Introduction<\/strong><\/p>\n As the saying goes, consent<\/a> is the cornerstone of the jurisdiction of international courts and tribunals. In the arena of investor-State arbitration, sovereign States\u2019 offer to arbitrate may be limited in the relevant international investment agreement (IIA). Based on parties\u2019 consent, the scope of jurisdiction<\/a> of investment tribunals consists of mainly three dimensions: jurisdiction ratione personae<\/em><\/a>, jurisdiction ratione temporis<\/em><\/a>, and jurisdiction ratione materiae<\/em><\/a>. It is always a good win for a State to knock out a claim at the jurisdictional stage.<\/p>\n This month, Jus Mundi continues the special edition of the Arbitration Team of the Month featuring a government legal team. With Colombia<\/a>\u2019s recent victories in Carrizosa v. Colombia<\/em><\/a> and Carrizosa and others v. Colombia<\/em><\/a>, we are delighted to present Colombia\u2019s Agencia Nacional de Defensa Jur\u00eddica del Estado along with an interview with Ms. Ana Mar\u00eda Ordo\u00f1ez Puentes<\/a>, the head of Colombia\u2019s international litigation department at the State’s Legal Defense Agency.<\/p>\n Recent victory cases analysis: <\/strong>Carrizosa v. Colombia<\/em><\/strong><\/a> and <\/strong>Carrizosa and others v. Colombia<\/em><\/strong><\/a><\/p>\n Colombia has prevailed in two investment treaty disputes \u2013 a US$40 million ICSID claim<\/a> brought by Ms. Carrizosa in a bank that was nationalized during the country\u2019s financial crisis in the 1990s, and a parallel US$323 million UNCITRAL claim<\/a> brought by Ms. Carrizosa\u2019s sons (who are US – Colombian dual nationals) over their former ownership of the bank.<\/p>\n Colombia\u2019s Agencia Nacional de Defensa Jur\u00eddica del Estado was assisted by Arnold & Porter<\/a> in London and Washington, D.C.<\/p>\n Facts<\/strong><\/p>\n Tribunal constitution <\/strong><\/p>\n Carrizosa v. Colombia<\/em><\/strong><\/a><\/p>\n Carrizosa and others v. Colombia<\/em><\/strong><\/a><\/p>\n Tribunal\u2019s decision<\/strong><\/p>\n Carrizosa v. Colombia<\/em><\/strong><\/a><\/p>\n In an award<\/a> dated April 19, 2021, the ICSID tribunal declined jurisdiction over the claim filed by Ms. Astrida Benita Carrizosa on the ground that the measures taken by the State fell outside of the scope of the US – Colombia TPA<\/a> and its limitation period. Ms. Carrizosa was ordered to pay over US$1 million in arbitration costs and 50% of Colombia\u2019s legal costs.<\/p>\n Carrizosa and others v. Colombia<\/em><\/strong><\/a><\/p>\n In an award<\/a> dated May 7, 2021, the UNCITRAL tribunal declined jurisdiction over claims brought by Ms. Carrizosa\u2019s sons as their \u201cdominant and effective\u201d nationality<\/a> was Colombian. The brothers were also ordered to pay US$1.8 million in costs of arbitration and nearly all of Colombia\u2019s legal fees.<\/p>\n Legal rationale<\/strong><\/p>\n Carrizosa v. Colombia<\/em><\/strong><\/a><\/p>\n Carrizosa and others v. Colombia<\/em><\/strong><\/a><\/p>\n <\/p>\n Interview with Ana Mar\u00eda Ordo\u00f1ez Puentes<\/strong><\/p>\n Here we are dealing with two cases, Astrida Carrizosa vs. Colombia<\/em><\/a> and the one we refer to as the Carrizosa brothers vs. Colombia<\/em><\/a> (collectively \u201cCarrizosa cases\u201d). In both cases, limitations to consent played a crucial role. First, we want to mention that the US – Colombia TPA<\/a> (\u201cTreaty\u201d) is clear in describing certain conditions as limitations to our consent to investor-State arbitration. Absent compliance with any of those conditions, there is simply no jurisdiction. The tribunals in the Carrizosa cases correctly acknowledged that this was the case. There are important messages we would like to highlight.<\/p>\n The message in Astrida Carrizosa was very important and matches our understanding of the limitations that we as sovereign States included in the Treaty. In this case, the Tribunal was careful to note that limitations to consent to investor-State arbitration should not only be found in the particular clauses referring to this mechanism, but also in the substantive clauses governing the temporal application of the treaty. Absent an express departure from the non-retroactivity principle, the Treaty, including the dispute settlement mechanisms, should be limited to independently actionable facts or conduct post-dating the Treaty\u2019s entry into force. The tribunal also made clear that the three-year limitation period in Article 10 (8) was nothing else but a condition to consent. No other decision was expected since Section B of Chapter 10 is entitled \u201cConditions and Limitations on the Consent of Each Party\u201d.<\/p>\n The message for alleged investors in the Hermanos Carrizosa brothers\u2019 case was also fortunate and straightforward. I say \u201calleged\u201d because the Tribunal decided in the Carrizosa brothers\u2019 proceedings that they did not qualify as \u201cinvestors of a Party\u201d according to the Treaty (Treaty, Article 12.20<\/a>), since their dominant nationality at the relevant dates was Colombian. As noted by the US in its non-disputing party submission, [w]here the requisite nationality does not exist at the operative times set out above, the respondent Party has not consented to the submission of the claim to arbitration at the outset and the tribunal therefore lacks jurisdiction ab initio under Article 10.17 [which is incorporated into Chapter Twelve by Article 12.1.2. (b).]