I. The Problem
The financing of infrastructure projects and structured debt in Colombia rests on an essential legal premise: that cash flows pledged as collateral to creditors can be isolated from the debtor's insolvency risk. This premise is materialized through the figure of the autonomous patrimony (patrimonio autónomo) and, in international market terminology, translates into the concept of bankruptcy remoteness — the quality of the trust vehicle to remain immune to the insolvency effects of its settlor (fideicomitente).
Auto 2025-01-687025, dated September 26, 2025, issued by the Superintendencia de Sociedades in the context of a reorganization proceeding of a telecommunications project operator, calls this premise into question. In that ruling, the insolvency judge ordered ex officio the admission to insolvency proceedings of the autonomous patrimonies acting as direct obligors under a syndicated credit facility structured on project cash flows — and did so without establishing payment default in the trust vehicle itself.
To support this consolidation, the Superintendencia constructed a test of "operational, economic and functional unity" articulated around four elements: "(i) that the patrimony's revenues derived exclusively from government contracts executed by the settlor; (ii) that the settlor exercised substantial decisional control through the trust committee; (iii) that the patrimony fulfilled contractual obligations inherent to the project's operation; and (iv) that without the settlor's operations, the patrimony would lose its capacity to generate revenues."
The problem this decision raises is structural: these four elements are present, to a greater or lesser degree, in the majority of autonomous patrimonies used in structured finance in Colombia. Generally, these trust vehicles concentrate collections and manage payment waterfalls. If the asset segregation designed precisely to make a project bankable — or to finance the settlor's operations — becomes the argument justifying its inclusion in the settlor's insolvency proceeding, bankruptcy remoteness as understood by the market is effectively undermined.
II. The Applicable Framework
The discussion unfolds in the tension between two bodies of law that, prior to Auto 2025-01-687025, had been read harmoniously.
A. Patrimony Separation Under the Commercial Code
Auto 2025-01-687025 disregards mandatory legal provisions by reclassifying as an "operational vehicle with business activity" an autonomous patrimony structured as a guarantee trust (fiducia en garantía), without justification for that migration. The decision is therefore legally untenable and must be reviewed.
The Commercial Code recognizes that a mercantile trust (fiducia mercantil) creates an autonomous patrimony separate and independent from the estates of both the settlor and the trustee. This separation is the backbone of the instrument, developed in Articles 1226 et seq. of the Commercial Code.
The decisive rule is enshrined in Article 1238 of the Commercial Code: "assets subject to the trust agreement may not be pursued by the settlor's creditors, unless their claims predate the trust's formation." The provision further states that beneficiary's creditors may only pursue income generated by those assets, and that a trust entered into in fraud of third parties may be challenged by interested parties.
The Commercial Code's position is reinforced by the Superintendencia Financiera's Basic Legal Circular (CBJ) (Part II, Title II, Chapter I) — a mandatory regulatory instrument for trust activities that Auto 2025-01-687025 does not address. The CBJ expressly distinguishes between guarantee trusts (Section 8.4) and administration and payment trusts (Section 8.3.1), the latter being where the CBJ places "autonomous patrimonies dedicated to business activities under Article 2 of Law 1116 of 2006."
This distinction is legally decisive. The SFC, as specialized regulator of trust activity, places guarantee autonomous patrimonies in a separate regulatory category from those developing business activities under insolvency law. A guarantee autonomous patrimony is not, in the regulatory taxonomy, a business vehicle — it is a compliance mechanism.
Article 1238 of the Commercial Code, reinforced by the CBJ, serves three essential functions for bankruptcy remoteness: first, it separates trust assets from the settlor's creditors whose claims postdate the trust's formation; second, it reserves trust challenges to a fraud of third parties action — a substantive remedy, not an ex officio judicial power; and third, reinforced by the CBJ, it establishes a proper distinction between autonomous patrimonies dedicated to business activities and those serving as guarantee vehicles.
B. The Insolvency Regime for Autonomous Patrimonies Under Law 1116 of 2006
The possibility of subjecting an autonomous patrimony 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 Law 1116 of 2006 those autonomous patrimonies "dedicated to business activities." The admission requirements under Article 2.2.2.12.2 include payment default or imminent incapacity to pay (Article 9) and the conditions of Article 10(3) of Law 1116, provided the trust is not in a dissolution cause under Article 1240 of the Commercial Code.
Auto 2025-01-687025's novelty lies not in subjecting an autonomous patrimony to insolvency proceedings, but in doing so ex officio, without establishing the objective condition of Article 9 in the vehicle itself, and based on a test built on Article 15(3) of Law 1116 of 2006 and Article 2.2.2.14.1.6 of Decree 1074 of 2015.
