I. The Problem
The financing of infrastructure projects and structured debt in Colombia rests on an essential legal premise: that the cash flows pledged as collateral to creditors can be insulated from the bankruptcy risk of the debtor. That premise materializes through the figure of the patrimonio autónomo and, in the language of international markets, translates into the concept of bankruptcy remoteness — that is, the quality of the trust vehicle to remain immune to the bankruptcy effects of its settlor.
Order 2025-01-687025 of September 26, 2025, issued by the Superintendence of Companies within the reorganization proceeding of the operator of a telecommunications project, calls that premise into question. In that ruling, the bankruptcy judge ordered ex officio the admission into the bankruptcy proceeding of the patrimonios autónomos that acted as direct debtors under a syndicated loan structured on the project's cash flows, and did so without proving any cessation of payments in the trust vehicle itself.
To ground that linkage, the Superintendence constructed a test of "operational, economic, and functional unity" articulated around four elements: "(i) that the income of the patrimonio came exclusively from State contracts performed by the settlor; (ii) that the settlor exercised substantial decisional control through the trust committee; (iii) that the patrimonio performed contractual obligations proper to the operation of the project; and (iv) that without the settlor's operation, the patrimonio would lose its capacity to generate income."
The problem this decision raises is structural, because these four elements are present, to a greater or lesser extent, in most of the patrimonios autónomos used in structured financing in Colombia. In general, these trust vehicles concentrate the collections and administer the payment waterfall. If the asset segregation designed precisely to make the project bankable, or to finance the settlor's operation, becomes the argument that justifies its inclusion in the settlor's bankruptcy, bankruptcy remoteness, as it has been understood by the market, is called into question.
II. The Applicable Rule
The discussion unfolds in the tension between two bodies of regulation that, until Order 2025-01-687025, had been read harmoniously.
A. The asset segregation of the patrimonio autónomo in the Code of Commerce
Order 2025-01-687025 disregards binding regulatory bodies by re-characterizing as an "operational vehicle with business activity" a patrimonio autónomo structured as a collateral trust, without any justification that supports such migration. Therefore, the decision is legally untenable and must be reviewed.
The Code of Commerce recognizes that the mercantile trust gives rise to a patrimonio autónomo that is separate and independent from the estates of the settlor and the trustee. That separation is the backbone of the figure, and is developed in Articles 1226 and following of the Code of Commerce, to which the trust agreement examined in the Azteca Order expressly refers, by stating that the patrimonio autónomo is "separate and independent from the estates of the Parties."
The decisive rule, however, is enshrined in Article 1238 of the Code of Commerce. Under that provision, "the assets subject to the trust may not be pursued by the settlor's creditors, unless their claims predate the constitution thereof." The provision adds that "the beneficiary's creditors may only pursue the yields produced by such assets" and that "a trust transaction entered into in fraud of third parties may be challenged by the interested parties."
That said, the thesis of the Code of Commerce is reinforced by the legislature in other complementary regulations, such as the Circular Básica Jurídica of the Superintendence of Finance of Colombia (CBJ) (Part II, Title II, Chapter I), which is a binding regulatory instrument applicable to trust activity that Order 2025-01-687025 does not address and which, nevertheless, contains the institutional reading of the Superintendence of Finance of Colombia (SFC).
In this way, the CBJ classifies the types of trust transactions in section 8. The CBJ expressly distinguishes between the collateral trust (section 8.4), whose purpose is to secure the performance of obligations of the settlor or of third parties, and the administration-and-payment trust (section 8.3.1), a category within which the CBJ itself places "those patrimonios autónomos devoted to the carrying out of business activities referred to in Article 2 of Law 1116 of 2006."
The distinction is legally decisive. The SFC, as the specialized regulator of trust activity, places collateral patrimonios autónomos in a regulatory category that is distinct and, above all, autonomous from those patrimonios that carry out business activities under the insolvency regime. The collateral patrimonio autónomo is not, in the regulatory taxonomy, a business vehicle: it is a performance mechanism.