\u201d The Tribunal had no problem recognizing that this was a matter of consent and accordingly, declared that it lacked jurisdiction.<\/p>\n We are satisfied with the approach of the Tribunal because it made clear that the requirements set in the Treaty are not mere formalities, but conditions of consent. The awards also tackle some of the concerns that call for major reforms in the system, since they show that investment treaties provide for investor-state arbitration as a unique and exceptional mechanism, accessible and enjoyable only where the conditions of consent are sacredly honored. We also commend that, notwithstanding the particularities of the cases, the Tribunal made sure their reasoning was well supported both in general international law, and in previous awards and international judgments \u2013 or distinguished from them – as relevant to specific questions. This contributes to the legitimacy of the system, by showing investment awards can be predictable.<\/p>\n Pursuant to Article 129 of Law 1955\/19, the strategy for the legal defense of Colombia is strictly confidential. The strategy for the appointment of arbitrators is an essential part of our legal strategy in investor-State arbitration and other proceedings in the entity\u2019s portfolio. Accordingly, we are not allowed to pronounce on this matter.<\/p>\n That said, we can share some general criteria and rationale we consider relevant in this process. First and foremost, as a public entity, Agencia Nacional de Defensa Jur\u00eddica del Estado is obliged to perform all its duties with adherence to the principles of economy and efficiency as a public fund\u2019s manager. This means that when two or more arbitration proceedings concern the same factual framework and set of State measures, we not only feel inclined to engaging the same external counsel (if needed), but also designate the same arbitrator. This allows us to maximize the effects and benefits of the limited human and economic resources invested in the preparation of our cases. This partly explains our decision to appoint Dr. S\u00f6derlund in the two Carrizosa proceedings and to preserve the same external counsel in both cases. A more obvious statement is that, for those who pass the conflict-checking process, our preference is for arbitrators with proven expertise in public international law, investment arbitration, the particular subject matter of the dispute, civil law, and, importantly, with reasonable burden of work. Proficiency in Spanish is desirable but not mandatory. We are also very well aware of the systemic issues affecting investor-State arbitration, and are progressively transitioning from the typical names to some highly competent but less obvious profiles, including females from our region.<\/p>\n Here we are referring to ICSID proceedings instituted by Ms. Astrida Benita Carrizosa against Colombia. Ms. Carrizosa sought to substitute the 3-year limitation period in the Treaty (Treaty, Article 10 (8)<\/a>), with the allegedly more favorable 5-year limitation period in the Colombia – Switzerland BIT<\/a> (Article 11 (5)<\/a>). Beyond the positive result, we are satisfied with the reasoning and decision of the tribunal. We believe it is impeccable. All in all, the tribunal\u2019s approach in declining jurisdiction over MFN claims was clear, predictable and of relevance beyond the four corners of this arbitration.<\/p>\n We should recall that the Tribunal was not required to address all the allegations of the parties on this point. In particular, it did not need to pronounce on arguments pertaining to the application of the MFN clause to displace the relevant treaty\u2019s conditions of consent to jurisdiction. For the Tribunal it was sufficient to note that, even admitting that jurisdictional benefits may derive from the invocation of the MFN clause: (i) Article 12.2(b) of the FTA expressly limited the application of investor-State dispute settlement to allegations of breaches of certain standards in the treaty, none of which covered the MFN clause in Article 12.3.1;(para. 198<\/a>) and (ii) even having jurisdiction to consider the MFN clause in Chapter 12 of the FTA, the claims would have been time-barred because the \u201cevents giving rise to the dispute\u201d, the language used in the Colombia-Switzerland BIT, took place more than 5 years before the filing of the request for arbitration. We are not sure this language was actually more favorable to the case of the investor.<\/p>\n We are of course pleased with this decision which ultimately reaffirmed that the Tribunal lacked jurisdiction. However, the award contains important reasoning that contributes to the study and practice of international investment law and arbitration.<\/p>\n First, the Tribunal noted that both Colombia and the US shared the view that they had not consented to investor-State arbitration regarding Article 12.3.1 (para. 199<\/a>). Interestingly, the Tribunal was concerned with the question whether the statements expressed during the course of arbitral proceedings could amount to subsequent practice pursuant to VCLT Article 31.3(b) (para. 202<\/a>). Although the Tribunal did not pass judgment on this question, and simply stated that the State parties\u2019 common position had confirmed the clear language of Article 12.1(b) (para. 203<\/a>), it noted without disapproval the position of the International Law Commission (\u201cILC\u201d) in this respect (conclusion 4, comment 18)<\/a>. We paid close attention to this reference to the work of the ILC.