Article 8 of Colombia's new arbitration law of 1989 authorizes foreign citizens to serve as arbitrators, unless the parties to the dispute are Colombians and the obligations that are the subject matter of the disputes are to be performed in Colombia. This provision replaces article 2012 of the Colombian Commercial Code of 1971 ( and article 664 of the Code of Civil Procedure of 1970), which allowed only Colombian citizens to serve as arbitrators in all disputes arbitrated in Colombia. In March of 1991, the Colombian Supreme Court, sitting en bane, unanimously held article 8 of the new arbitration statute unconstitutional.
The constitutional challenge was brought directly before the Supreme Court of Colombia pursuant to Article 214 of the Colombian Constitution, which allows any citizen to bring a "popular action of unconstitutionally." The complaint alleged that the second paragraph of Article 8 of the new arbitration law permitted foreign citizens to exercise "jurisdictional functions," while articles 2, 10, and 15 of the 1886 Constitution exclude all but Colombian citizens from serving in a public office with jurisdictional powers.