That said, Order 2025-01-687025 characterizes the patrimonio autónomo of the telecommunications project as an "operational vehicle of a contractual relationship with the State and with financial creditors" with "its own business activity" in the terms of Article 2.2.2.12.1 of Decree 1074 of 2015. That characterization is not offered in the decision with support in the SFC's regulatory classification, nor does it explain why a patrimonio autónomo expressly structured under the category of collateral trust should migrate, for purposes of the bankruptcy test, to the category of administration trust with business activity. The decision, in other words, is inconsistent with the regulatory classification that precisely delimits the two figures.
For all of the foregoing, it is appropriate to state that Article 1238 of the Code of Commerce, reinforced by the SFC's CBJ, performs three essential functions for bankruptcy remoteness: first, it separates the trust assets from the settlor's creditors whose claims postdate the constitution of the trust transaction. Second, it reserves the challenge to the trust to the action of fraud against third parties, which is a substantive remedy and not an ex officio power of the bankruptcy judge. That is why the exception to segregation is express and limited to a single scenario, namely, that the claim predates the constitution of the trust. And, third, reinforced by what is set forth in the CBJ, it establishes an appropriate differentiation among those patrimonios autónomos devoted to the carrying out of business activities referred to in Article 2 of Law 1116 of 2006.
For the foregoing, it is possible to conclude that Order 2025-01-687025 disregards binding regulatory bodies (the Code of Commerce and the CBJ) by re-characterizing as an "operational vehicle with business activity" a patrimonio autónomo structured as a collateral trust, without any justification that supports such migration. Therefore, the decision is legally untenable and must be reviewed.
B. The insolvency regime of patrimonios autónomos under Law 1116 of 2006 and Decree 1074 of 2015
The possibility that a patrimonio autónomo may be subject to the insolvency regime is not a judicial creation; it is expressly provided in Article 2.2.2.12.1 of Decree 1074 of 2015, which subjects to the regime of Law 1116 of 2006 those patrimonios autónomos "devoted to the carrying out of business activities." The admission requirements, under Article 2.2.2.12.2 of the same Decree, are those of Article 9 (cessation of payments or imminent inability to pay) and subsection 3 of Article 10 of Law 1116 of 2006, provided that the trust transaction is not subject to any of the grounds for termination set forth in Article 1240 of the Code of Commerce.
The novelty of Order 2025-01-687025 does not lie in subjecting a patrimonio autónomo to the insolvency regime, but in doing so ex officio, without proving the objective requirement of Article 9 of Law 1116 of 2006 in the vehicle itself, and on the basis of a test constructed upon two provisions: Article 15 of Law 1116 of 2006, in particular its subsection 3, which allows the bankruptcy judge to order ex officio the commencement of the proceeding when the economic situation of an affiliate or of a related patrimonio autónomo may compromise the viability of the joint operation, and Article 2.2.2.14.1.6 of Decree 1074 of 2015.
C. The prior line of interpretation: the Superintendence of Companies recognized bankruptcy remoteness in project finance
Before Order 2025-01-687025, the Superintendence of Companies had maintained a position consistent with asset segregation in project-finance structures, particularly within the framework of infrastructure projects and the performance of State contracts. Two prior rulings are particularly illustrative:
Order 2019-01-075629 (Organización Suma S.A.S.). The Superintendence of Companies held that the effects of Article 17 of Law 1116 of 2006 "are strictly limited to the assets that comprise the debtor's estate," such that assets transferred to a patrimonio autónomo by way of trust are not reached by the settlor's insolvency regime. The Office expressly emphasized there that financing under a project-finance scheme is different from ordinary corporate financing, since financiers "rely on the future cash flows that the project may generate, rather than on the current assets or operations of the concessionaire company."
Order 2019-01-263153 (Recaudo Bogotá S.A.S.). Within the framework of the TransMilenio project, the Superintendence of Companies recalled that "the general principle applicable to bankruptcy proceedings is the non-intrusion of the judge and the non-alteration of contractual relationships in the performance of obligations." On the basis of Article 1 of Law 1116 of 2006, it warned that disregarding the effects of the collateral structure entered into between the debtor under bankruptcy and its creditors could lead financiers to refrain from providing resources to fund projects and companies in the country.
In both rulings, the Superintendence of Companies acknowledged that, in project finance, "the entire structure of the project is built on the possibility that the cash flows enter the trust and are used in accordance with the provisions agreed between the parties in the trust agreement," and that ordering otherwise would imply depriving of effect the terms of the trust agreement under which the project's cash flows are administered.
