COLOMBIA’S EXPERIENCES WITH INTERNATIONAL INVESTMENT ARBITRATION: CONTEXT, CASES, TREATIES

Abstract

This paper analyses Colombia’s experiences with international arbitration in disputes with foreign investors. Three periods of roughly 30 years were chosen: a) diplomatic protection of great powers’ expatriates in Latin America (Colombia) in the era of Imperialist rivalry: the last decades of the nineteenth century and the early years of the twentieth. This protection (sometimes with naval interventions) was meant to uphold a minimum standard of treatment for foreigners and gave rise to the Calvo doctrine as its counter-current protecting Latin American economic sovereignty; b) interregnum between the 1960s and 1980s: Calvo (prevalent in Latin America) reincarnated in an economic emancipation drive by postcolonial countries at the United Nations. Yet, the doctrine suffered a setback in the World Bank where the Icsid Convention was adopted despite a collective No vote by Latin American members on an earlier draft in Tokyo; c) investor-state arbitration under international investment agreements: expansion and retreat, from 1990 to present. Expansion of such agreements and emergence of a kind of arbitral case-law occurred between the early 1990s (when the Latin American mainstream abandoned Calvo) and the late 2000s. Counter-currents appeared since the early 2000, including treaty clarifications, public policy carve-outs, and withdrawals of Latin American, North American and European states. This periodization allows for comparing Colombia’s international investment arbitration consents, relevant awards, treaties, legislation and constitutional case-law over time.