by Abhay Raj and Ajay Raj, third-year and fourth-year students at Jindal Global Law School and Symbiosis Law School PUNE, respectively.
On 16 September 2021, the Kingdom of Spain’s Prime Minister, Pedro Sánchez and Republic of Colombia’s President, Iván Duque Márquez singed the ‘promotion and reciprocal protection of investments’ (the ‘BIT’). This has been done with a view to provide legitimate rights to both the parties, to achieve the objective of public interest, and to ultimately secure reciprocal protection for their investments. With that, the BIT aims to ensure more independent, impartial, transparent, and coherent arbitration procedures for dispute resolution. While the BIT is not in the public domain yet, however, once in force, it will replace the 2005 Colombia Spain BIT. Owing to a review process that lasted for more than three years (began in December 2017), there are certainly high expectations with the new Colombia-Spain BIT, including inter alia, substantive protections and procedural rights.
Over the past few years, Spain and Colombia, two of the largest economies in the world, have undertaken notable reforms in the regime of international investment agreements and its framework. Including but not limited to Colombia’s revamping its Model BIT and Spain focusing on European Union’s investment protection policy. While Spain’s reform has largely been motivated by its experience in investor-State arbitration, Colombia’s reform directly emanates from its inactivity in investor-State arbitration before the year 2006. Common to both is the reform to modernise their investments with a focus on managing their exposure to investor claims. The reforms undertaken by both countries has led to the signing of the BIT.
The Colombia-Spain BIT fits into the narrative of being symbolic and following a systematic reform. The decision to modernise and renegotiate the 2005 BIT appears to follow the coeval discussions in the investment arbitration regime, including the conventional investor-state dispute settlement (‘ISDS’) system, Organisation for Economic Co-operation and Development (‘OECD’), and post-Treaty of Lisbon and European Union framework which authorised the European Commission for negotiating international investment agreements (‘IIAs’) with non-European Union states (regulation 1219/2012). Thus, the Spain government had to obtain authorization from the European Commission, before carrying out the negotiations with Columbia, ensuring a focus on EU objectives and policies.
The new BIT, 2021, assists in aligning Spain’s interest in investment commitments governing bilateral relations, with the European Union objectives and principles and European Union’s investment protection policy. These objectives and principles are broader policy considerations, for instance, promotion of democracy, human rights, sustainable development, fundamental freedoms, rule of law, standard of treatment, FET clause, and other features (briefly discussed in the latter part of the article). Despite Spain’s inactivity and non-participation in the realm of international investment, it has been one of the most competitive and attractive markets in the European Union. This is demonstrated by the fact of Spain’s being the third-largest in the investment market in the EU and thirteenth recipient of foreign investments in the world. The 2021 BIT is significant because of the fact that Spain signed a BIT after more than 10 years, and its far-reaching mandate maybe its advent into the area of international investment.
The Republic of Colombia, following 2006, has been mindful of signing and negotiating BIT’s with different States. Colombia till the year 2006, only signed two BIT’s with Peru (1994), and Spain (2005). Following that, it signed more than fourteen BITs. With that, the Republic of Colombia felt the need to renegotiate the existing BIT of 2005 with Spain to follow the trend after 2006 and the Colombia BIT Model, 2017.
The investment agreement between Colombia and Spain is symbolic from Colombia’s standpoint. Firstly, it is the first agreement that was renegotiated after Colombia’s Model BIT, 2017. The Model BIT, 2017 itself came after Colombia’s experience with the investor disputes (including, Glencore International AG and CI Prodeco SA v Republic of Colombia, ICSID Case No ARB/16/6; Ame ́rica Mo ́vil SAB de CV v Republic of Colombia, ICSID Case No ARB(AF)/16/5; Eco Oro Minerals Corp v Republic of Colombia, ICSID Case No ARB/16/41; Gas Natural SDG and Gas; and in total 13 such cases) concerning old BIT’s (Model BIT-2003, 2006, 2009, 2011).