D. What about the public-procurement regime, Law 80 of 1993, and the position of the patrimonio autónomo vis-à-vis the State contract in the Azteca Case?
Order 2025-01-687025 grounds the first criterion of its test in a specific circumstance: the income of the patrimonio autónomo came exclusively from State contracts performed by the settlor. That circumstance, far from operating as a criterion that justifies the bankruptcy attraction of the trust vehicle, finds in the public-procurement regime a body of limits and refinements that the decision does not address and which, properly read, lead to the opposite conclusion.
The subject regulated by Law 80 of 1993 is the State entity and the contractor, not the collateral patrimonio autónomo. Law 80 of 1993 governs the contractual activity of the State. Pursuant to Article 2 of Law 80 of 1993, the subjective scope of the regime is limited to State entities acting as contracting parties, and to the private contractor as their counterparty. The collateral patrimonio autónomo, which is constituted by the private contractor to serve its financing, is not a contracting party of the State. Law 80 does not impose obligations on it, does not grant it rights, does not qualify it as a performer of the State contract, and does not identify it as a subject of the regime.
The characterization in the Azteca Order, according to which the patrimonio autónomo is an "operational vehicle of a contractual relationship with the State," disregards this subjective separation. Under Law 80, the sole performer of the State contract is the contractor, which in this case is the settlor. The patrimonio autónomo does not perform the State contract: it receives the economic flows derived from its performance by the contractor. The status of "operational performer" vis-à-vis the State contract and the status of "collateral vehicle" vis-à-vis the contractor's financiers are distinct legal positions, with different regulation, different subjects, and different purposes.
Likewise, highlighting the provisions of the third paragraph of Article 41 of Law 80 of 1993, which provides that State contracts are intuitu personae and that their assignment requires prior written authorization from the contracting entity, it is possible to assert that the assignment of economic rights under the State contract (the right to receive payment) is a different matter, since it is the legal transaction that supports the collateral patrimonio autónomo and the master collection trusts in project finance. The doctrine of the Consejo de Estado and the practice of the Colombian financial market have peacefully recognized that the contractor may assign the economic rights of the State contract without requiring authorization from the contracting entity.
In summary, the legal consequence is direct: the cash flows that enter the collateral patrimonio autónomo do not turn the trust vehicle into a performer of the State contract. The contractor remains the sole party obligated to the State contracting entity; vis-à-vis the State contract, the patrimonio autónomo is an assignee of economic rights that operates under the private regime of the Code of Commerce and not under the regime of Law 80. To assert that the mere receipt of those flows generates "operational, economic, and functional unity" between the patrimonio autónomo and the contractor amounts, in practice, to disregarding the separation between contract assignment and assignment of economic rights that Law 80 itself articulates.
Subsection 5 of Article 32 of Law 80 of 1993, as amended by Article 25 of Law 1150 of 2007, governs public-trust contracts and trust mandates entered into by the State entity in the capacity of settlor. The patrimonios autónomos in project-finance structures that finance a State contractor are not trust estates constituted by the State entity: they are trust estates constituted by the contractor, in its capacity as a merchant, with the purpose of securing the obligations it incurs vis-à-vis its financiers. The regulation of Law 80 does not apply to them directly; what applies is the regime of the Code of Commerce.
The ex officio extension of the bankruptcy to the patrimonios autónomos in the Azteca Case therefore finds no support in Law 80 of 1993, in Law 1150 of 2007, or in the Circular Básica Jurídica of the Superintendence of Finance. Three bodies of binding regulation converge in negating the conclusion reached by the Superintendence of Companies.
III. Application of the Four Azteca Order Criteria to Typical Structured-Debt Structures
The true impact of Order 2025-01-687025 becomes apparent when the four elements of the "operational, economic, and functional unity" test are confronted with the trust structures that the market habitually uses in structured-debt schemes. The following analysis takes two representative vehicles: (a) trust vehicles constituted as collateral and source of payment for the financing, and (b) master collection trusts that concentrate the settlor's collection flows.
A. The four criteria
It is worth recalling the elements articulated by the Office in Order 2025-01-687025:
(i) Origin of income: the income of the patrimonio autónomo comes exclusively from contracts performed by the settlor.
(ii) Substantial decisional control: the settlor exercises control over the decisions of the patrimonio autónomo.
