Maestría Derecho Contractual Público y Privado

URI permanente para esta colecciónhttp://hdl.handle.net/11634/146

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La inaplicabilidad del límite del 50% a los convenios interadministrativos colombianos
(Universidad Santo Tomás) Mosquera Pinto, Víctor Ramsés; Echeverry Botero, David Augusto; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0001359192; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0002389828; https://scholar.google.com/citations?user=KhEBh7cAAAAJ&hl=es&oi=ao; https://orcid.org/0000-0003-1893-9836
Inter-administrative agreements constitute a cooperation instrument between public entities aimed at the joint fulfillment of state purposes, differing from onerous state contracts that are subject to market rules and objective selection procedures. However, in Colombian administrative practice, there remains an interpretative controversy regarding the applicability of the limit on additions exceeding fifty percent (50%) of the initial value, established in the second paragraph of Article 40 of Law 80 of 1993. This paper analyzes whether such restriction is legally applicable to inter-administrative agreements or whether its automatic extension disregards the specific legal nature of these instruments and the constitutional principles governing administrative functions. Based on a legal-dogmatic methodology, supported by normative, jurisprudential, and doctrinal analysis, as well as selective comparative references, the study examines the ratio legis of the quantitative limitation and its coherence within the public procurement system. The study concludes that the 50% limit was designed by the legislature as a control mechanism specific to onerous state contracts, intended to preserve objective selection and prevent substantial alterations to the award conditions; therefore, it is not legally applicable in an automatic manner to inter-administrative agreements. Nevertheless, it is argued that amendments to these instruments must be subject to strict requirements of planning, justification, consistency with the contractual purpose, and oversight, in order to guarantee legality, administrative efficiency, and the protection of the public interest.
Clausula abusiva: Retencion en garantia en contratos de construcción, internacional FIDIC.
(Universidad Santo Tomás) Pantoja Ramírez, María Cecilia Pantoja Ramírez; Barajas Villareal, Viviana Beatriz; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000090884; https://orcid.org/0000-0002-4284-2412
This research addresses the problem of the widespread inclusion of the retention clause in construction contracts signed between private business parties in Colombia, despite the absence of explicit legal regulation. Although this figure is commonly used as a protection mechanism against contractual breaches, it is often applied under conditions that create imbalances detrimental to the contractor, thereby violating the principles of objective good faith and proportionality. The objective is to determine whether the retention clause can be classified as abusive, through a structural, functional, and normative legal analysis. The methodology is qualitative, using a legal-dogmatic and comparative approach, based on a documentary analysis of laws, jurisprudence, national and international doctrine (particularly Spanish law and FIDIC contracts), and a review of actual private construction contracts. The results show that this clause is often unilaterally imposed by the employer without reasonable limits or effective refund guarantees, creating an unjustified advantage in contracts that are formally symmetrical. The discussion suggests that the clause should be reviewed and regulated based on principles of equity and contractual balance, even in B2B contexts. This research provides a basis for future studies on other potentially abusive clauses in private contracting.
Implicaciones jurídicas de la sentencia c-280 de 2024 en la planeación contractual orientada a la eficiencia en los contratos de concesión de alianza públicas y privada en infraestructura vial
(Universidad Santo Tomás, 2026-01-20) Moreno Garavito, Alix Andrea; Barajas Villareal, Viviana Beatriz; Universidad Santo Tomas; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000090884; https://orcid.org/0000-0002-4284-2412
In Colombia, the development of road infrastructure has been closely linked to the Public–Private Partnership (PPP) model, which enables the private sector to participate in the financing, construction, operation, and maintenance of public projects. This contractual framework, as established by Law 1508 of 2012, has been essential for implementing large-scale projects. However, despite advances in regulation, there are still legal gaps regarding the inclusion of climate-related standards during the planning and structuring phases of the contract. This research, based on the analysis of the Constitutional Court (Judgment C-280 of 2024), emphasizes the importance of incorporating climate-change assessment into Environmental Impact Studies (EIS), even in the absence of specific regulations, and highlights the need for environmental authorities to update the Terms of Reference. It suggests that the lack of proper and preventive planning for climate risks leads to contractual deviations that negatively affect the economic efficiency of PPP contracts related to road infrastructure. The study adopts a qualitative methodology with a descriptive and analytical approach, and offers a legal reflection on the guiding principle of contractual planning as well as the environmental sustainability of the projects. In conclusion, the timely and effective incorporation of climate-related criteria is essential to ensuring contractual efficiency. Doing so helps mitigate risks and uphold the public interest in road infrastructure projects developed under the Public–Private Partnership model.