<\/p>\n Second, the Tribunal addressed an argument by claimant that Article 10.22 on the law applicable, and Article 12.3.1 containing the MFN clause, were sources of jurisdiction over the MFN clause in Chapter 12 and generally over all matters governed by the treaty. Albeit claimants, including this one, usually argue that jurisdiction amounts to treatment, in this case, the investor posited that the substantive clause prohibiting less favorable treatment was a source of jurisdiction since \u201ca treatment protection standard has no practical remedial application if it does not provide for the right to pursue compensatory damages arising from its breach\u201d.(para. 209<\/a>) The decision of the tribunal has relevance beyond the case at hand, not only because it correctly upholds the difference between law applicable and jurisdiction, an important one across the whole field of international adjudication, but because it cautions that such type of interpretation comes with the risk of depriving the conditions of consent set forth in a treaty of any meaningful purpose or effect (paras. 204-211<\/a>).<\/p>\n Third, the tribunal confirmed that when making recourse to an MFN clause, recourse has to be made to the other treaty as a whole, including its own conditions of application, and not only to the more favorable clause (paras. 212, 215<\/a>). Important implications derived in the Carrizosa proceedings out of this clarification.<\/p>\n Apart from the positive results for Colombia, we believe this is a good award.<\/p>\n As mentioned before, the Tribunal correctly decided, consistent with the positions of both Colombia and the US, that the question of dual nationality was directly concerned with consent and accordingly, with jurisdiction. The tribunal also coherently decided on the burden of proof in this regard. This is relevant because in this and other arbitral proceedings, not only those against Colombia, we have seen arguments by investors that there is merely a prima facie burden to establish jurisdiction. In their view, once certain elements of jurisdiction are established prima facie, the onus should shift to the State to prove otherwise. Aside from the obvious statement that this has only been considered correct in the context of provisional measures, this does not resist analysis. If the investor alleges that the tribunal has jurisdiction, it has the burden to demonstrate that all the conditions to consent are met. For some similar reasons, we consider the decision of the tribunal to decide the question of nationality on the basis of the available evidence, instead of on the basis of the subjective beliefs of the investor, should be generally welcome. The establishment of nationality has been historically described as a super intensive fact-specific assessment that should not be replaced by the investors\u2019 unilateral characterization of its sentiments.<\/p>\n Finally, we also believe the decision is one of quality as it properly considered and applied the public international law relevant to a question not exhaustively regulated by the treaty, and consulted the necessary auxiliary sources, using what was relevant and drawing the proper distinctions where applicable.<\/p>\n There are many advantages of having the internal disputes department involved in investment cases. In light of Colombia\u00b4s experience, we recommend a hybrid approach to all States managing disputes, at least until they gain the necessary experience to represent their interests directly. Just to mention some of the advantages, (i) the involvement of the local team guarantees coherences between the positions taken by the State in past and ongoing cases, (ii) allows for important savings in costs and time (iii) and builds internal capacity.<\/p>\n We should first clarify that, although we still rely on external counsel for the design of the legal strategy in most of our arbitrations, we act as co-counsel in every one of them. These marks and defines the way we work with external counsel. It means we are always thinking about how to substantively contribute to the positive outcome of the arbitration, and that our external counsel should always be ready to receive and discuss such substantive legal advice. This is especially relevant nowadays since we are progressively taking sole charge of the arbitration proceedings, especially at the early stages, which means our relationship with external counsel starts when we are already familiar with the facts and legal issues, and have developed a sense of the best legal strategy.<\/p>\n This type of approach brings benefits for both in-house and external counsel. For us, based on the experience and knowledge gained working next to the best law firms in the world, we are allowed to cross-fertilize our decision-making processes in 14 active proceedings. We also increase our efficiency rates because the experience has allowed us to predict the complexities of the evidence collection and to feed the decision-makers with the proper messages. For the external counsels this is also beneficial. Before engaging legal experts on Colombian law, if necessary, we are a direct source of qualified analysis and are better placed than anyone to liaise and establish connections with the relevant stakeholders. This saves a lot of time and costs to the firms, because we act as a sort of filter for unnecessary meetings and information.