Ministerio de Comercio Industria y Turismo República de

Ministerio de Comercio, Industria y Turismo República de Colombia THE COLOMBIAN BIT MODEL: A Balanced Treaty with NAFTA, OECD and Colombian Constitutional Elements Twelfth Investment Treaty Forum Public Conference Investment Treaties at 50: Host State Perspectives JOSE ANTONIO RIVAS Director of Foreign Investment and Services London, May 2009

INDEX Ministerio de Comercio, Industria y Turismo República de Colombia 1. Colombian Model BIT: Provisions to prevent i-S disputes a) Substantive provisions b) State Defense Clauses a) 2. Government Strengthening for i-S Disputes.

PROVISIONS TO PREVENT i-S DISPUTES: The Colombian BIT Model Ministerio de Comercio, Industria y Turismo República de Colombia ESTRATEGIC DEFENCES TO ARBITRATION What sorts of provisions are there in current International Investment Agreements that would allow states an appropriate defence?

PROVISIONS TO PREVENT I-S DISPUTES: The Colombian BIT Model Ministerio de Comercio, Industria y Turismo República de Colombia I. SUBSTANTIVE PROVISIONS OF MUTUAL COMMITMENT Greater precision of certain substantive clauses enhances legal certainty of the investor – State dispute settlement mechanism. Such provisions may include: §Definition of investment §Fair and equitable treatment & full protection and security §Most Favored Nation Treatment & National Treatment §Free Transfers §Expropriation and Compensation §Investment & Environment

PROVISIONS TO PREVENT I-S DISPUTES: The Colombian BIT Model Ministerio de Comercio, Industria y Turismo República de Colombia II. PROVISIONS ALLOWING STATES AN APPROPRIATE DEFENCE: Procedural provisions of the Colombian BIT Model drafted with a view to encourage an appropriate defence by the State in case of an investor - State dispute: § Rejection of the Maffezzini Doctrine §Obligation of exhausting local administrative remedies §Fork in the road §Reasonable time for the Government to respond to claims §Frivolous Claims §Umbrella Clause

Ministerio de Comercio, Industria y Turismo República de Colombia 2. GOVERNMENT STRENGTHENING IN INVESTOR – STATE DISPUTES

GENERAL CONSIDERATIONS Ministerio de Comercio, Industria y Turismo República de Colombia Issues to be thought of by developing States Parties to BITs or FTAs concerning i-S arbitration: § What model of defense should a developing country choose? i. Outsourcing legal services ii. In-house lawyers iii. Combined system ? Criterion: The model of defense should lead to an institutional strengthening of its defense system § Domestically, the agency involved, e. g. issuing the measure in question, should be liable if the Tribunal rules that the State is responsible. § Training on treaty implications to public servants : - who are directly involved in i-S defense; and - whose normal course of work relates to foreign investment.

GOVERNMENT STRENGHTNING FOR IRD ADMINISTRATION The Colombian Strategy República de Colombia Lead Agency INVESTOR I Ministerio de Comercio, Industria y Turismo Notification of a dispute –No. D- Involved Agency No. D MCIT There must be a Lead Agency centralizing notifications and coordinating any response. No. D Inter-agency Committee Involved Agency II III CONSULTATIONS INVESTOR – STATE: Investment related Agency INVESTOR MCIT Coordination Other Relevant Agency Claimant’s submissions Lead Agency must be in charge of coordinating the rest of governmental agencies involved in the Dispute. Lead Agency Investment related Agency INVESTOR KNOWING THE INVESTMENT RELATED DISPUTE (IRD) : Consultations ARBITRAL PROCEEDINGS Dialogue ARBITRATION FORUM It also must be the front desk for contacts between the investor and the administration. LEAD AGENCY MCIT State’s submissions INTER-AGENCY COMMITEE Coordination Even during the arbitration the above stated roles of the Lead Agency must be maintained. Any non-judicial solution must be approved by the Inter-Agency Committee

GOVERNMENT STRENGHTNING FOR IRD ADMINISTRATION The Colombian Strategy KNOWING THE INVESTMENT RELATED DISPUTE (IRD) : There must be a Lead Agency (LA) centralizing notifications and coordinating any response. The Investor must submit any notification to the LA. Ministerio de Comercio, Industria y Turismo República de Colombia INVESTOR – STATE ARBITRAL PROCEEDINGS CONSULTATIONS : Even during the arbitration, the above stated roles of the Leading Agency must be maintained. Lead Agency must be in charge of coordinating the other governmental agencies involved in the dispute in order to conduct consultations. It also must be the front desk for contacts between the investor and the Government. Any non-judicial solution must be approved by an interagency committee. The LA coordinates the State’s defense strategy.

PROVISIONS TO PREVENT I-S DISPUTES: The Colombian BIT Model Ministerio de Comercio, Industria y Turismo República de Colombia CONCLUSIONS • Colombia's BIT Model does not follow a single model, but includes elements from OECD, NAFTA and its own constitution. • The BIT Model responds to the arbitration experience of other developing countries. • Colombia's BIT model intends to accord protection to investors under international law standards, while enabling the State to perform an appropriate defense in case of investor-State arbitration. • A balanced treaty is not enough. BITs require follow up and an implementation program.