Control fiscal preventivo y concomitante: Legitimidad constitucional, garantías en tensión y eficacia en entredicho
(Universidad Santo Tomás, 2026-01-27) Duarte Benavides, Yaini Valentina; Echeverry Botero, David Augusto; Universidad Santo Tómás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0001359192; https://scholar.google.com/citations?user=KhEBh7cAAAAJ&hl=es; https://orcid.org/0000-0003-1893-9836
This article revolves around a question that, while simple in its formulation, is normatively and institutionally profound: Has the new model of fiscal oversight introduced by Legislative Act No. 04 of 2019 been effective? The point here is not to deny the value of a system of control aimed at anticipating harm, nor to question the legitimacy of the preventive tools endorsed by the reformed text, but rather to examine the extent to which that objective has translated into an operational design consistent with the structural principles of the constitutional rule of law. A critical review of Decree Law 403 of 2020—particularly the unconstitutionality of Articles 124 to 148 for seeking to establish a regime of strict liability—sheds light on a central tension: the temptation to equate the effectiveness of control with the sacrifice of guarantees. Through the analysis of recent high-impact institutional cases, it becomes evident that the warning function, far from operating as a real mechanism for risk containment, remains trapped within a weak normative framework—devoid of binding force, lacking sufficient infrastructure, and without properly specialized personnel
El vacío legal del decreto 092 del 2017 a la luz del artículo 355 de la Constitución Política sobre la contratación pública epecial con las ESAL que desconocen los principios de transparencia y eficiencia, bajo el estudio del análisis económico del derecho desde la óptica de la teoría de Richard Posner.
(Universidad Santo Tomás, 2025-12-18) Rodríguez León, Kevin Alejandro; Viviana Beatriz, Barajas Villareal; Universidad Santo Tomas; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000090884; https://orcid.org/0000-0002-4284-2412
This paper presents an in-depth study regarding Article 355 of the 1991 Constitution in light of the regulatory gap of Article 3 of Decree 092 of 2017, which aims to highlight the legal ignorance in special public contractual procedures with Non-Profit Entities (ESAL). To demonstrate the above, an analysis will be conducted of the composition of non-profit entities (ESALs) and their various contracting procedures. It will also be reviewed whether or not there is non-compliance with the principles of efficiency and transparency in these types of contracts. This latter point will be supported by the Economic Analysis of Law (EAL) framework, specifically from the perspective of Richard Posner's theory. Posner emphasizes the importance of an efficient legal structure with the constitutional objective of generating general and transparent prosperity, thereby adding greater social value. This framework should encourage greater participation in the drafting of regulations and contractual procedures for ESALs, incorporating disciplines such as economics and law into its normative structure to facilitate better and more informed decision-making. It is worth noting that the National PublicProcurement Agency – Colombia Compra Eficiente (ANCP – CCE) incorporated a guide for contracting with ESALs into the aforementioned Decree, which is currently suspended. This research aims to address the legal implications and effects of contracting with non-profit organizations (ESALs) in Colombia, given that this issue has become a current problem for foundations in this field, where the general principles of contracting, specifically those of efficiency and transparency, are completely disregarded. Therefore, to achieve this objective, the research will first focus on analyzing the special procedures for ESALs and their structure under Decree 092 of 2017, in light of Article 355 of the 1991 Constitution; second, to explain the importance of the principles of efficiency and transparency linked to the special procedures of public procurement with non-profit entities (ESALs) in order to determine their possible non-compliance; and finally, to determine, in light of the Economic Analysis of Law, more specifically under the theory of Richard Posner, whether Article 3 of Decree 092 of 2017 is efficient, given that this approach recognizes the importance of a solid legal system regarding public contracts with foundations in detail, with the purpose of developing best practices and thus attempting to improve a competent regulatory structure regarding association agreements and inter-administrative agreements with ESALs in order to maximize efficiency and avoid the waste of public resources. All of the above, from the qualitative research method, of an analytical, deductive and synthetic nature, which allowed the study of situations and cases within the context of contracting with foundations, through documentary sources and economic theories that resulted in the conclusion that the rules established in Decree 092 of 2017 in accordance with Article 355 of the Political Constitution do not respond to efficiency criteria because their rules do not generate a necessary incentive to guarantee the contracting of these entities in terms ofefficiency and transparency.
