|Amber||Amber Capital LP|
|Angostura Project||Mining project located in the Eastern Cordillera of the Andean system, within the Vetas-California gold district, approximately 70 kilometres northeast of the city of Bucaramanga, Municipality of California, Department of Santander, and 400 kilometres North of Bogotá, comprising the Angostura gold-silver deposit|
|ANLA||National Environmental Licensing Authority (Autoridad Nacional de Licencias Ambientales)|
|ANM||National Mining Agency (Agencia Nacional de Minería)|
|Annex 811||Annex 811 of the Treaty|
|Article 46||Article 46 of the ICSID Convention|
|Article 801(2)||Article 801(2) of the Treaty|
|Article 805||Article 805 of the Treaty|
|Article 811||Article 811 of the Treaty|
|Article 811(2)(b) Rule||The latter part of the sub-clause|
|Article 811(2)(b) Exceptions||The first part of the sub-clause|
|Article 814(2)||Article 814(2) of the Treaty|
|Article 821||Article 821 of the Treaty|
|Article 838||Article 838 of the Treaty|
|Article 2201(3)||Article 2201(3) of the Treaty|
|Biodiversity Convention||Covenant on Biological Diversity made in Rio on 5 June 1992|
|Bodega Project||La Bodega and La Mascota deposits|
|Calvista||Calvista Gold Corporation|
|Canada||The Government of Canada|
|Canada's Non-Disputing Party Submission||Non-Disputing Party Submission of Canada dated 27 February 2020|
|CDMB||Regional Autonomous Corporation for the Defense of the Bucaramanga Plateau (Corporación Autónoma Regional para la Defensa de la Meseta de Bucaramanga)|
|CIIPE||Intersectoral Commission for Infrastructure and Strategic Projects (Comisión Intersectorial de Infraestructura y Proyectos Estratégicos)|
|CIM||Canadian Institute of Mining, Metallurgy and Petroleum|
|CIMVAL||Canadian Institute of Mining, Metallurgy and Petroleum on Valuation of Mineral Properties|
|CJEU||Court of Justice of the European Union|
|Claimant or Eco Oro||Eco Oro Minerals Corp.|
|Claimant's Memorial||Claimant's Memorial on the Merits dated 19 March 2018|
|Claimant's Post-Hearing Brief||Claimant's Post-Hearing Brief dated 1 March 2020|
|Claimant's Rejoinder||Claimant's Rejoinder on Jurisdiction dated 5 December 2019|
|Claimant's Reply||Claimant's Reply on Merits and Counter-Memorial on Jurisdiction dated 31 May 2019|
|Claimant's Response on Bifurcation||Claimant's Observations on the Respondent's Request for Bifurcation dated 18 May 2018|
|Claimant's Response to Canada's Non-Disputing Party Submission||Eco Oro's Response to Canada's Non-Disputing Party Submission of 27 February 2020 dated 3 March 2020|
|Colombia or the Respondent||The Republic of Colombia, a sovereign State|
|Commission||Joint Commission of the Free Trade Agreement Between the Republic of Colombia and Canada|
|Commission's Decision||Joint Commission of the Free Trade Agreement Between the Republic of Colombia and Canada, Decision No. 6 (24 October 2017)|
|Comparable Companies||Ventana, Galway and Calvista|
|Comparable Transactions||Three neighbouring properties to the Angostura Project (AUX Canada's purchases between February 2011 and December 2012of all of the outstanding shares of Ventana Gold Corporation, Galway Resources Ltd, and Calvista Gold Corporation) used by Compass Lexecon to calculate the fair market value of the Project|
|Concession 3452 or the Concession||Concession Contract for the Exploration and Exploitation of a Deposit of Gold, Silver, Chromium, Zinc, Copper, Tin, Lead, Manganese, Precious Metals and Associated Minerals No. 3452 entered into on 8 February 2007 between Eco Oro and INGEOMINAS, comprising the Angostura gold and silver deposit located in the Soto Norte region of the department of Santander, within the Vetas-California gold district|
|Contributions Document||A document prepared by IAvH in 2014 titled "Contributions to the delimitation of the páramo through identification of lower limits of the ecosystem at a 1:25,000 scale and analysis of the social system of the territory"|