Secondly, the Colombia-Spain BIT has followed the Colombian Constitutional Court’s judgement (available here), which conditioned on issuance of a joint interpretative note of the provisions entailed in the BIT. According to the Colombian Constitution, the Court’s must assert whether the international treaties signed (and before ratification) are constitutionally valid or not. As such, if the Constitutional Court rules that the treaty’s clauses are unconstitutional, it is unfit to enter such treaty into force.
The changes introduced by the renegotiated Colombia-Spain BIT precisely include: (i) Replacing the conventional Investor-State Dispute Settlement with the Multilateral Investment Courts once the treaty comes into force and replaces the 2005 BIT; (ii) Explicitly stating the non-consideration of holding companies as investors, i.e., explicitly excluding companies that merely hold financial interest; (iii) Excluding the fulfilment of the commitments assumed by the Contracting Parties in commercial and economic integration projects and implying that most-favoured-nation treatment cannot be reached into other treaties; and (iv) Miscellaneous changes (reviewing of the Standard of Treatment, the Fair and Equitable Treatment standard, Denial of Benefits clause, and inclusion of Transparency Rules of the United Nations Commission for International Trade Law (‘UNCITRAL’)).
- Multilateral Investment Courts
As a BIT that is signed at an hour when the world is calling reforms in the Investor-State dispute settlement, (for instance, India; Bolivia; Ecuador; Venezuela; Pakistan have refrained from ICSID Convention), the Interpretative Declaration has catalysed Multilateral Investment Court (‘MIC’) and replaced the conventional ISDS system. The proposal of MIC which began with the UNCITRAL Working Group III suggestion (by the European Union and to which Spain is a member state) has come into play with the recent BIT. Such a Court would adjudicate upon claims brought under IIAs, which the member States have decided in assigning the authority. Both of the bodies shall be staffed by decided adjudicators and would be paid on a permanent basis by the member states, with a secretariat to support them.
Such a negotiation is correlated with the EU’s efforts in calling for a global level reform in the ISDS system. As also evident in the 2019 Final Dutch Model BIT, the EU is taking steps against replacing the conventional system with a permanent investment court arbitration tribunal; for instance, the EU council provided the European Commission for establishing a MIC under the auspices of UNCITRAL.
The renegotiation has been placed ensuring independent, coherent, impartial, predictable, and transparent arbitration procedures. However, the BIT could have worked on bringing reforms to the conventional ISDS system. For instance, the new BIT could have provided explicit provisions regarding the advisory centre, third-party participation, claims on public money, and third-party funding (as suggested in the UNCITRAL Working Group III session). The BIT could have drawn a fine balance between the conventional ISDS and State’s exposure, by incorporating several exclusions/reservations with respect to the applicability of the system.
Notwithstanding that, as also discussed in the blog piece by Andreea Nica, the MIC can effectively cater to the concerns regarding duration and cost of the proceedings, appointment of arbitrators, arbitral decisions’ predictability and consistency, and regarding diversity, independence and transparency. Adoption of MIC, thus, acts as a catalyst in providing a better arbitration regime for both the countries (since it mitigates the above mentioned flaws in ISDS system). With that, being a permanent first instance tribunal, MIC would provide for effective enforcement of the decisions in the BIT. Because of the far-reaching implications of the BIT protection standards, MIC would help in an effective process that works transparently and with highly qualified arbitrators. Spain and Colombia being active protectors of the key legal principles of the international investment law, will definitely be able to uphold the principles through the reforms in the BIT, in particular, the ISDS system.
- Non-Consideration of Holding Companies as Investors
The BIT concluded for the first time, the non-consideration of holding companies as investors in Articles 1, 2, and 3. This is reflected by the Interpretive Declaration’s view that “the concept of investor explicitly excludes companies that merely hold financial interests”, which is in contrast with the previous IIAs which did not have such a provision for holding companies. Such a view was observed in the Colombia’s Model BIT, 2017, that the investment shall include a closed list of assets, in place of an exemplary list.