C. The Prior Interpretive Line: The Supersociedades Previously Recognized Bankruptcy Remoteness in Project Finance
Prior to Auto 2025-01-687025, the Superintendencia de Sociedades had consistently upheld patrimony separation in project finance structures, particularly in infrastructure projects and government contract execution. Two rulings are particularly illustrative:
Auto 2019-01-075629 (Organización Suma S.A.S.). The Supersociedades held that the effects of Article 17 of Law 1116 of 2006 "are limited exclusively to assets comprising the debtor's estate," such that assets transferred to an autonomous patrimony under a trust are not reached by the settlor's insolvency regime. The court expressly noted that project finance financing differs from ordinary corporate financing, as financiers "rely on the future cash flows the project may generate, rather than the current assets or operations of the concession company."
Auto 2019-01-263153 (Recaudo Bogotá S.A.S.). In the context of the Transmilenio project, the Supersociedades recalled that "the general principle applicable to insolvency proceedings is non-interference by the judge, and non-alteration of contractual relationships in the performance of obligations." It warned that disregarding the guarantee structure between the insolvent debtor and its creditors could cause financiers to refuse to provide resources for projects in Colombia.
D. The Government Contracting Regime and the Autonomous Patrimony's Position
Auto 2025-01-687025 bases the first criterion of its test on a specific circumstance: the autonomous patrimony's revenues derived exclusively from government contracts executed by the settlor. Far from justifying the trust vehicle's concursal attraction, the government contracting regime contains a body of limits and qualifications that the decision does not address and which, properly read, lead to the opposite conclusion.
Law 80 of 1993's subjective scope is limited to contracting government entities and private contractors. The guarantee autonomous patrimony — constituted by the private contractor to serve its financing — is not a government contractor. Law 80 imposes no obligations on it, recognizes no rights in it, does not classify it as a government contract executor, and does not identify it as a subject of the regime.
The cessation of economic rights from a government contract is distinct from a contract assignment: the contractor may cede economic rights from a government contract without requiring the contracting entity's authorization, as recognized by the Council of State in Concept 1502 of July 4, 2003. The flows entering the guarantee autonomous patrimony do not convert the trust vehicle into a government contract executor — the contractor remains the sole obligor before the contracting entity.
The ex officio extension of insolvency proceedings to the autonomous patrimonies in the Azteca case therefore finds no support in Law 80 of 1993, Law 1150 of 2007, or the SFC's Basic Legal Circular — three mandatory bodies of law converging in negating the Supersociedades' conclusion.
III. Applying the Four Auto Azteca Criteria to Typical Structured Debt Structures
The true impact of Auto 2025-01-687025 is best appreciated by confronting its four "operational, economic and functional unity" elements against the trust structures that the market habitually uses in structured debt schemes. The analysis below examines two representative vehicles: (a) trust vehicles constituted as guarantee and payment sources for financing, and (b) master collection trusts (fideicomisos maestros de recaudo) that concentrate the settlor's collection flows.
A. The Four Criteria
- (i) Revenue origin: the autonomous patrimony's revenues derive exclusively from contracts executed by the settlor.
- (ii) Substantial decisional control: the settlor exercises control over the autonomous patrimony's decisions.
- (iii) Performance of operational obligations: the autonomous patrimony fulfills contractual obligations inherent to the settlor's operations.
- (iv) Functional dependence: without the settlor's operations, the autonomous patrimony would lose its capacity to receive revenues.
B. Application to Guarantee Autonomous Patrimonies
Revenue origin. By definition, flows into a guarantee autonomous patrimony derive from the settlor's underlying project or business. Under Auto 2025-01-687025's reading, this element is satisfied almost automatically in any financing that uses a guarantee autonomous patrimony.
Substantial control. The trust committee mechanism exists in certain project finance guarantee structures but is not universal across structured debt. This criterion overlooks a fundamental element: upon a settlor's default under the credit agreement, the settlor loses all decision-making authority over the guarantee autonomous patrimony and the assets transferred to it until the default is remedied. The "control" exercised by the settlor in a structured financing context is limited to debt repayment and fund movements previously agreed with creditors.
Performance of operational obligations. This is where the court's reading departs most clearly from prior line. In guarantee autonomous patrimonies, the patrimony's obligations are limited to executing the credit agreement, receiving and administering trust assets, maintaining designated accounts, and paying pursuant to the agreed priority waterfall. From our perspective, this criterion would be satisfied automatically in virtually any financing using a guarantee autonomous patrimony.
Functional dependence. This criterion is met in any guarantee autonomous patrimony: the patrimony has no autonomous economic activity; its flows derive from the settlor's operations. This dependence is precisely what bankruptcy remoteness aims to neutralize through asset segregation — even when the settlor enters reorganization or insolvency, the flows already transferred to the patrimony respond to the financiers' debt.
Read together, we consider that the settlor's control over guarantee autonomous patrimonies is the determining criterion to defeat the Supersociedades' test and ensure patrimony separation. This can be managed through explicit contractual provisions excluding the settlor from asset control until financing repayment, and by including a third-party verification agent with express control and flow dispersal authority.