|CORPONOR||Regional Autonomous Corporation of the North-East Border (Corporación Autónoma Regional de la Frontera Nororiental)|
|CRA||Charles River Associates|
|CRIRSCO||Committee for Mineral Reserves International Reporting Standards|
|cut-off date||Mandatory cut-off date under the FTA: 8 September 2013|
|CVR||Contingent Value Rights|
|CL-[#]||Claimant's legal authority|
|DCF||Discounted Cash Flow|
|Decree 2820||Decree No. 2820 of 5 August 2010|
|ECODES||ECODES Ingeniería Ltda.|
|ECODES Report||ECODES Ingeniería Ltda. Report "State of Preservation of Biodiversity in the Ecosystems of the Angosturas Sector, Municipality of California, Department of Santander" dated May 2013|
|ECT||Energy Charter Treaty|
|EIA||Environmental Impact Study (Estudio de Impacto Ambiental)|
|Environment Agreement||Canada-Colombia Environment Agreement, signed on 21 November 2008 and in force on 15 August 2011|
|Extractable Minerals||Extractable minerals Eco Oro had the right to exploit|
|FET||Fair and equitable treatment|
|First Baptiste Statement||Witness Statement of Ms. Brigitte Baptiste dated 24 December 2018|
|First Behre Dolbear Report||Expert report of Behre Dolbear titled "Report on Eco Oro Minerals Corporation's Angostura Gold Project - Santander Department, Colombia" dated 19 March 2018, prepared by Mr. Bernard J. Guarnera and Dr. Robert E. Cameron|
|First Compass Lexecon Report||Expert report of Compass Lexecon titled "Valuation Assessment of the Angostura Project" dated 19 March 2018, prepared by Messrs. Pablo T. Spiller and Santiago Dellepiane A.|
|First CRA Report||Expert report of Charles River Associates (CRA) dated 24 December 2018, prepared by Dr. James C. Burrows and Dr. Tiago Duarte-Silva|
|First García Granados Statement||Witness Statement of Mr. Javier García Granados dated 24 December 2018|
|First González Aldana Statement||Witness Statement of Mr. Wilmer González Aldana dated 19 March 2018|
|First Moseley-Williams Statement||Witness Statement of Mr. Mark Moseley-Williams dated 19 March 2018|
|First Rossi Report||Expert report of Mr. Mario E. Rossi dated 24 December 2018|
|Forest-Páramo Transition||Forest-Páramo Transition Conceptual Framework study undertaken by the IAvH|
|FPS||Full protection and security|
|FTA or Treaty||Free Trade Agreement between Canada and the Republic of Colombia signed on 21 November 2008 and which entered into force on 15 August 2011|
|Galway||Galway Resources Ltd.|
|General Environmental Law||Law No. 99 of 1993|
|Greystar||Greystar Resources Limited|
|Harrington||Harrington Global Opportunities Fund Ltd.|
|Hearing||Hearing on jurisdiction, merits and damages held in Washington, D.C. from 20-24 January 2020|
|IAvH||Alexander von Humboldt Institute for Biological Resource Research (Instituto de Investigación de Recursos Biológicos Alexander von Humboldt)|
|ICSID Arbitration Rules||ICSID Rules of Procedure for Arbitration Proceedings, in force as of 10 April 2006|
|ICSID Convention||Convention on the Settlement of Investment Disputes between States and Nationals of Other States dated 18 March 1965, which entered into force on 14 October 1966|
|ICSID or the Centre||International Centre for Settlement of Investment Disputes|
|IFC||International Finance Corporation|
|ILC||International Law Commission|
|ILC Draft Articles||International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts (2001)|
|INGEOMINAS||Colombian Institute of Geology and Mining (Instituto Colombiano de Geología y Minería)|
|Investment Agreement||Investment Agreement entered into on 21 July 2016 between Eco Oro and Trexs|
|Johnson Report||Expert Report of Mr. Christopher Johnson dated 9 October 2019|
|Judgment C-35||Colombian Constitutional Court Judgment C-35 of 8 February 2016|