(iii) Performance of operational obligations: the patrimonio autónomo performs contractual obligations proper to the settlor's operation.
(iv) Functional dependency: without the settlor's operation, the patrimonio autónomo would lose its capacity to receive income.
B. Application to collateral patrimonios autónomos
Applying the four criteria:
Origin of income. By definition, the flows of a collateral patrimonio autónomo derive from the settlor's underlying project or business. Under the reading of Order 2025-01-687025, this element is met almost automatically in any financing that uses a collateral patrimonio autónomo.
Substantial control. The trust committee is a mechanism of collateral patrimonios autónomos for certain project-finance structures, but it is not the common denominator across all structured-debt cases. This criterion posed by the Superintendence of Companies omits a fundamental element of these structures: upon a settlor's default under the loan agreement, the settlor loses any power and/or decision-making capacity over the collateral patrimonio autónomo and the assets that have been transferred to it, until the default is cured.
Performance of operational obligations. This is where the Office's reading departs most clearly from the prior line. In collateral patrimonios autónomos, the patrimonio's obligations are limited to executing the loan agreement, receiving and administering the trust assets, maintaining the contemplated accounts, and making payments in accordance with the agreed priority. From our perspective, this would be a point that is automatically met in any financing that uses a collateral patrimonio autónomo as a collateral mechanism for a project or for structured financings forming part of the ordinary course of a settlor's business.
Functional dependency. This criterion is met in any collateral patrimonio autónomo: the patrimonio autónomo has no autonomous economic activity; its flow derives from the settlor's operation. It is this dependency that bankruptcy remoteness seeks to neutralize through asset segregation, so that even when the settlor enters a reorganization or insolvency proceeding, the cash flows already assigned to the patrimonio answer for the debt to its financiers.
Reading the four elements together, and pursuant to Order 2025-01-687025, we believe that the settlor's control over the collateral patrimonios autónomos is the determining criterion for dismantling the test posed by the Superintendence of Companies and ensuring the asset segregation of the assets transferred under the collateral trust. We believe this can be managed through explicit regulation in the trust agreement excluding the settlor from control of the patrimonio autónomo's assets until the repayment of the financing, and including the intervention of an impartial third party such as the verification agent, who would be in charge of managing and/or validating that the flow of resources complies with the provisions of the contract.
C. Application to the master collection trust
Master collection trusts are an equally recurrent piece in structured-financing transactions: they concentrate the totality of the project's or the settlor's business income, are administered according to a payment waterfall, and are distributed among the various beneficiaries (the settlor's secured creditors).
The test in Order 2025-01-687025, however, hits this type of vehicle with particular intensity:
Origin of income. By definition, the master trust receives the entirety of the settlor's business income. In this case, the first criterion is met in absolute terms.
Substantial decisional control. The settlor, absent the intervention of a master servicer, would retain substantial decision-making capacity to instruct disbursements and manage the resources out of a collection patrimonio autónomo.
Performance of operational obligations. Unlike the collateral patrimonio autónomo, the master patrimonio autónomo is directly tied to the operation of the settlor's business. This increases the risk that the bankruptcy office will read the trust's activity as "operational performance" by the settlor, in line with the Superintendence of Companies' reasoning in the Azteca Order.
Functional dependency. The master trust substantially loses its capacity to receive income if the settlor ceases operating its business, since the flows derive from its business. That functional link, which is consubstantial to the logic of project finance and structured debt, is automatically subsumed under the fourth criterion of the test.
The aggregate effect is that, under the methodology of Order 2025-01-687025, the master collection trust becomes the paradigmatic case of "operational, economic, and functional unity" with the settlor and, consequently, a natural candidate for bankruptcy attraction.
Nevertheless, we believe it is possible to break the test posed by the Superintendence of Companies through (i) the exclusion of the settlor from control over the collection flows entering the master patrimonio autónomo by means of the appointment of a master servicer, a third party in charge of the reconciliation, identification, and dispersion of the collected flows; and (ii) by understanding that the master patrimonio autónomo is a necessary condition imposed by the settlor's creditors within the framework of a structured financing and not an operational whim of the settlor.
