2024 Arbitration Year In Review – Colombia

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THE AUTHOR:
Nicolás Rosero Espinosa, Senior Associate at Baker McKenzie

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Key Legal and Institutional Developments

In Colombia, arbitration is governed by Law 1563 of 2012 (the “Arbitration Statute”), which is inspired by the UNCITRAL (United Nations Commission on International Trade Law) Model Law on International Commercial Arbitration (1985). This framework adopts a dualist approach, clearly distinguishing between domestic and international arbitration. In 2024, several significant legislative initiatives were debated, and noteworthy developments emerged in the international, institutional, and even judicial areas.

Legislative Developments

• One of the key legislative initiatives currently under debate is Bill No. 211 of 2024C, which seeks to introduce arbitration as a mechanism for resolving debt enforcement disputes. It would allow parties to agree to submit to institutional arbitration, governed by law, both the enforcement proceedings and the underlying contractual controversy. Its objective is to provide a more agile and efficient enforcement alternative to ordinary courts, thereby contributing to reduce the currently congested caseload in the Courts.

• Conversely, Bill No. 198 of 2023S, which aimed to allow arbitration in tax, customs, and foreign exchange matters, was withdrawn by the authors of the bill in June 2024. Although the bill sparked a wide range of opinions, some considering it a necessary innovation and others warning of constitutional concerns, it ultimately failed to advance.

International Developments

Several key decisions and announcements concerning international investment were made during 2024:

• A new Bilateral Investment Treaty (“BIT”) between Colombia and Venezuela was adopted through Law 2370 of 2024. This treaty establishes a dispute resolution mechanism through ad hoc arbitration under the UNCITRAL Rules, excluding ICSID (International Centre for Settlement of Investment Disputes) arbitration in light of Venezuela’s withdrawal from the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) (“ICSID Convention”).

• Decision No. 9 of the Free Trade Commission of the Colombia–United States FTA introduced a joint interpretive declaration on the investment chapter of the treaty. The declaration clarified, among other points, that investors may only submit claims to arbitration if they have suffered actual losses resulting directly from the alleged breach, thereby excluding speculative claims.

• The Ministry of Trade, Industry and Tourism announced that Colombia would review the arbitration provisions contained in its investment treaties. This policy change was primarily driven by the unfavourable decision in the Telefónica v. Colombia case before ICSID. It seeks to preserve the State’s regulatory authority and affirm the jurisdiction of domestic courts.

Judicial Developments

In a notable decision, the Supreme Court of Justice of Colombia rejected the recognition and enforcement of an ICSID Additional Facility award` rendered in favor of the Investor in Rusoro Mining v. Venezuela (ICSID Case No. ARB(AF)/12/5). On June 20, 2024, the Court held that the rules governing sovereign immunity prevail in the enforcement of awards against foreign States. Therefore, in the absence of an express waiver of immunity by Venezuela, the award could not be recognized or enforced in Colombia.

Institutional Developments

The Arbitration and Conciliation Center of the Bogotá Chamber of Commerce (CAC-CCB) issued a set of new directives regarding international arbitration proceedings. Directive 011 set out procedural guidelines for the administration of such cases, including rules for communication between the parties, the tribunal, and the institution, as well as logistics for hearings, submissions, and deadlines. Directive 012 clarified the criteria used by the Center when appointing arbitrators. Meanwhile, Directive 013 formally recognized the role of tribunal assistants in international arbitration, allowing arbitrators to receive additional procedural support beyond the services already provided by the CCB’s Secretariat.

Arbitral Awards Involving Colombia in 2024

In 2024, several arbitral awards were rendered in investment disputes involving the Republic of Colombia. While some of these rulings were unfavorable to the State, others upheld the legitimacy of its regulatory measures.

Telefónica v. Colombia (ICSID Case No. ARB/18/3)

In 2017, Telefónica’s Colombian subsidiary was ordered by local courts to pay EUR 462.5 million in connection with the reversion of assets linked to mobile telephony concessions. Telefónica claimed that these decisions violated the Colombia–Spain BIT (2005) and filed for arbitration before ICSID. On 12 November 2024, the tribunal found that Colombia had breached the Fair and Equitable Treatment (“FET”) standard and ordered the State to pay approximately USD 380 million, plus interest and legal costs. Colombia has initiated annulment proceedings, and the enforcement of the award is currently stayed.

