Reproduced from www.worldbank.org/icsid with permission of ICSID.
I. INTRODUCTION AND PARTIES
1. This case concerns a dispute submitted to the International Centre for Settlement of Investment Disputes ("ICSID" or the "Centre") on the basis of the Free Trade Agreement between Canada and the Republic of Colombia signed on 21 November 2008 and which entered into force on 15 August 2011 (the "FTA" or the "Treaty"), and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which entered into force on 14 October 1966 (the "ICSID Convention").
2. The claimant is Gran Colombia Gold Corp. ("GCG" or "Claimant"), a company incorporated under the laws of British Columbia, Canada.
3. The respondent is the Republic of Colombia ("Colombia" or "Respondent").
4. The Claimant and the Respondent are collectively referred to as the "Parties." The Parties' representatives and their addresses are listed above on page (i).
5. This dispute relates to Colombia's measures and omissions which have allegedly negatively impacted the Claimant's investments in the Colombian gold and silver mining sectors.
6. The Claimant alleges that Colombia has breached its obligations under (i) Article 811 of the Treaty by means of the indirect expropriation of its investments; (ii) Article 805 of the Treaty and customary international law concerning the standard of full protection and security; and (iii) Article 805 of the Treaty concerning the fair and equitable treatment standard. The Claimant submits that it is entitled to receive compensation for damage caused as a result of the Respondent's violations of the Treaty.
7. The Respondent alleges that the Tribunal does not have jurisdiction over the Claimant's claims. Among other jurisdictional objections, the Respondent claims that Colombia has effectively denied the benefits of the FTA to the Claimant pursuant to Article 814(2) of the Treaty (the "DoB Objection"). The Claimant acknowledges that Colombia purported to deny such benefits, by letter of 31 May 2018, but contends that this was improper and without effect. Additionally, the Claimant submits an ancillary claim under ICSID Arbitration Rule 40, alleging that Colombia has breached Article 814(2) of the FTA by means of its unfounded denial of benefits to GCG. The Respondent argues that the Tribunal should reject the Claimant's claim, on the basis that the requirements of Rule 40 are not met.
8. This Decision sets out the Tribunal's ruling on the Respondent's DoB Objection and upon the admissibility of the Claimant's ancillary claim.
157. For the reasons set forth above, the Tribunal decides as follows:
(1) the Respondent's request to dismiss the Claimant's claims, on the basis that the Respondent validly denied the benefits of Chapter Eight of the FTA to Claimant pursuant to Article 814(2) of the FTA, is denied;
(2) the Claimant's request to dismiss the Respondent's objection to jurisdiction on the basis of Article 814(2) of the FTA is granted;
(3) the Respondent's request to dismiss the Claimant's new claim for breach of Article 814(2) of the FTA, on the grounds that it does not meet the requirements for an ancillary claim under Arbitration Rule 40, is denied;
(4) the Claimant's request for a declaration that Respondent breached Article 814(2) through its purporting to deny benefits is denied as premature, pending further briefing from the Parties regarding the availability of relief for such a claim; and
(5) the Tribunal reserves decision on the Parties' respective requests for costs, for determination in conjunction with any subsequent such requests at the close of this proceeding.
Professor Bernard Hanotiau
Professor Brigitte Stern
Ms. Jean E. Kalicki