La ineficiencia contractual en la agencia comercial frente a la coexistencia con ventas directas del empresario a través de entornos digitales
(Universidad Santo Tomás, 2025-09-28) Saavedra Martínez, Cristian Giovanni; Barajas Villareal, Viviana Beatriz; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000090884; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0001695512; https://orcid.org/0000-0002-4284-2412
This article analyzes the contractual inefficiency of the commercial agency contract in light of its coexistence with the entrepreneur’s direct sales through digital environments, from the perspective of the Economic Analysis of Law (EAL), with the aim of proposing mechanisms that ensure the economic balance and sustainability of the contract. The methodology applied was qualitative and analytical, based on a comparative study of legal sources and doctrinal analysis regarding the function and evolution of the commercial agency contract. In addition, the Economic Analysis of Law approach was integrated as a tool to evaluate the efficiency of current regulation and its implications for the behavior of economic agents. The findings show that digital commerce has generated contractual inefficiency in the commercial agency, by allowing the entrepreneur to evade remuneration obligations, thereby weakening the agent’s position and creating a structural economic imbalance. In conclusion, the study highlights the need to adopt regulatory and contractual mechanisms that recognize the transformations of the digital market and strengthen the protection of the agent, ensuring the validity of the essential principles of the contract and its sustainability in the current environment.
Determinación de la Jurisdicción Competente para Conocer de los Conflictos Derivados de los Contratos Suscritos por el “Fondo Colombia en Paz”.
(Universidad Santo Tomás, 2025-07-21) Oyola Bolívar, Adriana Patricia; Blanco, Carolina; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000067215; https://orcid.org/0000-0001-5916-7217
Abstract: This proposal aims to highlight a problem corresponding to a regulatory vacuum that originates from the creation of the Colombia in Peace Fund (FCP) through Decree 691 of 2017, issued by the Administrative Department of the Presidency of the Republic, in what is related to the indeterminacy of the jurisdictional jurisdiction to hear litigation arising from the Fund's contracts, governed by private law, but the resources that are administered are public, so an antinomy arises to determine the jurisdiction of the judges competent to deal with these matters. From the foregoing, the question arises: What is the jurisdiction to hear and resolve any disputes arising from the contract signed by the Colombia in Peace Fund? and therefore the objective is to establish a specific legal position regarding the determination of the jurisdictional competence to hear and resolve any disputes arising from the contract signed by the FCP. In response to this question, it can be affirmed that this problem supposes that in the events in which it is determined that the competent jurisdiction to hear these litigations is the private one, a scenario would arise in which the judges and courts designated for civil matters would resolve conflicts. derived from contracts entered into with public resources; while, if the contentious-administrative jurisdiction is the competent one, it would assume the knowledge of litigation in which the parties in conflict would be subjects regulated by private law, while Decree 691 of 2017 provides that autonomous estates formed to execute and contract with the resources of the Colombia in Peace Fund are of this nature. The relevance of this legal problem is evidenced in the contradictory positions outlined by some courts of our jurisdiction on this matter, in similar contractual schemes, such as that of social interest housing regulated in Law 1537 of 2012. KEY WORDS: Colombia in Peace Fund, contracts, exceptional regime, competent jurisdiction.