<\/p>\n An important aspect of our job is to make sure our positions are consistent throughout our practice. This is something States should pay special attention to. It is our mission to not only make sure the positions we defend are well-sourced and can benefit our immediate needs, but to also oversee the implications they might have in other proceedings. This includes cases with similar factual contexts, but also others where the connections are less obvious.<\/p>\n Finally, building internal capacity is not only relevant for our long-term interests in the litigation scenario. We are also tasked with important prevention roles. In fact, our day to day job includes countless meetings where we provide feedback and advice to the whole range of public entities in Colombia. We also work closely with the public policy section of Agencia Nacional de Defensa Jur\u00eddica del Estado in creating guidelines and workshops to train public officials at all levels on the basic elements of international investment law. By working closely and actively with our external counsel, we have developed a better understanding of the type of measures that usually create problems in the different sectors.<\/p>\n Definitely yes. But this means States should also carefully consider and design the composition of the internal legal team. All members of the in-house advisory group should be capable of, and interested in building bridges and genuine relationships with both major decision-makers and public officials tasked with the day-to-day functions of the relevant entities. In practice, we have our senior advisors engaging in high-level public international law discussions with partners from global law firms, but also visiting the ground to talk with miners. We are also better positioned for these purposes because an arbitration is not a normal eventuality and we are constantly faced with expressions of concern by our public officials. It is normally our internal disputes team who inform public officials that ICSID proceedings have a basis in domestic law, or about the guarantees enshrined in the relevant rules of procedure and treaties for the protection of the confidentiality of sensitive information. We also make sure that the requests for information are transmitted to public officials in a clear and amenable language, avoiding them to feel harassed by external counsel they have never met before.<\/p>\n Our biggest challenge is to get the best possible legal defense at a reasonable price. Admittedly, the ample spectrum of world-class legal services providers around the world makes our task a bit easier. In any event, with 14 investor-State arbitrations proceedings currently active, and experiencing one of the most dramatic economic crises in our history, keeping legal fees at proper levels is not a choice but a legal and moral mandate. The awards rendered in 2021 expressly note that our legal costs were reasonable. Together with the good results of this year, this is reassuring for both the decision-makers who believe in what we are doing, and for taxpayers.<\/p>\n A related challenge concerns the complexities of the laws applicable to our contracting process. It is public law, not private law, that governs our contracts with global law firms. We understand that the process is not only slow but in certain ways unique. As an example, we are forbidden by law to assume the risk of fluctuation of the exchange rate. This means that even when we contract in US dollars, we are committed to a unique exchange rate and a fixed number of Colombian pesos. This has to be made clear, the number of Colombian pesos we include in the national budget for one arbitration cannot increase. Such set of rigorous rules has of course not prevented us from engaging the best law firms in the market. Over the years, for obvious reasons, we have developed a preference for those legal service providers, who not only are capable of providing us with the best legal defense, but also show sympathy and empathy with our limitations and restraints as a public entity.<\/p>\n The aforementioned are the specific and more characteristic challenges that our in-house team faces in its relationship with external counsel. Our decision-making process is also influenced by our long-term interest in maximizing the benefits of a hybrid model of defense. This is something we expect to deal with more exhaustively in the future.<\/p>\n <\/p>\n Track-record highlights<\/strong><\/p>\n In addition to the above-mentioned victories over the Carrizosa family, the Republic of Colombia has prevailed in two other investor-State arbitration cases.<\/p>\n The Republic of Colombia is currently involved in several investment arbitrations:<\/p>\n Table of investor-State arbitration cases involving the Republic of Colombia (recent victories\/pending cases)*<\/strong><\/p>\n Colombia is currently involved in multiple investor-State arbitration cases, notably at the center of the ICSID.<\/p>\n To see all types of cases involving the Republic of Colombia available on Jus Mundi, please click here<\/a>.<\/p>\n We selected a few recent victories and ongoing cases of the Republic of Colombia in the table below.