Ministerio de Comercio, Industria y Turismo República de Colombia THANK YOU! Ministry of Trade, Industry and Tourism www. mincomercio. gov. co

SUBSTANTIVE PROVISIONS Ministerio de Comercio, Industria y Turismo República de Colombia §ARTICLE 2 : INVESTMENT 2. 3. In accordance with paragraph 1 of this Article, the minimum characteristics of an investment shall be: a. The commitment of capital or other resources; b. The expectation of gain or profit; c. The assumption of risk for the investor. Article 25 of ICSID Convention sets forth specific § ICSID case Fedax N. V v. Venezuela. Paragraph 43: elements concerning the investment have been described “The basic features of an Jurisdiction of the Center: • as involvingof certain duration, a certain regularity of profit Existence a an investment • and return, assumption of risk, a substantial commitment The Parties • and a significance for the host State’s development. ” Existence of a dispute • The consent of the Parties Back

SUBSTANTIVE PROVISIONS Ministerio de Comercio, Industria y Turismo República de Colombia §ARTICLE 3: FAIR AND EQUITABLE TREATMENT & FULL PROTECTION AND SECURITY 3. (…) Each Party shall accord fair and equitable treatment in accordance with customary international law, and full protection and security in its territory to investments of investors of the other Contracting Party. (…) Colombia's BIT Model follows: On the Minimum Standard of Treatment of Aliens: i) Concerning Fair and Equitable Treatment (FET) the applicable standard is Customary International Law -Due Process of Lawii) FET does not require treatment in addition to that required by Customary International Law. It does not impair the exercise of the State’s regulatory powers in accordance with due process of law. iii) A breach of another provision of the agreement, does not establish a violation of FET standard. iv) Full Protection and Security, under the Model, applies a relative standard, i. e. to accord investors a protection and security no less favourable than Back that accorded to its own investors.

SUBSTANTIVE PROVISIONS Ministerio de Comercio, Industria y Turismo República de Colombia §ARTICLE 4 : MOST FAVOURED NATION TREATMENT AND NATIONAL TREATMENT 1. Each Contracting Party shall grant to the investments of investors of the other Contracting Party made in its territory, a not less favourable treatment than that accorded, in like circumstances, to investments of its own investors or to investors of any other third State, whichever is more favourable to the investor. National Treatment in Colombia's BIT Model: The obligation to grant foreign investors and their investments a treatment not less favourable than that granted to domestic investors and their investments is conditioned to the requirement that both investors and their investments be in like circumstances*. * It refers to the comparison to be made between the foreign investors and the domestic investors operating in the same business or economic sector. Pope & Talbot v. Canada Back

SUBSTANTIVE PROVISIONS Ministerio de Comercio, Industria y Turismo República de Colombia §ARTICLE 5: TRANSFERS 1. Each Contracting Party, prior fulfillment of the requirements under its law and without unjustified delay, shall allow investors of the other Contracting Party to effect, in a freely convertible currency, transfers of: (…) # 4 and # 5 In Colombia the Central Bank has constitutional powers to preserve the stability of Colombia´s currency, the normal functioning of internal and external payments. These powers are fully under the Constitution (art. 371 and 372) and are taken into account in all BIT negotiations. The powers to impose safeguards on transfers for macroeconomic and monetary stability included in Colombia´s BIT Model and its concluded BITs (i. e. Belgium – Colombia BIT), are similar to those recently referred to in the European Court of Justice’s decision on Swedish and Austrian treaty provisions. (Case C‑ 249/06 decided by the Grand Chamber on 3 March 2009) Back

SUBSTANTIVE PROVISIONS Ministerio de Comercio, Industria y Turismo República de Colombia §ARTICLE 8: INVESTMENT AND ENVIRONMENT Nothing in this Agreement shall be construed to prevent a Contracting Party from adopting, maintaining, or enforcing any measure that it considers appropriate to ensure that an investment activity in its territory is undertaken in accordance with the environmental law of the Party, provided that such measures are proportional to the objectives sought. This provision allows the State to ensure that investment activities are consistent with environmental concerns. The clause focuses on permitting the implementation of measures when the circumstances so require. However, the provision may not be abused given the Back

PROCEDURAL PROVISIONS Ministerio de Comercio, Industria y Turismo República de Colombia §ARTICLE 4 : MOST FAVOURED NATION TREATMENT AND NATIONAL TREATMENT 2. The most favourable treatment to be granted in like circumstances referred to in this Agreement does not encompass mechanisms for the settlement of investment disputes, such as those contained in Articles IX and X of this Agreement, which are provided for in treaties or international investment agreements. – Maffezini Clause- Rejection ofv. the Maffezini Doctrine in the -Maffezini Spain. Colombian BIT Model: has established, the BIT … “As the Tribunal §The decision on jurisdiction in theand the Kingdom between the Argentine Republic Maffezini v. Spain controversy does not clear for States negotiating BITs of Spain, made it specify the provisions for which that, if Most do not intend extending the MFN For this they Favored Nation Clause applies. clause to dispute settlement, for certainty, an express carve of reason, and finding no fundamental question out is required. public policy, the Tribunal has decided to extend the MFN clause to the procedural aspects of the Back Treaty”… §Colombia's BIT clarifies that the MFN clause ONLY