C. Application to Master Collection Trusts
Master collection trusts are an equally recurring element in structured financing: they concentrate all of the settlor's project or business revenues, administer them pursuant to a payment waterfall, and distribute them among various beneficiaries (the settlor's secured creditors).
Auto 2025-01-687025's test hits these vehicles with particular intensity:
Revenue origin. By definition, the master trust receives all of the settlor's business revenues. The first criterion is met in absolute terms.
Substantial decisional control. Without a master administrator's intervention, the settlor would retain substantial decision-making capacity to instruct disbursements and manage resources from a collection autonomous patrimony.
Performance of operational obligations. Unlike guarantee autonomous patrimonies, master autonomous patrimonies are directly linked to the settlor's business operations. This increases the risk that the insolvency court reads the trust's activity as "operational execution" of the settlor.
Functional dependence. The master trust substantially loses its capacity to receive revenues if the settlor ceases operations. This functional link — inherent to project finance and structured debt logic — is automatically subsumed within the test's fourth criterion.
The aggregate effect is that, under Auto 2025-01-687025's methodology, the master collection trust becomes the paradigmatic case of "operational, economic and functional unity" with the settlor and thus a natural candidate for concursal attraction.
However, we believe the Supersociedades' test can be defeated through: (i) excluding the settlor from control over collection flows entering the master autonomous patrimony by appointing a master administrator — a third party responsible for reconciliation, identification and dispersal of collected flows; and (ii) establishing that the master autonomous patrimony is a necessary condition imposed by the settlor's creditors as part of structured financing, not an operational choice of the settlor.
D. The Patrimony Separation Issue: The Silence on Article 1238 of the Commercial Code
An additional observation is pertinent — arguably the most relevant from a bankruptcy remoteness perspective. Auto 2025-01-687025 builds its test on Article 15 of Law 1116 of 2006 and Article 2.2.2.14.1.6 of Decree 1074 of 2015, without addressing Article 1238 of the Commercial Code — the provision that substantively separates trust assets from the settlor's creditors.
The omission is not minor. Article 1238 sets the rule and its exceptions: trust patrimony assets are not pursuable by the settlor's creditors unless claims predate the trust's formation, and fraud challenges are reserved to the corresponding action. Constructing, on the insolvency judge's ex officio powers, a functional test that produces the material effect of extending the settlor's insolvency to trust assets — without pre-existing claims and without a declared simulation action — amounts to a practical displacement of Article 1238 that the ruling does not explain.
IV. Conclusion
Auto 2025-01-687025 introduces no new rule: it applies pre-existing provisions to a specific scenario. What makes the decision disruptive is the operational, economic and functional unity test, whose four elements are, by construction, compatible with the majority of guarantee autonomous patrimonies and, with particular intensity, with master collection autonomous patrimonies used in structured debt.
Given its ex officio nature, the absence of the Article 9 objective condition in the vehicle itself, and its departure from the Supersociedades' prior reading in Recaudo Bogotá and Suma, Auto 2025-01-687025 should be read, for now, as an isolated precedent subject to revision. However, the risk to structured financing in Colombia is real: asset segregation designed to isolate assets guaranteeing the settlor's obligations becomes, under the new test, evidence of functional integration with the settlor.
The decision must ultimately be reviewed in light of Article 1238 of the Commercial Code — the substantive provision that Auto 2025-01-687025 does not address and that remains the foundation of bankruptcy remoteness in Colombia. Even in the scenario where the Supersociedades' test consolidates as the prevailing position, structured financing frameworks retain defensive elements: including a master administrator in the master collection autonomous patrimony and a verification agent in guarantee autonomous patrimonies, with express control and flow dispersal authority, could operate as a contractual guarantee of bankruptcy remoteness — under that configuration, the settlor would not satisfy the substantial decisional control prerequisite, keeping the trust vehicle outside the reach of concursal 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 Colombia. Decree 410 of 1971, Commercial Code.
- Congress of Colombia. Law 80 of 1993, General Public Procurement Statute.
- Congress of Colombia. Law 1116 of 2006, Business Insolvency Regime.
- Congress of Colombia. Law 1150 of 2007.
- Council of State, Consultative Chamber. 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.
- Presidency of Colombia. Decree 1074 of 2015.
- Superintendencia de Sociedades. Auto 2019-01-075629. Reorganization of Organización Suma S.A.S. March 26, 2019.
- Superintendencia de Sociedades. Auto 2019-01-263153. Reorganization of Recaudo Bogotá S.A.S. April 2019.
- Superintendencia de Sociedades. Auto 2025-01-687025. Reorganization of Azteca Comunicaciones Colombia S.A.S. and TV Azteca Sucursal Colombia. September 26, 2025.
- Superintendencia Financiera de Colombia. Basic Legal Circular. Part II, Title II, Chapter I.