|LIBOR||London Inter-bank Offered Rate|
|masl||Metres above sea level|
|Memoria Técnica||IAvH 'Technical Specifications for the Territory's Comprehensive Management for the Conservation of the Páramo Jurisdicciones - Santurbán - Berlin. Incorporation of Social and Economic Aspects.' (2014)|
|MinAmbiente||Ministry of Environment|
|MINERCOL||Colombian National Mining Company (Empresa Nacional Minera Limitada, MINERCOL Ltda.)|
|Minesa||Sociedad Minera de Santander S.A.S.|
|Minister Sarmiento||Minister of Environment Luz Helena Sarmiento Villamizar|
|Minister Sarmiento Statement||Witness Statement of Ms. Luz Helena Sarmiento Villamizar dated 24 December 2018|
|MinMinas||Ministry of Mines and Energy|
|Mr. Giraldo||Mr. Luis Alberto Giraldo|
|Ms. Stylianides||Ms. Anna Stylianides|
|MST||Minimum standard of treatment|
|Ms. Wolfe||Ms. Courtney Wolfe|
|NI 43-101||National Instrument 43-101, Standards of Disclosure for Mineral Projects|
|Notice of Intent||Notice of Intent to submit a claim to arbitration pursuant to Article 821(2)(c) of the FTA dated 7 March 2016|
|Participating Shareholders||Trexs and certain existing shareholders of Eco Oro holding approximately 37% of Eco Oro's issued and outstanding common shares prior to the closing of the Second Tranche|
|Parties||The Claimant and the Respondent|
|Paulson||Paulson & Co. Inc.|
|PDAC||Prospectors and Developers Association of Canada|
|PEA||Preliminary Economic Assessment|
|Petitioners||Comité para la Defensa del Agua y el Páramo de Santurbán; Center for International Environmental Law (CIEL); Inter-American Association for the Defense of the Environment (AIDA); MiningWatch Canada; Institute for Policy Studies (IPS); and Centre for Research on Multinational Corporations (SOMO)|
|Petitioners' Application||Petitioners' application for leave to file a non-disputing party submission pursuant to Annex 831 of the FTA and Rule 37(2) of the ICSID Arbitration Rules dated 19 December 2018|
|PIN||Project of National Interest (Proyecto de Interés Nacional)|
|PINEs||Projects of National and Strategic Interest (Proyectos de Interés Nacional y Estratégico)|
|PMA||Environmental Management Plan (Plan de Manejo Ambiental)|
|Political Constitution||Colombia's Political Constitution of 1991|
|PTO||Construction and Works Plan (Plan de Trabajo y Obras)|
|Ramsar Convention||Ramsar Convention on Wetlands of International Importance of 1971|
|Request for Arbitration||Request for Arbitration dated 8 December 2016|
|Requisitioning Shareholders||Ms. Wolfe and Harrington|
|Respondent's Counter-Memorial||Respondent's Counter-Memorial on the Merits dated 24 December 2018|
|Respondent's Memorial||Respondent's Memorial on Jurisdiction dated 24 December 2018|
|Respondent's Post-Hearing Brief||Respondent's Post-Hearing Brief dated 1 March 2020|
|Respondent's Rejoinder||Respondent's Rejoinder on the Merits dated 9 October 2019|
|Respondent's Reply||Respondent's Reply on Jurisdiction dated 9 October 2019|
|Respondent's Request for Bifurcation||Respondent's Request for Bifurcation dated 18 April 2018|
|Respondent's Response to Canada's Non-Disputing Party Submission||Colombia's Response to Canada's Non-Disputing Party Submission dated 3 March 2020|
|Ricaurte Opinion||Legal Opinion of Professor Margarita Ricaurte dated 31 May 2019|
|RL-[#]||Respondent's legal authority|
|Sarmiento Pinzon Statement||Witness Statement of Mr. Carlos Enrique Sarmiento Pinzon dated 9 October 2019|
|Second Baptiste Statement||Second Witness Statement of Ms. Brigitte Baptiste dated 9 October 2019|
|Second Behre Dolbear Report||Expert report of Behre Dolbear dated 31 May 2019, prepared by Mr. Bernard J. Guarnera, Mr. Mark K. Jorgensen and Dr. Robert E. Cameron|