SUBSTANTIVE PROVISIONS Ministerio de Comercio, Industria y Turismo República de Colombia §ARTICLE 6: EXPROPRIATION AND COMPENSATION 1. Investments of investors of a Contracting Party in the territory of the other Contracting Party will not be subject of nationalization, direct or indirect expropriation, or any measures having similar effects (hereinafter “expropriation”) except for reasons of public purpose or social interest, in accordance with due process of law, in a non-discriminatory manner, in good faith and accompanied by a prompt, adequate and effective compensation Important Definitions § § ICSID case Feldman v. Mexico. Paragraph 112: applied for public Non-discriminatory measures of a Party that are designed and “Topurposes or social interest do not government regulatory activity -such makes paraphrase Azinian, not all constitute indirect expropriation (IE) that as public health, and environment protection-. it difficult or impossible for anmeasure ofto Party constitute IE requiresbusiness, § The determination of whether a investor a carry out a particular a case-bychange in the law inquiry considering: application of existing laws that makes case, fact-based or change in the i) it ii) The scope of the to continue a interference business, is and distinguishable uneconomical measure and their particular on the reasonablean expropriation…. ” expectations concerning the investment and; The economic impact of the measure. The sole fact of a measure or series of measures having adverse effects on the economic value of an investment does not imply that an indirect Back expropriation has occurred

PROCEDURAL PROVISIONS Ministerio de Comercio, Industria y Turismo República de Colombia §ARTICLE 10: SETTLEMENT OF DISPUTES BETWEEN ONE CONTRACTING PARTY AND AN INVESTOR OF THE OTHER CONTRACTING PARTY. # 1 –Obligation of exhausting local administrative remedies# 7 –Fork in the Road# 4; 5; 10 –Reasonable time for the government in order to respond claimants# 13 –Frivolous Claimants- With regard to acts of a governmental authority, in order to submit a claim to arbitration under this article or to a local court or administrative tribunal, local administrative remedies shall be exhausted, should it be required by the law of the Contracting Party. Back

Ministerio de Comercio, Industria y Turismo PROCEDURAL PROVISIONS República de Colombia §ARTICLE 10: SETTLEMENT OF DISPUTES BETWEEN ONE CONTRACTING PARTY AND AN INVESTOR OF THE OTHER CONTRACTING PARTY. # 1 –Obligation of exhausting administrative remedies# 7 –Fork in the Road# 4; 5; 10 –Reasonable time for the government in order to respond claimants# 13 –Frivolous Claimants- Once the investor has submitted the dispute to either competent tribunal of the Contracting Party in whose territory the investment has been admitted or any of the arbitration mechanisms stated above, the choice of the procedure shall be final. Contentious Procedure -In any case the decision is final- 1. LOCAL COURTS 2. NATIONAL ARBITRATION 3. INTERNATIONAL ARBITRATION Back

Reasonable time for the Government to respond to claims Ministerio de Comercio, Industria y Turismo República de Colombia Notice of intent dispute Request of arbitration 0 1 2 3 4 5 6 7 8 9 10 11 12 Local Adm. Remedies The State requires at least 12 months to avail itself the necessary information and coordinate with all agencies involved : - a mutually satisfactory solution with the investor, or - prepare its defense strategy.

FRIVOLOUS CLAIMS Ministerio de Comercio, Industria y Turismo República de Colombia The Tribunal shall consider whether the claim is frivolous, and shall provide the disputing parties a reasonable opportunity for comments. In the event of a frivolous claim the Tribunal shall award costs against the claimant.

PROCEDURAL PROVISIONS Ministerio de Comercio, Industria y Turismo República de Colombia's BIT model does not include an umbrella clause… As a matter of policy, in its BITs Colombia negotiates treaty provisions and not contractual provisions. § ICSID case SGS v. Pakistan: However, nothing precludes its Agencies to includeunlimited number of State contracts, as …”Article 11 would amount to incorporating by reference an recourse to international arbitration as an appropriate means to setting disputes that arise under specific well as other municipal law instruments settle out State commitments including unilateral contracts they an investor of the foreign investors. Any commitments to enter into with other Contracting Party. alleged violation of those contracts and other instruments would be treated as a breach of the BIT… however, since the Claimants did not show the alleged facts could constitute not only a breach of the contract, but also a breach of the BIT, this Tribunal does not have jurisdiction over SGS’s claims that Pakistan breached the PSI Agreement or over Pakistan’s claims that SGS breached the PSI Agreement. ”