Del Primer Pacto con Adán Como Contrato Entre El Hombre y la Naturaleza
(Universidad Santo Tomás, 2025-06-20) Pineda Medina, Hernán Felipe; Echeverry Botero, David Augusto; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0001359192; https://scholar.google.com/citations?user=KhEBh7cAAAAJ&hl=es&oi=ao; https://orcid.org/0000-0003-1893-9836
The objective of this article is to analyze the First Covenant between God and Man, and the Contracts that originated from it within the Bible, focusing specifically on Nature, which includes animals, reviewing their obligations, the contractual object of goods, and comparing them with Colombian Contract Law. This aims to establish the contractual obligations of anyone who, through Faith, believes in the Bible, regardless of the religious denomination they profess. The development of this article will be divided into three chapters. The first concerns the Covenant of God with Adam, "The First Man," in the Bible, explaining how the covenant developed, related to Nature and Animals within the Biblical context. The second chapter presents an analysis through Colombian legislation to draw a parallel between environmental and animal protection in Colombia. The third chapter is a comparative analysis between the two preceding chapters. This analysis is based on the Reina Valera version of the Bible, which includes 66 books from Genesis to Revelation. The Pentateuch, consisting of the first five books—Genesis, Exodus, Leviticus, Numbers, and Deuteronomy—serves as the foundational texts for the Torah and the Quran, thus adhering to the Old Covenant, which is binding for these two major religions. This article will also highlight the significant differences among these three religions and their impact on the world order and understanding of God's Law. Being a believer, or professing any of the religions whose doctrine is based on the Bible, makes adherence to its teachings binding. This means that neglecting the obligations arising from the covenants and contracts distorts the very essence of God, allowing individuals to take verses and promises out of context, manipulating or using them to justify their sins
Impacto del Acuerdo Marco de Precios en la Eficiencia del Gasto Público
(Universidad Santo Tomás, 2025-06-20) Ospina Moreno, Cindy Daniela; Echeverry Botero, David; Universidad Santo Tomas; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0001359192; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0001695491; https://scholar.google.com/citations?user=KhEBh7cAAAAJ&hl=es&oi=ao; https://scholar.google.com/citations?user=KhEBh7cAAAAJ&hl=es&oi=ao; https://orcid.org/0000-0003-1893-9836; https://orcid.org/0000-0001-5698-2638
The Framework Price Agreement is an instrument used to aggregate demand, constituted as a mechanism through which the contractor selection modality corresponding to the abbreviated selection is implemented, especially to acquire goods and services that have “uniform and non-uniform technical characteristics”, whose use is common, which was created by Law 1150 of 2007 and was subsequently regulated by Decree 1082 issued in 2015. However, it is important to analyze the impact of these agreements on the management of state assets, therefore, through this article we intend to determine the efficiency in terms of the application of the AMP in the contractual processes carried out by state entities in Colombia, with respect to the reduction of costs for state entities, in relation to the prices available in the market. Therefore, through the content of this article, a preliminary analysis of the Framework Price Agreement is carried out, using the qualitative method, under the development of three chapters, the first one focuses on identifying the origin, concept, characteristics and conditions of application of the same as a mechanism used to acquire goods and services in the field of public procurement. In turn, in the second chapter, a legal analysis of the AMP is developed, especially with respect to the mandatory nature of its implementation as of Law 1150 of 2007; finally, the third chapter refers to the economic impact of the Framework Price Agreement on Public Procurement, mainly with respect to the efficiency of public spending.
Utilización de la Teoría de la Minimización del Estado para la Mejora del Sistema de Contratación Pública en Colombia
(Universidad Santo Tomás, 2022-08-19) Ordoñez Zuluaga, Angela María; Martinez Salcedo, Juan Carlos; Universidad Santo Tomas; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0001509425; https://scholar.google.com/citations?hl=es&user=DSXGAhUAAAAJ; https://orcid.org/0000-0003-1417-088X
The present text seeks to explain how the liberal theories of minimization of the presence of the State, without viable to be used according to the liberal tendency of the 1991 Constitution, seeking in that sense to move away from the interventionist tendency, which under the myth of social justice , in reality what it causes is problems at the social and economic level, having state contracting as a material hand, of which there is evidence that it becomes increasingly inefficient, applying these theories specifically to the privatization of public contracting, private initiative as contractual typology and minimization of public spending.
El contrato de prestación de servicios, contrato realidad y la eficiencia del control fiscal en Colombia
(Universidad Santo Tomás, 2024) Espeleta Guerrero, José Ángel; Universidad Santo Tomás
The waste of resources due to the use and abuse of the modality of linkage by contract for the provision of services, has resulted in true parallel payrolls in public sector entities, generating patrimonial damages to State entities due to the demands presented by contractors for compliance with the schedule, subordination and remuneration, cases in which many Judges of the Republic end up condemning the State for configuring the three elements of the employment contract, which is far from the raison d'être of the contract for the provision of services, leading to what is has been known as a reality contract, affecting the fundamentals of the contract in its principles of equality, in terms of its recognition as a legal transaction with an economic content, which from the fiscal point of view requires greater attention and control. The objective of the article is to analyze fiscal control against contracts for the provision of services, within the Public Administration to avoid, prevent, penalize or dissuade the configuration of the contract in reality, in public entities in light of the law and jurisprudence. . For this purpose, the method used is legal research with a documentary technique that allows the approach of the different reports, audits, jurisprudential and doctrinal pronouncements, elements that serve to know the scope of the contract reality in Colombian contractual legislation. It is concluded that a deficient fiscal control persists for the Colombian State in the face of the interaction that emerges from the contract for the provision of services, labor contract and reality contract.
