blog posts

Funding for Conservation of Protected Areas

Over the last few years, the National Government has carried out various initiatives to consolidate the policy for the conservation of protected areas in Colombia, representing an important step forward in the protection and conservation of Colombia’s environmental heritage. The creation of the Permanence Financing Program (PFP) or fund for protected areas should be highlighted.

Tax and public finance aspects of the anticorruption law (Law 1295 of 2022)

Law 1295 entered into force in January 18 of 2022. This Law contains new measures destined to prevent and counter private and public corruption practices, protect and recover pecuniary damages caused to the public treasury, amongst other aspects that may have a direct impact to Colombian public finances.

Perception of Legal Certainty in Construction

Economists agree that for the good performance of GDP, investment growth, the healthy dynamics of employment, the behavior of inflation, the boost in exports and the other cardinal variables, the unique perceptions that the actors of the economy have are fundamental. Thus, for example, expectations about the economic conditions themselves and those of the country in general measured by the consumer confidence index (CCI), determine their willingness to make expenses and support predictions about the behavior of the demand for goods and services, consequently marking investment and entrepreneurship decisions.Economists agree that forthe good performance of GDP, investment growth, the healthy dynamics ofemployment, the behavior of inflation, the boost in exports and the othercardinal variables, the unique perceptions that the actors of the economy haveare fundamental. Thus, for example, expectations about the economic conditionsthemselves and those of the country in general measured by the consumerconfidence index (CCI), determine their willingness to make expenses andsupport predictions about the behavior of the demand for goods and services,consequently marking investment and entrepreneurship decisions.Within this line, legal certainty is basicallyunderstood as the confidence and tranquility generated by the fact that therules issued by the State and the practical application thereof by thelegitimate authorities in particular and specific cases, follow parameters ofequity, equality, uniformity, coherence and stability. From the perspective of the construction sector,legal certainty is part of the variables and circumstances that investorsusually take into account when making decisions on project promotion,construction of appreciable volumes of buildings, creation of companies,expansions, etc.An indicator that, as a result of objectiveobservation and measurement, reflects numerically the confidence that eachcountry can reasonably have on the effective respect of the rules of the game,the maintenance of its general stability and real equity, coherence anduniformity when resolving the legitimate authorities individual and concretecases, would be the so-called Legal Certainty Index (LCI), which would provide a valuable tool foreconomic analysis.According to the Forum for Studies on theAdministration of Justice (FORES)[1] there is no LCI as such,in the sense of a value that technically reflects the aforementioned elements,considering the obvious difficulty that flows from its own nature; but we caninfer the level of legal certainty of a State, taking into account political,economic and institutional factors.Amongthe latter, the Rule of Law Index of the World Justice Project (2021) is ofparticular relevance. On a scale from zero (minimum adherence to the rule oflaw) to one (maximum adherence), it ranks countries[2] comparatively as a result of eight variables: (i) constraintson government powers, (ii) absence of corruption, (iii) civil justice, (iv) opengovernment, (v) fundamental rights, (vi) order and security, (vii) criminaljustice, and (viii) regulatory enforcement. Withinthis last variable, which analyzes the impact of (i) improper influences, (ii)unreasonable delays, (iii) effective enforcement, (iv) respect for due processand (iv) compensation in expropriations, Colombia presents an index of 0.52,ranking 12th out of 32 in the region and 62nd out of 139 globally. Althoughthe correlation between adherence to the rule of law and the volume of privateinvestment has not been quantified, the rules of experience allow us toconclude that the greater the confidence in the former, the greater the volumeof the latter, as seems to be confirmed by the fact that nations such as Japan,France, Canada or Chile - with indexes closer to 1 - have proportionally thehighest levels of private investment, and that countries such as Nicaragua orBolivia - below 0.5 - suffer from significant deficits in this respect.Theclassification prepared by IESE Insight[3] provides another tool for analysis, which accordingto the degree of investment attractiveness, places Japan and France as “highlyattractive”, Bolivia in the range of those to be avoided, and Colombia as acountry of “declining interest - under observation”. In the same sense the 2017ANDI report, “Importance of Legal Certainty for Growth and Investment,”explains how the impact of legal uncertainty on decisions to invest in acompany was rated at an average of 3.38 out of 5 and refers that the Center forFinancial Stability (CFS) of the United States, in its 2012-2013 LegalCertainty Index, studied the regulation and application of law in 144 countriesfor purposes of determining the institutional and regulatory environment forinvestment promotion ranking Colombia as 75 out of 144.All these elements constitute a clear indicationthat a high LCI, would favorably and directly impact the volume of privateinvestment in the construction industry, and that our country ranks inpositions that have a wide spectrum for improvement. Regarding the housing construction industry, ourPolitical Constitution assigns to the municipalities, “within the limitsestablished by law, to supervise and control the activities related to theconstruction and sale of real estate destined for housing”. This is a veryimportant factor of the variable “regulatory enforcement” alreadymentioned, which will promote the LCI to the extent that -as it should be- thelocal regulations are harmonized in their hermeneutics and practicalapplication with the laws and jurisprudence of national scope, making thecorresponding positions in the legal pyramid prevail.In the case of Bogotá, D.C., whose economycontributes more than a quarter of the nation's GDP, decisions of a punitivenature for damages to buildings occurring after the warranty terms providedin the national rules of the Consumer Statute and the Civil Code, which donot follow the jurisprudential line of the Supreme Court or that contradictenforceable rulings of the jurisdictional authorities, seriously andunfavorably impact the LCI and consequently, the decision making of privateinvestment in the construction of housing, commerce and office spaces.With historical records of foreign direct investmentin the construction industry in Colombia of US$881 million in 2019 and US$212million so far in 2021, there is still a long way to go. However, decisions suchas the ones referred to herein do not exactly contribute to shortening it. [1] https://foresjusticia.org/wp-content/uploads/2016/02/pedro-isern-seguridad-juricc81dica.pdf[2] https://worldjusticeproject.org/sites/default/files/documents/WJP-INDEX-21.pdf[3] https://blog.iese.edu/vcpeindex/files/2021/06/report2021.pdf‍

