Procedencia de la Acción de Tutela Frente a Laudos Arbitrales en Materia Comercial en Colombia: Aspectos Positivos Y Negativos de su Aplicación

Abstract

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.