By Mónica Alejandra León* and Natalia Negret**, Associates, Litigation, Arbitration & Insolvency Practice, Brigard Urrutia

Colombian Law regulating alternative dispute resolution (ADR) mechanisms currently lacks specific provisions for Dispute Boards (DBs). Colombian Law regulates ADRs, and their effects are either of a jurisdictional nature, in which case the decision-making authority exercises a jurisdictional function based on the habilitation contained in article 116 of the Constitution (as is the case with arbitration), or of a contractual nature, in which case the decisions adopted have the effects of a stipulation (in the form a final settlement agreement, as is the case for amicable composition[1]) and, in most of the ADR cases, those of res judicata (as is the case with conciliation[2], mediation[3] and others).

In this entry, we will focus on roadway infrastructure agreements structured as concessions 4G and 5G. Under Colombian Law, a concession agreement is a contract in which a State entity delegates or assigns to a private party the execution of services or construction of works within the scope of the State functions[4]. In Colombia, the concession agreements of 4G and 5G are developed by the Public-Private Partnership (PPP) structure, which the private party executes the work or delivers the services, using its own resources until the good or service becomes available, while also bearing most of the risks during the construction phase.

The concession agreement for roadway infrastructure has evolved through five generations, with varying levels of implementation and sophistication, including dispute resolution mechanisms and risk distribution among the contracting parties. Since the beginning of fourth-generation projects, concessionaires have borne most of the risks associated with commercial operations, construction, and financial risks. This proliferation of disputes during the pre-construction and construction phases has led to the need for more responsive dispute resolution clauses that aim to preserve the project and prevent stoppages.

Although DBs are not recognized and regulated under Colombian Law, the parties to fourth and fifth generation (4G and 5G) roadway concession agreements have included more robust dispute resolution clauses integrating two ADRs recognized under Colombian Law: amicable composition (AC) and arbitration. These mechanisms are usually triggered by the completion of a direct negotiation phase.

The 5G concession agreements attempt to assimilate AC to DBs. To illustrate, we will discuss the following: (i) the definition of AC under Colombian Law, (ii) the evolution of dispute resolution clauses in 5G agreements compared to 4G agreements, highlighting the differences and similarities between the included AC in contrast with DBs, and (iii) the challenges of incorporating these ADRs into multi-tiered clauses under Colombian Law.

AC under Colombian Law in the context of concession agreements developed by the Public-Private Partnership structure

AC under Colombian Law differs from its use in international arbitration, where it refers to a type of adjudication in which an arbitrator decides based on general notions of fairness and equity, rather than applying the legal rules agreed by the parties (lex contractus).

In the Colombian legal system, AC is a form of ADR whereby the parties delegate to a third party (which may be plural) the power to render a binding decision in a freely disposable contractual dispute (that is, a dispute capable of being settled)[5]. The outcome must be embodied in a final written document, signed by the amicable compositors, that reflects a contractual settlement. Importantly, this document could contain orders or adjudicatory rulings in a traditional sense.

The delegation is rooted in the principle of freedom of contract. The parties to the disputes act as principals and the amicable compositors as agents, under a regulated contract which is like an agency agreement (regulated in the Colombian Civil Code as “Mandato”, articles 2142 – 2199).

As principals, the parties retain a broad discretion to determine the appropriate procedure applicable to their AC. In fact, recent 5G roadway concession agreements have sought DB features into the design of their AC mechanisms. In the absence of a specific agreement on procedure, a default rule provides that the procedural rules of the designated Arbitration and Conciliation Center shall apply.

Despite its contractual nature, the AC procedure must comply with minimum due process guarantees. The Colombian Constitutional Court has held that the parties’ rights to defense, contradiction, and equality must be preserved throughout the proceeding[6].

As a rule, decisions rendered through ADRs in infrastructure projects must be based on Colombian Law, pursuant to Article 14 of the Infrastructure Law (Law 1682 of 2013). However, AC is an exception to this rule. Article 2 of Law 1742 of 2014 expressly authorizes amicable compositors to resolve disputes either in law or in equity, thereby allowing for a more flexible resolution proper for the multi-step dispute resolution clauses.

Nonetheless, decisions rendered through AC, whether based on law or equity, are of a contractual nature and derive their binding effect from the mandate contract between the parties and the amicable compositors.

These third parties may not alter the terms of the concession agreement, nor may they address issues related to the contract’s validity, existence, or termination but they may decide on the scope or manner of fulfilling the obligations arising from the concession agreement, determine whether or not there has been a breach of the contract, and resolve disputes concerning liability between the parties, and others.

Consequently, AC decisions take the form of a settlement agreement that functions as an extension of the parties’ original contractual framework. These decisions must be unanimous -most of the time- and are binding upon execution. AC decisions do produce res judicata effects. Instead, they are subject to jurisdictional review if contested by a party.