Perspectivas Claras y Ambigüedades: El Decreto 092 de 2017 en los Convenios de Colaboración Público-Sin Ánimo de Lucro
(Universidad Santo Tomás, 2024-02-02) Diaz Gil, Roxana Paola; Yong Serrano, Samuel; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0001373973; https://scholar.google.com/citations?hl=es&user=btf1nk4AAAAJ; https://orcid.org/0000-0002-0310-8573
This article critically examines Decree 092 of 2017 in Colombia, which regulates collaboration agreements between the public sector and non-profit entities (NPOs). Focusing on clearly distinguishing between collaboration agreements and state contracts, the research highlights their legal and administrative implications. Ambiguities and legal gaps in the application of the decree are explored, proposing solutions to overcome these challenges. Comparison with other decrees, such as Decree 777 of 1992, emphasizes differences and similarities. Relevant judicial cases and opinions from administrative law experts are examined to assess the impact of this regulation. It is emphasized that, although collaboration agreements are not considered state contracts, they must comply with state contracting principles to ensure transparency and legality in their execution. This study addresses the persistent issue in Colombian public procurement marked by confusion between collaboration agreements and state contracts, exacerbated by ambiguities in the application of Decree 092 of 2017. The response to this problem materializes in research that seeks to deepen the understanding of this decree, analyzing its essential elements, impacts, ambiguities, and legal gaps, and proposing solutions to strengthen its application. Therefore, the general objective of this work is to examine and defend Decree 092, clearly differentiating between collaboration agreements and state contracts, while identifying ambiguities and legal gaps and proposing solutions to improve its effectiveness. To achieve this purpose, specific objectives are set, such as exploring the key difference between agreements and contracts, identifying, and analyzing ambiguities and legal gaps, comparing the regulation with related regulations, assessing the impact on promoting cooperation and administrative efficiency, and proposing concrete solutions. The research highlights the benefits of Decree 092, such as administrative agility and the promotion of effective collaboration. Concrete examples illustrate its application and positive results. The hypothesis suggests that Decree 092 has contributed to greater clarity in differentiating between collaboration and association agreements, establishing specific and advantageous guidelines for the former, despite certain ambiguities and legal gaps. The article begins by reviewing historical and normative backgrounds of collaboration between the state and individuals. It then examines in detail the definitions of "contract" and "agreement" in the context of Colombian public procurement, highlighting their equivalence according to legislation. The methodology selected to carry out this study involves a thorough review of current regulations, a detailed analysis of relevant judicial cases, and consultation of opinions from administrative law experts. This comprehensive approach will allow for a deep understanding of the legal and practical aspects related to Decree 092, contributing to clarifying and strengthening the application of this regulation in the context of Colombian public procurement. In conclusion, a profound analysis of Decree 092 is carried out, highlighting positive aspects, and identifying gaps and limitations. The main focus is on highlighting how a proper differentiation between collaboration and association agreements can promote efficient cooperation between the public sector and NPOs. While acknowledging the need to clarify certain aspects of the decree and strengthen it, arguments are made in favor of its proper implementation to enhance relations between both parties.
El Contrato Atípico de Concesión de Espacio Comercial Desde las Practicas de Diferentes Comerciantes
(Universidad Santo Tomás, 2023-09-13) González Martínez, Manuel Alejandro; Báez Mesa, Dacmar Andrea; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000136020; https://orcid.org/0000-0003-1669-1419
This article presents a descriptive analysis about the concession contract of commercial space that is looking to develop and implement legal mechanisms and paralegal ways that are directed to define the criteria and concepts which are used for the formation of this atypical contract based on the anti formalism and social typicality and is also looking to define criteria that avoids the incorporation of concepts that look to alter this concession contract of commercial space making it assimilable to other types of contracts.