- MFN Treatment
The most favoured nation treatment has been subject to controversies in investor-state arbitration. However, both Colombia-Spain BIT, 2005 (Article 3) and Colombia Spain 2021 contain the clause of most-favoured-nation (MFN). The Interpretative Declaration clears the exclusion of MFN clause to the extent of the treatments that are derived from the fulfilment of the commitments assumed by the Contracting Parties in commercial projects. This in turn creates a level-playing field for all the foreign investors by prohibiting the host states in discriminating between investors from different countries, and as such, the investors won’t be able to indulge in treaty-shopping. The same was observed in many of the Brazilians BIT’s, for instance, with Chile, Colombia, and Mexico, wherein it stated ‘excluded from the scope of the MFN clause the benefits deriving from regional economic integration’.[i]
Comparing it with Colombia’s Model BIT, 2017 in which, the MFN provision was specifically designed to avoid the usage of standards of protection to ‘import’ procedural and substantial provisions from other IIAs.[ii] The model BIT provided for the MFN standard to be invoked only in cases where measures such as administrative acts, or judicial decisions violate the provision of equal treatment of the foreign investors that are a competitor.
- Miscellaneous changes
At present, the Interpretative Declaration shall assist us in, little if any understanding, of its stand on the clauses such as the FET clause, Denial of Benefit clause, UNCITRAL rules, and standard of treatment clause. f the above-mentioned clauses.
1. The Fair and Equitable Treatment
The present BIT has thoroughly revised the Fair and Equitable Treatment (‘FET’) standard to minimise the interpretative margins of the Courts. FET clause will thus, act as a catalyser in encouraging investments in the host state by the investors; by not only protecting the investors rights, but also the autonomy of the states. The changes in the BIT vis-à-vis FET standard has followed the recommendations made by the United Nations Conference of Trade and Development (UNCTAD) and the EU investment protection agreement’s approach.
2. UNCITRAL Rules
For the first time in history, Spain has agreed to include the Transparency Rules of the United Nations Commission for International Trade Law (UNCITRAL rules) in an attempt to advance its emphasis on independence and impartiality of the members of the Tribunal and the transparency of the procedure.
3. Standard of Treatment
The contents in the BIT, 2021, regarding the standard of treatment has been reviewed in an attempt to circumscribe the tribunal’s margin of interpretation and promote correct interpretation in investor-state disputes. The other mandate is to mitigate the exposure in consideration of the ambiguous wording. It is ideal attempt to clarify the wide spectrum in treaty standards, and simultaneously, it also acts as a catalysers for promoting investment (because of the explicit mention of the provision). With that, it also helps in regulating the autonomy of the States (because of the revision of treatment standard).
Although the full text of the BIT is not in the public domain yet, only the Interpretative Declaration, the New BIT definitely includes certain symbolic changes. The new BIT, 2021 is a fresh expression of the speedily shifting landscape in the investment arbitration, and reflects the significant changes since the 2000s. The renegotiated Colombia-Spain BIT addresses a number of conceptual and semantic difficulties that have emanated from the 2005 BIT or that have emerged after the difficulties in the conventional ISDS system. Therefore, the renegotiated Colombia-Spain BIT is anticipated to cater to the interpretative uncertainties that are left to the realms of Courts and mitigate both Spain’s and Colombia’s exposure to non-meritorious claims. When the investor-state dispute settlement system is going through a paradigm shift, the Spain-Colombia BIT, 2021, definitely makes hay while the sun shines, in an attempt to protect investor rights, sovereign prerogatives and public interest.
[i] Henrique Choer Moraes, Pedro Mendonça Cavalcante, The Brazil-India Investment Co-operation and Facilitation Treaty: Giving Concrete Meaning to the ‘Right to Regulate’ in Investment Treaty Making, ICSID Review – Foreign Investment Law Journal, 2021; siab013, https://doi.org/10.1093/icsidreview/siab013.
[ii] Kabir AN Duggal, Daniel F García Clavijo, Samuel Trujillo, María C Rincón, Colombia’s 2017 Model IIA: Something Old, Something New, Something Borrowed, ICSID Review – Foreign Investment Law Journal, 34(1), 224–240 (2019), https://doi.org/10.1093/icsidreview/siz004.