To challenge the decision of the AC, the parties must file before an arbitral tribunal (if the contract contains an arbitration clause) or by the contentious administrative courts. A challenge must take the form of an action for annulment of the settlement agreement proving a vice which constitutes nullity, such as lack of capacity, absence of consent, defect in consent, unlawful object, or unlawful cause.

5G concessions agreements: an aim to incorporate DB features into the AC

Roadway infrastructure in Colombia has been developed in five generations of contracts (1G to 5G contracts). For this section, we will focus on the dispute resolution clauses of the last two generations: 4G and 5G, both of which have been developed within the PPP structure. Risk assignment and contractual configuration have drastically changed.

Based on the Infrastructure National Agency (ANI) repository, Colombia has 44 ongoing infrastructure projects, 10 of which are 5G (7 of them are still in the feasibility and technical evaluation phase and have not yet been awarded), while the rest (34) are 4G projects.

Upon reviewing the dispute resolution clauses contained in the contracts of the three ongoing 5G projects[7], compared to some of those of the 4G projects which are currently under construction[8], we observed a concerted effort by the drafters and negotiators of the contract in three key issues related to DB.

First, the 5G contracts reveal a clear trend toward the standardization, institutionalization, and technical enhancement of AC. This shift is reflected in more detailed clauses regulating not only the composition and scope of the amicable compositors panel but also operational aspects such as its appointment, removal, renewal, and decision-making timelines. This structured incorporation of the mechanism makes AC an integral part of the contractual model for 5G, in contrast to previous-generation contracts, where its inclusion was limited to a reactive reference prior to the arbitration.

Second, the dispute resolution clauses in the 5G contracts create coordination between the panel of amicable compositors and the contract’s active oversight. This integration provides monitoring capabilities, technical legitimacy, responsiveness, and transparency, as the AC panel is understood to be a transversal and permanent component of the contract.

Third, the clauses suggest that the ANI is promoting a standardized dispute resolution clause template for 5G contracts, particularly regarding AC as a pre-installed and permanent mechanism. This points to an institutionalized public policy of preventive and timely dispute management.

We observe a contractual effort to align the mechanism of AC, as provided under Colombian Law, with a DB, based on freedom of contract. These efforts include:

  • The AC panel remains in place throughout execution of the contract, without requiring a specific activation or trigger by a particular dispute. This permanence is critical for ensuring continuity and efficiency.
  • Procedural design reinforces its role as a prompt and ongoing resolution mechanism.
  • Their integration into the underlying project ensures a proactive and collaborative dispute management approach.

These three efforts in 5G contracts incorporate more detailed, standardized, and operational clauses aimed at ensuring the effectiveness, continuity, and transparency of the panel, elements not found to the same extent in previous generations of contracts.

From this perspective, AC, as a mechanism that had traditionally been implemented on an ad hoc basis, has become permanent under the dispute resolution clauses of the 5G contracts. In this permanence, it resembles a DB.

Moreover, both mechanisms, DBs and AC, are contractual in nature. This means that the members act as agents of the parties, and that the effects of their decisions are considered part of the contract itself.

However, AC remains limited in comparison to several features offered by DBs. First, AC is conceived as a mechanism to solve issues, whereas BDs are also aimed at preventing them from a technical standpoint.

Second, DBs allow for different modalities and types of decisions[9], such as: (i) Binding decisions that form part of the contract, unless contested by the parties (Dispute Adjudication Board);(ii) Non-binding recommendations, which are useful for reaching technical agreements that promote continued contract performance without imposing contractual obligations (Dispute Review Board); (iii) A hybrid model, which begins with a recommendation and, if accepted by the parties, becomes binding (Combined Dispute Board). Under the current Colombian legal framework for AC, the final document most closely resembles that of a Dispute Adjudication Board.

Third, DBs resolve technical issues along the contract’s execution, while AC involves, under the Colombian context, financial, technical, and legal issues, and that is why the infrastructure law mandates that at least one of the members must be a lawyer.

Fourth, the local legal culture around the AC is, in most cases, a mechanism pre-arbitration; if one of the parties does not agree with the amicable compositors’ decision, an arbitral tribunal will review it. This misconception, in practice, has reduced its effectiveness as a useful tool to prevent conflicts. In fact, recent statistics from the most important Arbitration and Conciliation Center in Colombia (Cámara de Comercio de Bogotá) indicate that only 6.5% of the cases concerning infrastructure related disputes have been resolved through AC[10].

The evolution from 4G to 5G contracts in Colombia’s roadway infrastructure sector demonstrates a clear and deliberate effort to enhance the effectiveness, efficiency, and transparency of dispute resolution mechanisms. The institutionalization, operationalization, and standardization of the AC panel represent significant advancements that align Colombian practice with international best practices and pave the way for further innovation

The challenges of multi-step dispute resolution clauses under Colombian Law

Under the principles of party autonomy and freedom of contract, the parties might agree to sophisticated multi-tiered dispute resolution clauses. However, if Colombian Law governs the dispute resolution stipulation, these clauses face legal limitations.