Colombian regulation addresses ultimate beneficial owner report for tax purposes

The Colombian tax administration (DIAN) on December 27 implemented a regulation on the registration of the ultimate beneficial owner-report for tax purposes through Resolution No. 000164, which entered into force on January 15.

Bill of Law for the Creation of Environmental Courts

On August 4, 2021, statutory bill No. 196/2021, "whereby provisions for the creation of Special Environmental Courts in the Colombian State and other provisions are issued" was filed in the House of Representatives.

On the Subtraction of Forest Reserves

The Ministry of Environment and Sustainable Development recently issued a draft decree, which will include a new section to Decree 1076/2015, to establish and modify the activities, requirements and procedure for subtraction of areas of national and regional forest reserves, contained in Resolution 1526/2012.

Importance of Proper Water Resource Management in Agro-Industrial Activities

Agriculture is currently the sector that generates the greatest demand for water for the development of its productive activities. According to the United Nations - UN and the World Bank, 70% of fresh water extracted in the planet is used for irrigation of crops and livestock activities. In Colombia, these activities demand 43% of the total available water and 48% of the water used for crop irrigation is wasted as a result of factors such as inefficient use of water resources, poor maintenance of supply infrastructures, among others.

Tackling climate change from the private sector

Climate change is one of the main challenges to be faced in the coming years. To meet the goals set out in the Paris Agreement and the Sustainable Development Goals, Colombia has committed to undertake the actions and investments necessary to reduce greenhouse gas emissions by 20% by 2030.

