24. Please provide a list of any articles or books that discuss this country’s investment treaties.
José Antonio Rivas, ‘Colombia’, in Chester Brown (ed.), Commentaries on Selected Model Investment Treaties (2013).
Hernando Otero, Enrique Gómez-Pinzón, ‘Colombia’, in Jonathan C. Hamilton, Omar E. García-Bolivar, Hernando Otero (eds.), Latin American Investment Protections: Comparative Perspectives on Laws, Treaties, and Disputes for Investors, States, and Counsel (2012).
1 The answer ‘Yes’ indicates that the treaty expressly grants an investor the right to bring a dispute under the treaty before local courts, while the answer ‘No’ indicates that the right to submit a claim before local courts is not expressly included in the treaty. For instance, the Colombia-BLEU BIT provides that the dispute may be submitted either to the competent jurisdiction of the Contracting Party or to domestic or international arbitration.
2 Investment Cooperation and Facilitation Agreement between the Republic of Colombia and the Federal Republic of Brazil. The Brazil-Colombia Treaty is referred to throughout the text as the ‘Brazil BIT’.
3 While the Brazil-Colombia treaty does not include a fair and equitable treatment clause, it provides protection against denial of justice and due process violations.
4 The Parties did not provide for investor-State arbitration in the Colombia-Brazil treaty. However, they agreed to a state-state dispute resolution mechanism covering disputes that affect investors. The Parties must first submit these matters to the Joint Committee before initiating arbitration.
5 The Switzerland BIT does not explicitly provide for ‘full protection and security’ nor for ‘protection and security’, but it does include a provision whereby ‘[e]ach Party shall protect within its territory investments made in accordance with its laws and regulations by investors of the other Party and shall not impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment, extension, sale and, should it so happen, liquidation of such investments’. This provision has been included in certain Colombian BITs, which also expressly provide for ‘full protection and security’ (eg, the UK and India BITs). Some tribunals have interpreted a similar provision including the terms ‘shall protect’, comparing it with other protection and security provisions in different treaties (Suez, Sociedad General de Aguas de Barcelona SA, and Vivendi Universal SA v Argentine Republic, ICSID Case No. ARB/03/19, Decision on Liability of 30 July 2010, ¶¶ 158-159) or concluding that there is an overlap between the protection granted under such a provision and a ‘full protection and security’ clause (Toto Costruzioni Generali S.p.A. v. The Republic of Lebanon, ICSID Case No. ARB/07/12, Award of 7 June 2012, ¶ 171).
6 See footnote 1 above.
7 The Canada FTA provides that consultations shall be held within 30 days of the submission of the notice of intent, unless the parties agree otherwise. Under the treaty, an investor may submit a claim to arbitration if at least 6 months have elapsed since the events giving rise to the claim and if the investor has delivered a notice of intent at least six months before submitting the claim.
8 The Chile FTA provides that an investor may submit a claim to arbitration provided six months have passed since the measures giving rise to the claim, and 180 days after it had presented the notice of intent.
9 The Costa Rica FTA requires the investor to deliver its notice of intent at least 90 days before submitting any claim to arbitration.
10 Under the treaty, the investor shall deliver its notice of intent at least 90 days before submitting any claim to arbitration.
11 Under the Mexico FTA, an investor may submit a claim to arbitration provided 90 days have elapsed since it presented a communication to the state party informing of such a claim, and provided six months have passed since the measures giving rise to the claim.
12 The investor shall deliver its notice of intent at least 90 days before submitting any claim to arbitration.
13 The treaty provides for treatment according to customary international law, including fair and equitable treatment and full protection and security.
14 The Panama BIT provides that consultations between the parties shall be carried out for at least three months, and that an investor may submit a claim to arbitration provided 9 months have elapsed since the events giving rise to the claim. Also, the investor shall deliver its notice of intent at least 180 days before submitting any claim to arbitration.
15 The Korea FTA also adds that a claimant may only submit a claim to arbitration if the claimant has delivered to the respondent a notice of intent at least 90 days before the claim to arbitration is submitted.
16 Under the U.S. FTA, an investor may submit a claim to arbitration provided six months have elapsed since the events giving rise to the claim. Also, the investor shall deliver its notice of intent at least 90 days before submitting any claim to arbitration.
17 The Switzerland BIT uses the expression ‘real business activities’, instead of ‘substantial business activities’.
18 The Spain BIT only refers to ‘effective’ nationality.
19 These IIAs are the China, BLEU, India, Singapore, Turkey and Korea BITs and the Chile, Northern Triangle and Panama FTAs. Certain IIAs only require that there be one of these characteristics of an investment, by replacing the word ‘and’ for ‘or’ (US, Korea and Costa Rica FTAs and the Peru and Japan BIT).
20 These IIAs include the Peru, China, BLEU, India, UK, Korea, Singapore, Turkey, Brazil and France BITs and the Northern Triangle, Israel, Panama and Costa Rica FTAs. Regarding claims to money, the Spain and Switzerland BITs only exclude such claims that arise solely from credits in connection with a commercial transaction with a maturity date of less than three years. The Japan BIT applies the same standard for credits with a maturity date of less than 12 months. Although under the Korea FTA, an investment does not mean a public debt operation, public debt operations are subject to National Treatment and Most Favoured Nation Treatment.
