El paradigma del procesalismo en el nuevo estatuto de arbitraje nacional e internacional a la luz de los sistemas dinámicos del arbitraje internacional

Abstract

In Colombia, the new Statute of National and International Arbitration - Law 1563 of 2012, was recently issued, through which Decree 2279 of 1989 and the other norms that regulated national and international arbitration and friendly composition were repealed. With the issuance of the new Statute, the modernization of national arbitration law is sought and, of course, harmonization with international standards on the matter. It is, in general terms, a modern, flexible Statute, which embraces modern trends in this regard, and which, as is known, is inspired by the Unicitral Model Law on international commercial arbitration and by the French and Spanish arbitration laws. It maintains the dualistic system of arbitration - national and international -, the fact that it includes the use of new technologies in the arbitration process, advocates a procedure in which orality predominates, is effective, simple, consistent, in accordance with the the jurisprudential trends that the Constitutional Court has raised on the matter in recent decades and, in general, is due to the need to modernize our arbitration institutions, in order to promote foreign investment in our country, to speed up the resolution of corporate conflicts and contractual and, in addition, to cooperate in judicial decongestion in Colombia; it is, so to speak, a strategic business model for dispute resolution.

However, this research is not intended to make an apology for arbitration law or to highlight only the benefits of the legislator in this area; on the contrary, the purpose of this study is to make a dialectic, it is to debate and question many contentive aspects of arbitration law; it is to review, analyze and study the underlying gaps in it, the job, then, is to find the remaining gaps in the norm; likewise, the seminal objective is to identify the inconsistencies that the new Statute brings.

Then, and in accordance with the legal plexus under investigation, a comparative study is carried out between the proceduralist and internationalist model in Colombia, based on the chapter on international arbitration, based on the Unicitral Model Law, and in turn, contained in the same Colombian Arbitration Statute. However, this study is not limited to a mere normative comparison, but, on the contrary, transcends said work, by carrying out a hermeneutic exercise of immersion in the main guidelines of the arbitration process, based on international norms and regulations, comparative law and, of course, the doctrinal and jurisprudential development of the same Uncitral Model Law (In addition to UNCITRAL's notes on the international arbitration process).