Investment treaty practice

Model BIT

Does the state have a model BIT?

Colombia has adopted three model BITs in the past 17 years and were published in 2003, 2006 and 2008. Since 2015, the government has worked on the new model BIT in order to adapt it to the latest updates in international investment law.

The current BIT (2008) can be found at: www.mincit.gov.co/loader.php?lServicio=Documentos&lFuncion=verPdf&id=81586&name=Model_BIT_2017.pdf&prefijo=file. The principal advantages are:

  • a more detailed definition of investment, excluding procedural matters from the most favoured nation clause;
  • it extends the concept of indirect expropriation;
  • it includes clauses advocating greater guarantees of regulatory powers;
  • it confers binding force to the interpretative declarations issued by the treaty parties; and
  • it establishes a statute of limitations.
Preparatory materials

Does the state have a central repository of treaty preparatory materials? Are such materials publicly available?

The Colombian Ministry of Foreign Affairs has a centralised database in which all treaties concluded by Colombia are stored and publicly available. The Ministry’s library in relation to international treaties provides information such as the date the treaty was concluded, the place where the treaty was adopted, ratification and date of entry into force (see: http://apw.cancilleria.gov.co/tratados/SitePages/Menu.aspx). In relation to BITs and FTAs, the Ministry of Commerce, Industry and Tourism has established a website containing information in relation to all preparatory materials of each treaty (see: http://www.mincit.gov.co/tlc/).

Scope and coverage

What is the typical scope of coverage of investment treaties?

Colombia’s BIT model intends to accord protection to investors under the standards of international law, while enabling the state to perform an appropriate defence in case of investor-state arbitration.

Colombia’s foreign investment system comprises direct and portfolio investments from individuals, legal entities or trust holding investment.

Colombia’s BITs and FTAs usually employ an inclusive, board and comprehensive definition for investment, which typically refers and covers ‘every type of asset’ with the generally accepted characteristics of investments such as commitment of capital or other resources, expectation of gain or profit and investor’s assumption of risk.

Protections

What substantive protections are typically available?

Pursuant to the Constitution, foreign investment is subject to the same treatment and benefits of national investment. The substantive protection that is typically included in investment treaties to which Colombia is a party are as follows:

  • most favoured nation treatment;
  • national treatment;
  • fair and equitable treatment;
  • full protection and security;
  • prohibition of expropriation without compensation;
  • guarantee of free transfers related to investments; and
  • compensation for losses.

As a matter of policy, Colombia has been consistent in rejecting the inclusion of umbrella clauses in its IIAs. Nevertheless, typical umbrella clauses have been included in some treaties, such as:

  • the Colombia-US FTA (2006);
  • the Colombia-Switzerland FTA (2007); and
  • the Colombia-Japan FTA (2001).
Dispute resolution

What are the most commonly used dispute resolution options for investment disputes between foreign investors and your state?

The most common dispute resolution options for investment disputes are ICSID, United Nations Commission on International Trade Law and ICSID’s additional facility rules.

Confidentiality

Does the state have an established practice of requiring confidentiality in investment arbitration?

No.

Insurance

Does the state have an investment insurance agency or programme?

No.