21 These treaties include the Peru, UK, Korea, Japan and Singapore BIT and the Chile, Northern Triangle, U.S., Korea, Pacific Alliance and Costa Rica FTAs. The BLEU BIT includes economic assets that, directly or indirectly, have been invested and reinvested by investors.
22 These IIAs are the Peru, BLEU, UK, Korea, Singapore and Korea BITs and the Chile, Northern Triangle, US, Korea, Costa Rica, Pacific Alliance and Panama FTAs. The China BIT refers to the obligation not to deny justice in judicial proceedings ‘in accordance with the general accepted principles of customary international law’, while the France, Japan, Turkey and India BITs and the Canada FTA make reference to the ‘principle of due process’ without further qualifying the concept. The Japan BIT also states that FET includes access to courts.
23 The Korea BIT refers to ‘disproportionate’ or discriminatory measures.
24 Treaties which use this or similar formulas (which make reference either to the minimum standard of treatment, to customary international law or to international law) include the Peru, China, BLEU, Chile, UK, Singapore, Japan, Turkey and Korea BITs and the Chile, Northern Triangle, US, Canada, Costa Rica, Panama, Pacific Alliance and Korea FTAs.
25 These include the Peru, Korea and Singapore BITs and the Chile, Northern Triangle, US, Korea, Costa Rica, Pacific Alliance and Panama FTAs.
26 These include the Peru and Singapore BITs and the Chile, US, Canada, Pacific Alliance and Korea FTAs.
27 These include the Peru, China, BLEU, India, UK, Korea, Japan, Singapore, France and Turkey BITs and the Chile, Northern Triangle, US, Canada, Korea, Costa Rica, Panama and Israel FTAs.
28 Some treaties also qualify these ‘circumstances’ with wording similar to the following: ‘where those actions are so severe that they cannot be reasonably viewed as having been adopted and applied in good faith’ (see, eg, the India, Korea, BLEU and China BITs and the Costa Rica, Panama, Northern Triangle and Canada FTAs) or ‘where an action or a series of actions is extremely disproportionate in light of its purpose and effect’ (the Korea FTA).
29 These include the Peru, China, BLEU, India, Korea, Japan, Singapore, France and Turkey BITs and the Chile, Northern Triangle, US, Canada, Korea, Costa Rica, Panama, Pacific Alliance and Israel FTAs.
30 Many IIAs qualify these expectations as ‘reasonable and distinct expectations’, while certain treaties also speak of ‘investment-backed expectations.’
31 The China BIT refers to ‘domestic legal procedure’ and ‘respecting due process’, while the India BIT uses the terms ‘in accordance with the law’, the Korea BIT refers to ‘principle of due process of law embodied in the principal legal systems of the world’ and the Mexico FET to the ‘principle of legality’.
32 For instance, in the Japan BIT, the MFN clause applies with respect to investment activities, and in the BLEU BIT it applies in respect of all matters covered by the provisions of the treaty.
33 The Singapore BIT excludes the application of the MFN clause to any existing bilateral investment agreement or ASEAN agreement and to agreements to promote regional cooperation, in respect of specific projects. The Korea BIT excludes from MFN and NT public procurement, certain subsidies granted by a Contracting Party and taxation measures. Some FTAs (eg, the Panama, U.S. and Canada FTAs) also exclude the application of MFN and NT to public procurement and subsidies.
34 The France BIT also adds that these measures may not be arbitrary.
35 Under the Turkey BIT the parties are required to provide the level of police protection required by international law.
36 These include the Singapore BIT and the Costa Rica and Israel FTAs.
37 Eg, the China, BLEU, India, UK and Turkey BITs and the Northern Triangle FTA.
38 See, eg, the Peru, BLEU, Korea, Japan, Singapore and France BITs and the Chile, US. Korea, Costa Rica, Pacific Alliance and Panama FTAs. Under the Turkey BIT and the Canada FTA, the Contracting Parties shall accord full protection and security in accordance with the minimum standard of treatment.
39 These include the Peru, India, China, BLEU, Singapore, Japan and Korea BITs and the Chile, US, Canada, Costa Rica, Panama and Korea FTAs.
40 Eg, the Peru, Korea and Singapore BITs and the Chile, US, Korea, Costa Rica and Panama FTAs.
41 It should be noted that certain government officials in Colombia’s IIA negotiating team have stated that this provision is not, in the usual sense, an umbrella clause.
42 Eg, the BLEU, Korea and India BITs and the Israel and Korea FTAs.
43 The Colombian Congress first approved the New York Convention through Law 37 of 1979, and later through Law 39 of 1990. The 1979 law was declared unconstitutional for technical reasons by the Supreme Court of Justice, through a decision dated 6 October 1988. Nonetheless, Colombia did not denounce the Convention. Rather, it ratified the treaty’s continued effectiveness with new implementing legislation in 1990. The continuing effect of the New York Convention (in spite of the 1988 decision), was acknowledged by the Supreme Court itself in a decision dated 20 November 20, 1993.
44 Decree 2080 of 2000 does not provide for specific dispute resolution procedures regarding investors’ substantive rights under the Decree. However, according to article 14, Colombian law applies to the settlement of disputes or conflicts arising from the application of foreign capital investment provisions, except as provided in international treaties or conventions.