For local lawyers working in the shipping and transport sector at the domestic level, the question of whether Colombia really is a Hague/Hague-Visby Rules jurisdiction has been posed on many occasions. In particular, despite the fact that Colombia has not yet properly ratified any of the existing instruments available internationally, the relevant section of the Commercial Code has supposedly been founded on the Hague Rules.
The implications of the new International Convention for the Safety of Life at Sea (SOLAS) amendment on verified gross mass have been widely discussed in the shipping industry. The concept of 'estimated weight' was recently abandoned and all interests must now collaborate to determine the 'verified gross mass' of any packed container that is to be loaded on board any ship to which Chapter IV of SOLAS applies. Resolution 2793 addresses this issue in Colombia.
Although contracts pertaining to the multimodal carriage of goods are not regulated at the international level, some jurisdictions have their own instruments which address the matter at a regional level, such as the Andean Multimodal Regime. Although case law on the application of the regime is minimal, a recent court decision recognised its mandatory nature in a case pertaining to liability under a multimodal carriage contract.
The government has issued a series of 'unified decrees' to streamline Colombia's regulatory regime – one of which concerns the labour sector. The decree collates many of the applicable rules governing employer-employee relations into a single statute. It represents a major step forward in the codification of Colombian labour law, which should hopefully make the overall business climate more conducive to investment.
A recent Supreme Court of Justice decision reiterated the labour law extraterritoriality rule. Accordingly, if a worker who was hired in Colombia is requested to work abroad temporarily or permanently and receives orders and instructions from his or her boss located in Colombia, this contract will be governed by national law and avail of the rights and benefits contained therein.
In a recent decision the Constitutional Court set down new rules and procedures for the dismissal of employees who have been involved in wrongdoing. The decision resulted from the court's examination of Article 115 of the Labour Code – which sets out the process for employers to follow in case of worker misconduct – after it was challenged as unconstitutional.
'Independent workers' perform a specific activity or carry out a particular service regularly, and derive their main source of income therefrom. They carry out such activity on their own in return for fees or commission. This definition leads to a number of obligations for an employer in relation to social security for independent workers.
The government has recently enacted a new law which obliges companies to hire workers living in municipalities where hydrocarbon production and exploration takes place. Although these changes might resolve some unemployment issues, the regulation could act as a deterrent to investment in the hydrocarbon industry.
The Constitution sets out fundamental rights such as the principle of equality and the right to free expression of personality. In the labour context, these rights serve to regulate employers' relationships with employees. However, the issue arises as to how to determine the point up to which fundamental rights can interfere with an employer's internal working rules.
The Constitutional Court has finally standardised the criteria regarding labour protection rights for pregnant employees by establishing the different ways in which this protection applies, which vary depending on the type of employment contract involved and whether the employer knew of the pregnancy. Its guidance will strengthen the protection of the fundamental rights of workers.
A new decree-law on collective bargaining where a company has multiple unions aims to restore the structure of collective labour law in Colombia. The decree-law should improve union-employer relationships, strengthen unions and facilitate peaceful and democratic collective bargaining processes that result in better collective labour agreements, to the benefit of both unions and companies.
In the labour law field, the first months of 2014 will be synonymous with modifications and structural changes, which must be understood and applied by companies in order to ensure optimum employer-employee relationships. Due to recent legislative amendments, it is important to review certain payments and contributions that affect the operation and management of payrolls and employees.
Colombia's most important free trade agreement is that signed with its main trading partner, the United States. Before ratification, the United States insisted that the agreement favoured the protection of labour rights. The purpose of including labour matters in a free trade agreement is to prevent social dumping. Thus, in pursuing economic interests, Colombia strengthened its labour laws.
The Habeas Data Law, which was passed almost one year ago, develops and guarantees a person's right to know, update and correct the information held about him or her in a database. The new law has an impact on employer-employee relationships, so all companies must start implementing it correctly in order to avoid significant penalties and guarantee their employees' fundamental constitutional rights.
The Ministry of Foreign Relations recently issued Decree-Law 834, which established a new regulation on migration. One of the most anticipated issues surrounding the new regulation was the potential easing of the procedures and requirements for obtaining temporary work visas and the removal of unnecessary red tape.
After around 10 years, the Colombian Patent and Trademark Office (CPTO) has decided to return to allowing an applicant to modify a patent application as part of the reconsideration action available to it when reviewing the application's initial rejection. Before this procedural change, a patent application could be modified only up until the CPTO issued a resolution rejecting the patent.
Recently amended competition laws charged the Superintendence of Industry and Commerce (SIC) with defining relevant markets in the financial and insurance sectors, evaluating competition levels in such markets and highlighting any discernible market failures. Consequently, the SIC will be able to recommend new regulation in order to foster competition, boost efficiency and improve consumer welfare in these sectors.
Several significant players in Colombia's energy sector have applied for approval from the Superintendence of Industry and Commerce (SIC) for key mergers or acquisitions. The SIC has been approving, objecting and conditioning mergers and acquisitions since 2001 in order to avoid concentrations of economic power in the market.
According to preliminary estimates by the Ministry of Commerce, Industry and Tourism, foreign direct investment for 2013 is expected is to be approximately $15.5 million. This figure, which exceeds the figure for 2012, is predicted to be principally focused on the oil and mining sector - and there is no indication that the wind will change any time soon. Thus, there are great opportunities in terms of mergers and acquisitions.
Mining has become a major source of growth for Colombia's economy during the last decade, and was recently designated as an engine for economic development by the government. In 2012 mining accounted for more than 23% of the country's total exports. However, many fear that 2012 marked a turning point in the mining sector's upward dynamic. But all is not lost - there is some positive news.