|Second Compass Lexecon Report||Expert report of Compass Lexecon titled "Valuation Assessment of the Angostura Project" dated 31 May 2019, prepared by Dr. Manuel A. Abdala and Mr. Pablo T. Spiller|
|Second CRA Report||Expert report of Charles River Associates (CRA) dated 9 October 2019, prepared by Dr. James C. Burrows and Dr. Tiago Duarte-Silva|
|Second García Granados Statement||Witness Statement of Mr. Javier García Granados dated 9 October 2019|
|Second González Aldana Statement||Witness Statement of Mr. Wilmer González Aldana dated 31 May 2019|
|Second Moseley-Williams Statement||Witness Statement of Mr. Mark Moseley-Williams dated 30 May 2019|
|Second Rossi Report||Expert report of Mr. Mario E. Rossi dated 9 October 2019|
|Third Behre Dolbear Report||Expert Report of Behre Dolbear dated 18 December 2019, prepared by Mr. Bernard J. Guarnera, Mr. Mark K. Jorgensen and Dr. Robert E. Cameron|
|Trexs||Trexs Investments LLC|
|Tr. Day [#] ([Speaker(s)]), [page:line]||Transcript of the Hearing (considering the Claimant's Transcript corrections in the Annex to its Post-Hearing Brief, which were not disputed by the Respondent)|
|Tribunal||Arbitral tribunal constituted on 11 September 2017 in ICSID Case No. ARB/16/41|
|Ulloa Statement||Witness Statement of Ms. María Isabel Ulloa dated 24 December 2018|
|UNCTAD||United Nations Conference on Trade and Development|
|UNESCO||United Nations Educational, Scientific and Cultural Organization|
|VCLT||Vienna Convention on the Law of Treaties of 23 May 1969|
|Ventana||Ventana Gold Corporation|
|Vivero Arciniegas Report||Expert Opinion of Prof. Felipe de Vivero Arciniegas dated 9 October 2019|
|2007 Atlas||2007 IAvH Páramo Atlas|
|2090 Atlas||Map attached to Resolution 2090, which was on a scale of 1:25,000 and was stated to be an integral part thereof|
a. Ms. Juliet Blanch, a national of the United Kingdom, President, appointed by the Secretary-General pursuant to the Parties' agreement. Ms. Blanch's contact details are as follows:
Ms. Juliet Blanch
3 rd Floor South
b. Professor Horacio A. Grigera Naón, a national of Argentina, appointed by the Claimant. Professor Grigera Naón's contact details are as follows:
Professor Horacio A. Grigera Naón
5224 Elliott Road
United States of America
c. Professor Philippe Sands QC, a national of France, the United Kingdom and Mauritius,7 appointed by the Respondent. Professor Sands' contact details are as follows:
Professor Philippe Sands QC
London WC1R 5LN
"[O]n the basis of the strikingly limited Application, the Tribunal does not find that the Petitioners have met the requirements of Arbitration Rule 37(2) and Annex 831 of the FTA, or even sought to meet those requirements. Those provisions impose on a petitioner a duty to set out reasoned arguments, and none are sufficiently present."
Ms. Juliet Blanch President
Prof. Horacio A. Grigera Naón Arbitrator
Prof. Philippe Sands QC Arbitrator
Assistant to the President of the Tribunal:
Mr. João Vilhena Valério Assistant to the President of the Tribunal
Ms. Ana Constanza Conover Blancas Secretary of the Tribunal
For the Claimant:
Mr. Nigel Blackaby Freshfields Bruckhaus Deringer US LLP
Ms. Caroline Richard Freshfields Bruckhaus Deringer US LLP
Mr. Alexander Wilbraham Freshfields Bruckhaus Deringer US LLP
Mr. Lee Rovinescu Freshfields Bruckhaus Deringer US LLP
Mr. Juan Pedro Pomés Freshfields Bruckhaus Deringer US LLP
Mr. Elliot Luke Freshfields Bruckhaus Deringer US LLP
Ms. Amy Tan Freshfields Bruckhaus Deringer US LLP
Mr. Nicolás Córdoba Freshfields Bruckhaus Deringer US LLP
Ms. Brianna Gorence Freshfields Bruckhaus Deringer US LLP
Mr. Jowkuell Arias-Tapia Freshfields Bruckhaus Deringer US LLP
Mr. Reynaldo Pastor Freshfields Bruckhaus Deringer US LLP
Ms. Sandra Diaz Freshfields Bruckhaus Deringer US LLP
Mr. José Vicente Zapata Holland & Knight LLP
Mr. Juan Israel Casallas Holland & Knight LLP
Ms. Anna Stylianides Eco Oro Minerals Corp.