From a legal standpoint, Article 13 of the General Code of Procedure (CGP) prohibits contractual stipulations that make the exercise of judicial or arbitral jurisdiction contingent upon prior steps not established by law. Such stipulations are deemed void and unenforceable. This prohibition is rooted in Article 116 of the Colombian Constitution, which establishes that arbitrators exercise temporary jurisdictional functions delegated by the State. As a result, any extralegal requirement to access justice is treated as a restriction on the constitutional right to effective judicial protection.

Consequently, Article 13 of the CGP, as a procedural rule, becomes part of the lex arbitri applicable to arbitrations under Law 1563 of 2012. In this context, multi-tiered clauses, including those involving negotiation, mediation, or AC, are not binding as preconditions to initiating arbitration. A party may therefore disregard the agreed pre-arbitration steps without affecting the tribunal’s jurisdiction (pursuant to the lex arbitri, which is Colombian Law). Any contract, in the context of roadway infrastructure, executed by the Colombian State will be subject to Colombian Law under Article 2 of Law 1508 de 202 and Article 1 of Law 1682 of 2013.

Therefore, while multi-tiered clauses may remain symbolically valid (“a wave to the flag”), their enforceability, whether in domestic or foreign-seated arbitration, is significantly limited under Colombian Law. Of course, this is a topic that continues to generate debate and remains controversial.

Conclusion

The evolution of dispute resolution mechanisms in Colombian roadway concession agreements, particularly from the 4G to 5G generations, reflects a deliberate and progressive effort to enhance the effectiveness, efficiency, and transparency of conflict management in large infrastructure projects. While Colombian Law does not explicitly recognize Dispute Boards, the integration and institutionalization of Amicable Composition panels in 5G contracts demonstrate a clear alignment with international best practices. These panels, now designed as permanent and proactive mechanisms, provide technical oversight and facilitate timely dispute resolution, thereby supporting project continuity and minimizing disruptions.

Despite these advancements, certain limitations persist. The prevailing perception of AC as merely a pre-arbitration step have constrained its full potential as a preventive tool. Furthermore, Colombian procedural law imposes significant restrictions on the enforceability of multi-tiered dispute resolution clauses, limiting their function to symbolic rather than binding preconditions for arbitration.

Overall, the Colombian experience illustrates both the progress made in adapting ADR mechanisms to the needs of complex infrastructure projects and the ongoing challenges posed by the legal framework.

Continued innovation and legal reform may be required to fully realize the benefits of integrated, multi-tiered dispute resolution mechanisms in public-private partnerships. It is therefore essential, for the strengthening of Colombia’s ADR framework, to foster confidence that AC provides the parties with an effective, specialized, and expeditious means of resolving their disputes.

Article by:

Mónica Alejandra León ([email protected]) and Natalia Negret ([email protected]), Associates, Litigation, Arbitration & Insolvency Practice, Brigard Urrutia

* Senior Associate in the Litigation, Arbitration, and Insolvency practice at Brigard Urrutia. Attorney with LL.M. degrees in Procedural Law and Public-Private Partnerships. Ph.D. candidate in Law. Member of the Colombian and Ibero-American Institutes of Procedural Law. Professor and published author with extensive experience in the infrastructure sector and in dispute resolution.

** Associate in the Litigation, Arbitration, and Insolvency practice at Brigard Urrutia, with an LL.M. from Columbia University. She previously worked at an international law firm in New York City and served as a law clerk at the Colombian Constitutional Court. She currently teaches at Universidad de Los Andes Law School and is a member of Young ICCA and CEIA.

[1] Law 1563 of 2012, article 60, and Civil Code, article 2483.

[2] Law 2220 of 2022, articles 4.9 and 64.

[3] Law 2309 of 2023 (Singapore Convention on Mediation), Constitutional Court decision C-418 of 2024, and Civil Code, articles 2469 and 2483.

[4] Law 80 of 1993, article 32 and Council of State, Decision of February 9, 2007, (Rad No. 1674), C.P. Gustavo Aponte Santos.

[5] Law 1563 of 2012, article 59.

[6] Constitutional Court, ruling C-330 of 2012.

[7] Accesos Norte Fase II (Contract No. APP-001-2022); ALO Sur – Avenida Longitudinal de Occidente (Contract No. 003-2021); y PPP Nueva Malla vial del Valle del Cauca corredor: Buenaventura – Loboguerrero – Buga (Contract No. 004 de 2022).

[8] APP Autopista al Río Magdalena 2 (Contract No. APP 008-2014), Bucaramanga-Barrabermeja-Yondó (Contract No. 013-2015); Bucaramanga-Pamplona (Contract No. 002-2016); IP-Accesos Norte a Bogotá (Contract No. 001-2017).

[9] ICC Dispute Boards Rules (2018), Articles 4-6.

[10] 271 AC cases in contrast with 4153 domestic arbitration cases. Statistics avaible on: Centro de Arbitraje y Conciliación de Comercio de Bogotá: “Evolución de la amigable composición y el arbitraje en infraestructura” (2025). Available on:  Título de la presentación.

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