<\/p>\n [table id=25 \/]<\/p>\n (Note*: This table is not exhaustive.)<\/p>\n <\/p>\n Spotlight <\/strong><\/p>\n General Director of the National Agency for the Legal Defence of the State of Colombia (the \u201cAgency\u201d). His legal practice has been focused mostly in the public sector, where he has held several directive positions. At the beginning of his career, he was appointed as the General Manager of the Public Services Company of Bogota, and later on as the Private Secretary of the Mayor of Bogot\u00e1. During the presidential period of Cesar Gaviria (1990 -1994), G\u00f3mez was the Secretary General of the Ministry of Development, and was later appointed as the Superintendent of Companies, the Colombian authority in charge of the surveillance, control, and supervision of companies. Further on, during the presidential Government of Andr\u00e9s Pastrana (1998-2002) he served as the High Commissioner for Peace, responsible for the negotiations with FARC and ELN aimed to end the armed conflict of Colombia. In 2008, the Supreme Court of Justice nominated him as its candidate for Attorney General of the Nation and in 2014, he was the Vice Presidential candidate for the presidential campaign of Marta Luc\u00eda Ram\u00edrez, who is currently the Vice President of Colombia. Prior to joining the Agency, G\u00f3mez was the partner of the Law firm G\u00f3mez & Alzate, where he advised private companies in the industries of oil & gas, infrastructure and health care.<\/p>\n Ana Mar\u00eda Ordo\u00f1ez is the head of Colombia\u00b4s international litigation division at the State\u00b4s Legal Defense Agency. She is a Colombian lawyer from Pontificia Universidad Javeriana with an LL.M. from King\u00b4s College London. She has acquired experience in international arbitration and litigation through her work in local and global law firms. She began her career in public service in Colombia more than 8 years ago. As the head of the international litigation division at the Agency, she structured Colombia\u00b4s legal defense model, and faced the first investment disputes filed against Colombia. For the past 4 years, she has led the work of the Agency to consolidate what has been a successful defense model. She also forms part of the Colombian delegation that participates in the reform of investor-state dispute settlement in UNCITRAL\u2019s Working Group III and the ICSID rule amendment.<\/p>\n Elizabeth Prado specializes in international commercial and investment arbitration. She has acted as counsel in international arbitrations under the ICSID, ICC, and UNCITRAL rules in the mining, infrastructure, financial, and information and technology sectors. Currently, she also advises the Colombian Government on the reform of investor-state dispute settlement in UNCITRAL\u2019s Working Group III and participates in pre-arbitral negotiations. Prior to joining the International Litigation team of Colombia in 2019, Elizabeth taught international arbitration for LLM students at a local university and advised international investors and different State agencies on complex disputes. She was also a member of the Colombian negotiating team for the FTA between the UE and Colombia-Per\u00fa and worked as an associate lawyer at a local Firm. Elizabeth holds an LLM (MIDS) in international dispute settlement and is fluent in Spanish, English, German, and French.<\/p>\n Giovanny is a lawyer from Universidad del Rosario in Colombia with an LL.M. from University College London (Chevening Scholar). Before joining the investment arbitration group at Agencia Nacional de Defensa Jur\u00eddica del Estado, he served in several capacities at the Colombian Ministry of Foreign Affairs, including as Legal Advisor of the Treaty Section and as Chief of the International Legal Advisory Section. Giovanny has also advised Colombia and Colombian entities in proceedings before the International Court of Justice, the Inter-American Court of Human Rights, and commercial arbitration tribunals. He also teaches public international law at Universidad Nacional and Universidad de la Sabana in Colombia. He has also published in the field of human rights international law, the law of the sea, and international adjudication.<\/p>\n Yadira Castillo holds a PhD in law from los Andes University (Bogot\u00e1-Colombia) and a LLM in administrative law from Externado University (Bogot\u00e1-Colombia). She teaches domestic and international investment arbitration at Santo Tomas University (currently) and los Andes University (starting the second semester of 2021). Yadira publishes essays about international investment arbitration and is an online contents editorialist on domestic and international investment arbitration. Prior to joining the Agency, Yadira acted in advisory roles to various public entities and was involved in litigation processes within domestic courts. In addition to Spanish, she speaks fluid English.<\/p>\n <\/strong><\/p>\n For more information on the Republic of Colombia\u2019s investment arbitration practice, click here<\/a>.<\/p>\n Congratulations to the team again, and Jus Mundi wishes them good luck for the future!<\/a><\/a><\/p>","protected":false},"excerpt":{"rendered":" This month, The Republic of Colombia is nominated as Jus Connect Arbitration Team of the Month. 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