Mr. Paul Robertson Eco Oro Minerals Corp.
Mr. Diego Orduz Eco Oro Minerals Corp.
Ms. Martha Arenas Eco Oro Minerals Corp.
Mr. Rafael Ardila Eco Oro Minerals Corp.
Mr. Pierre Amariglio Eco Oro Minerals Corp.
Mr. Mark Moseley-Williams
Mr. Wilmer González Aldana
Prof. Pablo Spiller Compass Lexecon
Dr. Manuel Abdala Compass Lexecon
Ms. Carla Chavich Compass Lexecon
Mr. Stephen Hurley Compass Lexecon
Mr. Bernard J. Guarnera Behre Dolbear
Mr. Mark Jorgensen Behre Dolbear
Dr. Robert Cameron Behre Dolbear
Prof. Margarita Ricaurte Ricaurte Rueda Abogados
Ms. T-zady Guzman FTI Consulting
For the Respondent:
Mr. Fernando Mantilla-Serrano Latham & Watkins LLP
Mr. John Adam Latham & Watkins LLP
Mr. Samuel Pape Latham & Watkins LLP
Mr. Diego Romero Latham & Watkins LLP
Ms. Paloma García Guerra Latham & Watkins LLP
Mr. Ignacio Stratta Latham & Watkins LLP
Mr. Hugo Varenne Latham & Watkins LLP
Ms. Ana María Ordóñez Puentes Agencia Nacional de Defensa Jurídica del Estado, Republic of Colombia
Mr. Camilo Andrés Ayala Patiño Oficina Comercial del Ministerio de Comercio, Industria y Turismo de Colombia, Washington D.C.
Ms. Brigitte Baptiste
Mr. Javier García Granados
Mr. Carlos Sarmiento
Ms. Luz Helena Sarmiento
Mr. Felipe de Vivero Arciniegas
Mr. Christopher Johnson
Mr. Mario E. Rossi
Mr. James C. Burrows Charles River Associates
Mr. Tiago Duarte-Silva Charles River Associates
Ms. Dawn Larson Worldwide Reporting, LLP
Ms. Marta Rinaldi D-R Esteno
Ms. María Eliana Da Silva D-R Esteno
Ms. Silvia Colla
Mr. Daniel Giglio
Mr. Charles Roberts
On behalf of the Claimant:
Mr. Mark Moseley-Williams
Mr. Wilmer González Aldana
Prof. Margarita Ricaurte Ricaurte Rueda Abogados
Mr. Mark Jorgensen Behre Dolbear
Mr. Bernard J. Guarnera Behre Dolbear
Dr. Robert Cameron Behre Dolbear
Dr. Manuel Abdala Compass Lexecon
Prof. Pablo Spiller Compass Lexecon
On behalf of the Respondent:
Ms. Brigitte Baptiste
Mr. Javier García Granados
Mr. Carlos Sarmiento
Ms. Luz Helena Sarmiento
Mr. Felipe de Vivero Arciniegas
Mr. Christopher Johnson
Mr. Mario E. Rossi
Mr. James C. Burrows Charles River Associates
Mr. Tiago Duarte-Silva Charles River Associates
CH-1: (A) Presentation for Claimant's Opening Statement (20 January 2020); (B) Chronology of relevant facts (20 January 2020);
CH-2: Demonstrative summarizing Felipe de Vivero's engagements by Colombian State entities in 2017-2019;
CH-3 (ENG): Presentation of Professor Margarita Ricaurte Rueda (23 January 2020) (ENG);
CH-3 (SPA): Presentación de la Profesora Margarita Ricaurte Rueda (23 de enero de 2020) (SPA);
CH-4: Eco Oro press releases relied upon in Compass Lexecon's presentation of 24 January 2020 (various dates);
CH-5: Presentation of Behre Dolbear (23 January 2020);
CH-6: Demonstrative showing (i) differences in Christopher Johnson's calculations between his report of 9 October 2019 and presentation of 23 January 2020, and (ii) a table of the capital expenditure contingency allowances from various preliminary economic assessments (various dates);
CH-7: Presentation of Compass Lexecon (24 January 2020).