Reconocimiento de las Acciones al Portador en la Sociedad por Acciones Simplificadas en Colombia: Legalidad, Conveniencia y Efectos
(Universidad Santo Tomás, 2023-08-23) Medina Noriega, Emilio José; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0001579533; https://orcid.org/0000-0003-3551-8646
The recognition of the issuance of bearer shares by anonymous companies has been a focus of discussion due to the positions taken in the Cartagena Agreements that dissociate it, despite the fact that Article 377 of the Commercial Code of Colombia allows to open the discussion about its possible validity in public limited companies in the country. Likewise, on Simplified Joint Stock Companies, framed its recognition in Law 1258 of 2008 responds to the need to establish greater flexibility in existing commercial companies in Colombia. This was very well received due to the importance of generating cost reductions in procedures and obligations of shareholders, so it is shown as the leading legal figure of the investigation. It is relevant to pay attention to the problems related to the possibility of issuing bearer shares, so attention is paid to the recognition of bearer shares in simplified shares in Colombia, taking into account their effects and convenience for companies by shares, following the legal and constitutional norms.
Procedencia de la Acción de Tutela Frente a Laudos Arbitrales en Materia Comercial en Colombia: Aspectos Positivos Y Negativos de su Aplicación
(Universidad Santo Tomás, 2023-08-22) Peña Garzón, Claudia Piedad; Tarazona Manrique, Ivan Dario; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000133563; https://scholar.google.com/citations?hl=es&user=Oy6O5NMAAAAJ
Commercial arbitration is intended as a prompt and effective option in the search for legal certainty, in attention to the interests of commerce. However, it cannot be understood that arbitration, despite its dispositive nature, implies the possibility of going against the constitutional guarantees and the Colombian legal system, hence the origin of the protection action against arbitral awards. Such origin, exceptional, applies if it is due process violations or de facto routes. Although, when the advantages and disadvantages of said exception are weighed, from the point of view of the economic interest that emerges from commercial arbitration, it seems that protection becomes an aspect that goes against efficiency, competition, and the interest of commerce, when used as a mechanism to delay the process, rather than to protect a fundamental right. For this reason, some alternatives are proposed that can be considered so that this is valued due to the nature of the conflicting interests, and not from the point of view of non-merchant citizens. For this, we set ourselves the general objective of identifying, in accordance with the legal nature of arbitration and the Colombian legal system, in which cases the protection action would proceed against arbitration awards in commercial matters and the benefits and damages that could be caused with said procedure in absolute terms; and as specific objectives to identify the legal nature of arbitration in commercial matters; Determine the cases of origin of the tutela action against commercial arbitration awards; Develop the deficiencies and strengths of the causes of origin of the guardianship against arbitral awards; propose alternative solutions to the deficiencies that may arise.
Repercusiones de la Delimitación del Mercado Relevante en Acuerdos Anticompetitivos por Objeto en Licitaciones Públicas.
(Universidad Santo Tomás, 2023-08-22) Florez Duran, Andres Felipe; Echeverry Botero, David Augusto; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0001359192; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0001912820; https://orcid.org/0000-0003-1893-9836
This legal study focuses on the application and interpretation of norms related to anti-competitive agreements by object in public tenders. Through a compilation of doctrinal information and analysis of cases, descriptive, deductive, and comparative methods are used to achieve a coherent conclusion that supports the proposed hypothesis and fulfills the general objective. In the context of investigations conducted by the Superintendence of Industry and Commerce (SIC) regarding anti-competitive conduct in public tenders, it is essential to define the relevant market. This delimitation implies establishing both the product or group of products and the specific geographical area in which the effectiveness and suitability of anti-competitive conduct will be examined. Thus, in the case of public tenders, the delimitation of the relevant market is based on the conditions stipulated in the bidding terms, such as the object, budget, location, and execution period. However, this study argues that this delimitation also involves considering the subjective qualities of the market agents involved, such as their financial, legal, technical capacity, and other enabling requirements or scoring criteria established in the selection process, which could be affected by anti-competitive agreements. Therefore, it is necessary to analyze whether the inclusion of the qualities and abilities of market agents is permissible when delimiting the relevant market in investigations of anti-competitive agreements by object in public tenders. If such a thesis is not admissible, sanctions could be imposed on the investigated parties, who would be barred from participating in the allegedly affected market. In this regard, an accusation demonstrating the existence of an anti-competitive agreement whose object is collusion in tenders or the distribution of contract awards must consider the implications of the limitation of the relevant market and its relationship with the qualities of market agents.
