Reproduced from www.worldbank.org/icsid with permission of ICSID.
TABLE OF CONTENTS
I. The Essential Security Provision Cannot Divest This Tribunal Of Jurisdiction Or Limit Colombia's Liability
I.A. Ordinary Meaning
I.B. Context, Object and Purpose
I.C. On The Other Hand, Colombia's Position Is Not Supported By The TPA's Text
II. As a Merits Defense, Colombia's New Essential Security Defense Is Time Barred
II.A. No "New Facts" or "Special Circumstances" Have Arisen
II.B. Any Newly Discovered Facts Could Not Have Given Rise To An Essential Security Interest At The Time Of The Measures
III. Colombia's Eleventh-Hour Invocation Of The Essential Security Defense Was Not Made In Good Faith
III.A. Colombia Has Not Articulated Its Essential Security Interest In Good Faith
III.B. Colombia's Alleged Essential Security Interest Is Unconnected To The Measures In Dispute
IV. In The Alternative, The TPA's MFN Protection Precludes Colombia From Extinguishing Its Liability With The New Essential Security Defense
V. Request For Relief
1. Further to Procedural Order No. 9, dated 28 March 2022, Claimants hereby submit their response to Colombia's New Essential Security Defense as invoked for the first time in Colombia's Rejoinder, dated 16 February 2022, and supplemented in Colombia's letter to the Tribunal, dated 18 March 2022 ("Colombia's Letter")
2. Colombia's New Essential Security Defense relies on the incorrect assumption that this Arbitration creates "latent risk for Colombia to be deprived of a quintessential sovereign tool to investigate and punish major criminal organizations that have been jeopardizing the essential security of the Colombian State for decades." This fundamentally misconstrues Claimants' request for relief in this Arbitration. Claimants are not asking the Tribunal to "deprive" Colombia of its ability to use its Asset Forfeiture Law or to order Colombia to revoke the Asset Forfeiture Proceedings.
Rather, Claimants are asking for compensation because Colombia has unlawfully exercised its sovereign powers in an arbitrary, unreasonable, and discriminatory manner, and as a consequence (among other breaches) unlawfully expropriated Claimants' investments. Contrary to Colombia's hollow assertions, nothing in Article 22.2(b) of the TPA ("Essential Security Provision") allows Colombia to absolve itself of liability for breaching the TPA or shield it from paying Claimants compensation as a remedy. All Article 22.2(b) does is ensure Colombia can maintain its measures, however misguided and unlawful. Since Claimants are not asking for restitution, Article 22.2(b) has no impact on these proceedings. The provision does not deprive this Tribunal of jurisdiction and equally does not absolve Colombia of its liability.
3. But even if Colombia could use Article 22.2(b) to vitiate its obligations under the TPA (and it cannot), Colombia's attempt to belatedly extinguish its liability is time barred and has been brought in bad faith. Colombia has invoked the Essential Security Provision opportunistically at the eleventh hour to attempt to convert a police powers defense (which Colombia concedes is reviewable) to an New Essential Security Defense (which Colombia alleges is not reviewable). Indeed, despite two attempts, Colombia fails to identify any new circumstances that could justify its belated invocation of the New Defense. And if Colombia has in fact uncovered new evidence just before its Rejoinder, it could not have relied on this newly uncovered evidence as the basis for initiating the Asset Forfeiture Proceedings more than six years ago. The fact is Colombia did not implement the Asset Forfeiture Proceedings out of consideration for its essential security interests; had it done so, Colombia would have raised this defense before. In fact, there is no plausible way in which Colombia's measures could have furthered its stated security interest when it is undisputed that the Claimants had no role in any criminal activity.
4. Below Claimants set out their submission in five parts:
(a) Section I explains that the TPA's Essential Security Provision does not impact this Tribunal's jurisdiction or findings of liability, but only precludes the Tribunal from ordering Colombia to withdraw its measures;
(b) Section II explains that as a merits defense, Colombia's belated invocation of the Essential Security Provision is time barred;
(c) Section III establishes that Colombia has failed to invoke the Essential Security Provision in good faith because the measures that are the subject of Claimants' claims have nothing to do with the essential security interest invoked by Colombia;
(d) Section IV argues that, in the alternative, Claimants are entitled to a higher standard of protection available in other Colombian investment treaties that do not allow Colombia to escape liability on the basis of essential security; and
(e) Section V sets out Claimants' request for relief.
 Short-forms not otherwise defined herein are defined in Claimants' Memorial on the Merits and Damages, 15 June 2022 (hereinafter "Claimants' Memorial"), and Claimants' Reply Memorial, 19 September (hereinafter "Claimants' Reply").
 Rejoinder, ¶ 44.