Article 869 of the Commercial Code stipulates that "the performance of contracts made abroad and to be fulfilled within the country shall be governed by Colombian law." This signifies that our legal framework has adopted the legal principle of "lex loci solutions." Therefore, even in contracts concluded abroad, regardless of whether the parties are foreign or Colombian and whether performance occurs in Colombia, Colombian law governs.

¿So, when is it permissible to select foreign law in contracts to be executed in Colombia? To address this question, we must consider the provisions of Article 101 of Law 1563 of 2012, which enacts the National and International Arbitration Statute. This article states that "the arbitral tribunal shall decide in accordance with the rules of law chosen by the parties." Consequently, if international arbitration has been agreed upon as a mechanism for resolving contractual disputes, it is our view that selecting a law other than Colombian law would be possible.

However, for arbitration to qualify as international, certain elements of internationality in the legal transaction must be present, as outlined in Article 62 of Law 1563 of 2012. According to this provision, arbitration is deemed international when (i) the parties have domiciles in different States at the time of concluding the agreement, or (ii) the place of performance of a significant part of the obligations or the place with which the subject matter of the dispute has a closer connection is located outside the State where the parties have their domiciles, or (iii) the dispute submitted to arbitration affects the interests of international commerce.

Thus, the general rule is that contracts executed in Colombia, even if the parties are foreign, are subject to Colombian law. Nonetheless, in our opinion, it is feasible to agree on a different applicable law other than Colombian law, provided that international arbitration has been agreed upon as a means of resolving disputes.

Lastly, it should be noted that while this interpretation aligns with a significant portion of legal doctrine, we are not aware of any judicial pronouncement establishing a test for the validity of such an agreement.