D. The asset-segregation question: silence on Article 1238 of the Code of Commerce
An additional observation is pertinent, and is probably the most relevant from the perspective of bankruptcy remoteness. Order 2025-01-687025 articulates its test on Article 15 of Law 1116 of 2006 and Article 2.2.2.14.1.6 of Decree 1074 of 2015. It does not, however, address Article 1238 of the Code of Commerce, which is the provision that substantively segregates the trust assets from the settlor's creditors.
The omission is not minor. Article 1238 sets the rule and the exceptions: the assets of the patrimonio autónomo may not be pursued by the settlor's creditors unless the claim predates its constitution, and challenges based on fraud are reserved to the corresponding action. Building, upon the bankruptcy judge's ex officio powers, a functional test that produces the material effect of extending the settlor's bankruptcy to the trust assets, without the claims predating the constitution and without a declared sham-transaction action, entails a practical displacement of the rule of Article 1238 that the ruling does not explain.
The Superintendence of Companies' prior line in the Recaudo Bogotá and Suma cases, in particular, did take that segregation as the starting point to conclude that the effects of the settlor's bankruptcy do not, in principle, extend to the assets transferred to the patrimonios autónomos.
IV. Conclusion
Order 2025-01-687025 does not introduce a new rule: it applies a set of pre-existing provisions to a specific scenario. What makes the decision disruptive is the test of operational, economic, and functional unity, whose four elements are, by construction, compatible with most collateral patrimonios autónomos and, with particular intensity, with the master collection patrimonios autónomos used in structured debt.
Because of its ex officio origin, the absence of the objective requirement of Article 9 of Law 1116 of 2006 in the vehicle itself, and its distance from the Superintendence of Companies' prior reading reflected in Orders 2019-01-263153 (Recaudo Bogotá) and 2019-01-075629 (Suma), Order 2025-01-687025 should be read, for now, as an isolated precedent subject to review. The risk to structured financing in Colombia, however, exists: the asset segregation designed to isolate the assets that secure the performance of the settlor's obligations is, under the new test, evidence in the eyes of the Superintendence of Companies of functional integration with the settlor.
Ultimately, the decision must be reviewed in light of Article 1238 of the Code of Commerce, the substantive provision that Order 2025-01-687025 does not address and which remains the cornerstone of bankruptcy remoteness in Colombia. Even in a scenario where the Superintendence of Companies' test were to consolidate as the majority position, structured-financing structures retain defensive elements: the inclusion of a master servicer in the master collection patrimonio autónomo and of a verification agent in the collateral patrimonios autónomos, with express powers of control and disbursement of the flows, could operate as a contractual safeguard for bankruptcy remoteness, to the extent that under that configuration, the settlor would not satisfy the requirement of substantial decisional control over the patrimonio autónomo, and through that route the trust vehicle would fall outside the reach of bankruptcy attraction.
Bibliography
Bonilla, María Fernanda. "Bankruptcy remoteness y patrimonios autónomos empresariales: reflexiones a propósito del Auto 2025-01-687025 de la Superintendencia de Sociedades." Lexir LATAM, November 26, 2025.
Congress of the Republic of Colombia. Decree 410 of 1971, Code of Commerce.
Congress of the Republic of Colombia. Law 80 of 1993, General Statute of Public Administration Contracting.
Congress of the Republic of Colombia. Law 1116 of 2006, Corporate Insolvency Regime.
Congress of the Republic of Colombia. Law 1150 of 2007.
Council of State, Chamber of Consultation and Civil Service. Concept 1502. July 4, 2003.
Guerrero, Paola, and Juan Carlos Puentes. "Can Colombian Trusts Serve as Bankruptcy Remote Vehicles?" Emerging Markets Restructuring Journal, no. 10 (Winter 2019–2020): 1–7.
Office of the President of the Republic of Colombia. Decree 1074 of 2015.
Superintendence of Companies. Order 2019-01-075629. Reorganization proceeding of Organización Suma S.A.S. March 26, 2019.
Superintendence of Companies. Order 2019-01-263153. Reorganization proceeding of Recaudo Bogotá S.A.S. April 2019.
Superintendence of Companies. Order 2025-01-687025. Reorganization proceeding of Azteca Comunicaciones Colombia S.A.S. and TV Azteca Sucursal Colombia. September 26, 2025.
Superintendence of Finance of Colombia. Circular Básica Jurídica. Part II, Title II, Chapter I.
