate.
Finally, Colombian law also allows extrajudicial statements that can be rendered before a public notary. Nevertheless, these statements will only be considered valid if the witness or party ratifies its statement before the judge presiding over the case.
Please note that extrajudicial statements before a public notary are not mandatory under Colombian law and, as such, no person or entity can be forced to render its testimony through this mechanism. The declaration before a public notary must be conducted in person.
There is no limitation for people acting as Colombian citizens. In the case of diplomatic agents, government officials or representatives of the state or public entities limitations may apply.
Yes, no procedure or authorization is needed if they act as citizens. In the case of diplomatic agents, government officials, or representatives of the state or public entities limitations may apply.
No, Article 608 of the General Code of Procedure established the right of foreign arbitral tribunals to submit requests to Colombian judicial authorities to gather evidence in aid of foreign arbitration.
Moreover, under the Colombian Constitution arbitral tribunals are considered temporal judicial authorities. Therefore, it is plausible that a request for evidence sent by an arbitral tribunal will be granted and processed in accordance with the Hague Evidence Convention.
Finally, Article 100 of the National and International Arbitration Statute (Law 1563 of 2012) establishes that international arbitral tribunals seated in Colombia may request the collaboration of judges to gather evidence in aid of arbitration, and imposes Colombian judges the obligation to process such requests.