Tensiones entre el acceso a la información pública y la protección de datos personales en la contratación pública con persona natural.
(Universidad Santo Tomás, 2018-08-16) Peña Moreno, Carlos Andrés; Lozano Villegas, German; Universidad Santo Tomás
This article is the product of a legal investigation that seeks to analyze the development of the right to data protection and access to public information within the framework of transparency in government procurement, in the form of service provision with a natural person. The investigation focused on the following sources of information: a. The legal norms b. The jurisprudence. c. The legal doctrine. d. Foreign doctrine and e. Foreign legislation. The research is developed through the characterization of access to public information and data protection in Colombia. Subsequently the research identifies the tension scenarios of personal data protection rules and access to public information, to finally highlight the tensions generated in the legal practice in the state contracting processes in the form of service provision with natural person. For these purposes, the analysis begins from the Political Constitution of 1991, which develops the right to information from two edges; as the right to the protection of personal data and as the right to access public information. The aforementioned rights deploy the duty of the Colombian State to guarantee privacy in the area of personal data and to make public information transparent. With the issuance in Colombia of Law 1712 of 2014 known as the Transparency Law, challenges for the administration are unleashed against the legal and constitutional guarantees that allow them to crystallize their actions, a duty that of course was not alien to government contracting and that for the present investigation affect the modality of rendering services with a natural person. Since different tensions are identified within the Colombian legal system, because on the one hand the personal information of the contractors that provide services to the state must be protected and on the other hand, access to public information must be guaranteed to those administrated who perform control. Under this premise there is evidence of the need to answer the question: How the right to access public information and the protection of personal data is developed under the modality of contract for the provision of services with a natural person in Colombia within the framework of transparency in government procurement? Fort the response, this article will develop the existence of tensions between the right to access public information and the protection of personal data and stablish guidelines to overcome them.
El deber de información aplicado a la protección de los consumidores de medicamentos
(Universidad Santo Tomás, 2023-01-30) Fonseca Castro, Paola del Pilar; Morales Sánchez, Diego Hernán; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000178484; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0001339666; https://scholar.google.com/citations?hl=es&user=mG1THUIAAAAJ; https://orcid.org/0000-0002-5945-2250
Doing the dogmatic study of the institutions of the duty of information in consumer law and in particular, the principle of product safety, the objective of analyzing the duty of information to drug consumers in Colombia was raised. The foregoing, in order to propose alternatives to the identified problem of lack of information for drug consumers; finding that it is possible to comply with this duty, under the implementation of communication strategies and the application of recommendations of the World Health Organization (WHO), against the fulfillment of the duty of information for these very special consumers.
La Previsión y control del riesgo financiero en los contratos de concesión de obra pública y en asociaciones público privadas para la generación de infraestructura en el sector transporte en Colombia
(Universidad Santo Tomás, 2022-12-06) Alba Martínez, Michael Alejandro; Barreto Ferro, Gabriel; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0001505743; https://scholar.google.com/citations?hl=es&user=MRpWApAAAAAJ; https://orcid.org/0000-0002-9477-100
The purpose of this research article is to demonstrate the existence of a regulation present in Colombian public law in charge of controlling and mitigating the financial risk in the concession regime of public works in the road sector. In this way, an analysis of the most important laws that have regulated the concession regime of public works in the road sector will be carried out in order to demonstrate that there is a solid public policy that has led to the implementation of a coherent strategy as a result of experience. and the evolution for the control of this type of contractual risks, a policy that has become evident not only in traditional laws of public contracting but has also been present in the same law of public-private associations. In the same way, in addition to studying what the aforementioned policy has consisted of, its most important evolution will also be studied, which consists of revealing the financial instruments that have been legally instrumentalized for the control of this type of contractual risk, for this reason this investigation will strive in presenting the advances in the law of public-private associations in this matter and will analyze how innovative international strategies such as Project Finance have come to the country to encourage private investment in concession projects, to also configure a contractual risk management strategy. that impacts the traditional model foreseen in the concession of public works and that in turn redefines the traditional role of the parties that intervene in this type of contracts, especially in the concessions of 4 and 5 generation of road concessions, which will be developed under the public-private partnership scheme.

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