How to Avoid Convictions in Investment Arbitration

On August 27, an Arbitration Court of the International Centre for Settlement of Investment Disputes (ICSID) ordered Colombia to pay US$21.417 billion in compensation, procedural costs and defense expenses in favor of a foreign investor. Although a greater conviction was avoided, the result of the process raises certain reflections on the actions of the Nation in these events.

Enforceability of the GDPR in Colombia, One Year Later

It is relevant for the companies in the country to have in mind the European General Data Protection Regulation (GDPR), which came into force on May 25, 2018 and which aims to protect the personal data of people who are in the states members of the European Union (EU).

Ministry of Labor and Ministry of Foreign Affairs Create Special Permit of Permanence for Labor Formalization

In view of the growing migratory phenomenon of Venezuelan citizens towards our country, the Ministry of Labor and the Ministry of Foreign Affairs issued on January 28, 2020 Decree 117/2020, which creates the Special Permit of Permanence for the Promotion of Formalization (PEPFF as per the Spanish acronym) as a transitory mechanism to regulate the migration of Venezuelans in Colombian territory, so that they may have access to fixed-term employment contracts or service agreements.

Start of the Automatic Exchange of Financial Information with Panama from 2020

The Ministry of Economy and Finance, the General Revenues Directorate (DGI) of the Republic of Panama and the National Customs and Taxes Directorate -DIAN- of the Republic of Colombia announced on March 9, 2020 that the automatic financial information exchange agreement has been signed.

Colombian Holding Companies (“CHC”) Regime Regulatio

The tax regime of the so-called Colombian Holding Companies (CHC) was introduced with the issuance of Law 1943/20181 (a rule declared unenforceable by the Constitutional Court) with the purpose of "generating jobs and growth in foreign direct investment (...)"2: The regulations in terms of CHC were resumed in the same terms of the foregoing by Law 2010/20193, which provides in that regard:

Three Years of Medical Cannabis in Colombia

3 years have passed since the issuance of Decree 613/2017, which regulated the use of cannabis for medical and scientific purposes in Colombia. It established the rules, conditions or obligations applicable to those natural or legal persons, public or private, of Colombian or foreign nationality and domiciled in the country, engaged in any of the following activities: import, export, cultivation, production, manufacturing, storage, transportation, commercialization, distribution, use of seeds, cultivation of cannabis plant, its extracts and finished products containing it.

Introducing American Fiduciary Duties of Officers and Directors in Colombian Corporate Law

In the American legal system, the direct action could be defined as the “claim brought by the shareholder in his or her own name, which cause of action belongs to the shareholder in his or her individual capacity, and that arises from an injury directly to the shareholder.” (1)

Real Estate 2018 Guide: Chambers & Partners

The editorial Chambers & Partners recently published the guide on the Colombian real estate sector, whose authors are our lawyers Juan Manuel González, Felipe Pinilla, Camilo Caycedo, and Julián Felipe Rojas. It explains the legal framework and how to do business in the Colombian real estate sector. The guide is a handy source of information, especially for foreign investors, taking into account the firm's specialized knowledge and experience in this area of practice.

Colombian Corporate Governance Rules in the OECD’s Era

Real Estate 2019 Guide: Chambers & Partners

The Real Estate guide for Colombia presents the legal framework and the way to do business in the Colombian real estate sector. In its 2019 edition, it has the participation of our lawyers Juan Manuel González, Ángela María Caicedo and Julián Rojas.

Enhancing Social Housing and Financial Inclusion

Social housing and financial inclusion have been two of the most pressing issues for the Colombian government during the last 20 years. Lack of resources, issues with the allocation of risks, problems with the generation of land for the purpose of social projects, an informal economy that is neither taxed nor monitored by any form of government, and high costs of financial services are just some of the causes of the current situation with regard to the qualitative and quantitative social housing deficit.

Doing Business in the Latinamerica & Caribbean Region, Primerus 2020

Our team was part of the last Primerus report on the legal framework for business in Colombia, Latin America and the Caribbean. See the full document here.