Eco Oro v. Colombia (ICSID Case No. ARB/16/41)

The Canadian company Eco Oro initiated arbitration against Colombia due to environmental restrictions that hindered its mining project. In an earlier partial award, the tribunal found that Colombia had violated the Minimum Standard of Treatment (“MST”). However, in the damages phase concluded on 15 July 2024, the tribunal held that the measures did not fully deprive the investor of its investment and that damages were not sufficiently proven. As a result, no compensation was awarded.

Montauk Metals (formerly Galway Gold) v. Colombia (ICSID Case No. ARB/18/13)

In a similar case, the claim arose from the prohibition on mining activities in páramo ecosystems, which affected the “Reina de Oro” project. On 7 June 2024, the tribunal found that Colombia had acted reasonably and in good faith in protecting the environment, and dismissed the claim in its entirety, finding no expropriation or breach of FET.

Red Eagle Exploration v. Colombia (ICSID Case No. ARB/18/12)

The claimant alleged that Colombia had unjustifiably altered the terms of its mining titles in the Santurbán region. On 28 February 2024, the majority of the tribunal rejected all claims, holding that there had been no expropriation and no violation of the MST.

Vercara v. Colombia (ICSID Case No. ARB/20/7)

The U.S.-based company filed arbitration following the non-renewal of its contract to administer Colombia’s domain “.CO”. On 20 September 2024, the tribunal dismissed all claims, concluding that Colombia had not breached its obligations under the Colombia–U.S. Trade Promotion Agreement.

Amec Foster Wheeler v. Colombia (ICSID Case No. ARB/19/34)

Multiple U.S. companies initiated arbitration in connection with consulting services related to the upgrade of the Cartagena Refinery. The award, rendered on 19 December 2024, declared all claims inadmissible for having been brought prematurely, finding no evidence of a treaty breach at the time the request for arbitration was filed.

South32 v. Colombia (ICSID Case No. ARB/20/9)

The Australian mining company South32 alleged violations of legal certainty concerning its investment, stemming from sanctions imposed by the Office of the Comptroller General following a fiscal liability investigation. The company claimed approximately USD 94 million. On 21 June 2024, the tribunal found Colombia in breach of the applicable BIT and ordered compensation in the amount of USD 9.5 million.

CB&I v. Colombia (ICSID Case No. ARB/22/11)

CB&I UK Limited initiated arbitration over contractual disputes regarding works performed at the Cartagena Refinery. The proceedings were discontinued by mutual agreement and formally closed on 30 April 2024 without a ruling on the merits.

In addition to the awards rendered, several new arbitrations were initiated during 2024 and early 2025. These include claims brought by Continental  in the mining sector, as well as more recent proceedings initiated by Centauro and Natanor,  and Maritime Archaeology Consultants. The development of these cases will be key in assessing Colombia’s evolving strategy in international arbitration.

From 2024 Lessons to 2025 Challenges

The year 2025 is shaping up to be a decisive period for Colombia in the field of international arbitration. The accumulation of recent awards, along with the initiation of new proceedings, confirms that the country remains at the center of discussions concerning the balance between the protection of foreign investment and the State’s right to regulate in the public interest.

In this context, the Colombian government’s announced review of investment treaty arbitration clauses could mark a turning point in the State’s international legal policy. The decisions taken regarding treaty reform, international defense strategies, and institutional arbitration frameworks will not only affect Colombia’s legal certainty but also its ability to build a development model that is sustainable, coherent, and resilient to global legal challenges.

That said, a review of the awards issued in 2024 does not reveal a consistent trend of unfavorable rulings against Colombia. On the contrary, in several proceedings, arbitral tribunals upheld the legitimacy of the State’s regulatory measures and dismissed investors’ claims. This raises the question of whether structural reform of Colombia’s investment framework should be driven by an adverse ruling, such as Telefónica, or whether a broader assessment based on cumulative evidence and long-term strategic analysis would be more appropriate.

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ABOUT THE AUTHOR

Nicolás Rosero Espinosa is a Senior Associate at Baker McKenzie (Lima), with solid experience in international arbitration —investment, commercial, and sports— in complex disputes and highly regulated sectors. He has acted as counsel in proceedings under ICSID, ICC, UNCITRAL, and before leading arbitral institutions across Latin American. He is listed as an arbitrator in regional arbitral institutions and has actively participated as a lecturer, speaker, and author in arbitration-related matters. He holds legal training from Colombia and Spain, and serves on the board of directors of Colombia Very Young Arbitration Practitioners (“COLVYAP”).

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