> Respondent's Opening Statement;
> Mario E. Rossi Opening Slides;
> Felipe de Vivero Presentation;
> CRA Presentation;
> Christopher Johnson Presentation; Johnson Errata Corrections to Johnson Report;
CRA Errata 1 Updated Table 7-1: Valuation of the Angostura Project as of 8/8/2016, Based on the Value of Comparable Assets with Unweighted Resources; and
CRA Errata 2 CRA-97 Summary of Valuation of theAngostura Project Based on the Value of Comparable Assets (Updated).
"QUESTION 1 - The arbitral record incorporates references to decisions of the Colombian courts or to Colombian law in connection with matters apparently connected with disputed issues in this arbitration. What legal relevance should the Tribunal attribute to such references given the fact that the claims in this case have been made under international treaties/international law?
QUESTION 2 - Article 2201 of the Canada-Colombia Free Trade Agreement provides, inter alia, as follows:
'3. For the purposes of Chapter Eight (Investment), subject to the requirement that such measures are not applied in a manner that constitute arbitrary or unjustifiable discrimination between investment or between investors, or a disguised restriction on international trade or investment, nothing in this Agreement shall be construed to prevent a Party from adopting or enforcing measures necessary:
a. To protect protect human, animal or plant life or health, which the Parties understand to include environmental measures necessary to protect human, animal or plant life and health;
b. To ensure compliance with laws and regulations that are not inconsistent with this Agreement; or
c. For the conservation of living or non-living exhaustible natural resources.
4. Nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining measures relating to nationals of the other Party aimed at preserving public order, subject to the requirement that such measures are not applied in a manner that constitutes arbitrary or unjustifiable discrimination. Without prejudice to the foregoing, the Parties understand that the rights and obligations under this Agreement, in particular the rights of investors under Chapter Eight (Investment), remain applicable to such measures.'
What is the effect of the second sentence of the exception in Article 2201(4) (as emphasised in italics), and its absence from the exception in Article 2201(3), on the application of Chapter Eight (Investment) to the rights of investors in relation to measures to which the Article 2201(3) exception is applicable? It would be helpful if the assessment could take into account other treaty practise of Canada and Colombia.
QUESTION 3 - What, if any, is the application and effect of the 'margin of appreciation enjoyed by national regulatory agencies when dealing with public policy determinations' (ICSID Case No. ARB/10/7, Phillip Morris v. Uruguay, Award, 8 July 2016 (Authority RL-102), ¶ 388) to the delimitation of the páramo?
QUESTION 4 - Both Colombian legal experts addressed Constitutional Court Decision C-339/02 of 7 May 2002 (Exhibit C-82) in their testimony on Day 4. In Decision C- 339/02, the Constitutional Court addresses a constitutional challenge against articles 3 (partially), 4, 18 (partially), 34, 35 (a) and (c) (partially), and 36 (partially) of the Mining Code 2001. This Decision, inter alia, provides as follows:
Article 34(1) prohibits mining exploitation and exploration works in such areas that are delimited and declared, in accordance with the regulations in force, as areas for the protection of renewable natural resources or the environment, or that expressly exclude mining activities. Up to this point, there are no objections to the provision, since it is in agreement with the principles set out in the Constitution for environmental and natural resource protection, which were discussed at the beginning of these recitals.
Article 34(2) indicates that excluded areas comprise the following: a) The system of national natural parks; b) regional natural parks, and c) reserve forest areas. The aim is to protect biodiversity, given the great importance that Colombia has worldwide, as acknowledged by the Court in analyzing the issue. The Court also explains that, besides the areas excluded in this Law, there may be others, whether already declared or to be declared as such in the future by the environmental authority.
Of course, excluded areas must be clearly geographically delimited by the environmental authority, in compliance with Article 5 of Law 99 of 1993. Provision is also made for cooperation by the mining authority in areas of mining interest, which is in keeping with the principle of priority protection of the country's biodiversity, along with sustainable exploitation, in accordance with universal and sustainable development principles included in the Rio Declaration on Environment and Development dated June 1992, which was ratified by Colombia.
The Court considers it worth mentioning that the mining authority must cooperate with the environmental authority, but this duty of cooperation does not limit or condition the exercise of the powers of the environmental authority, which is the one authorized to establish excluded areas. Thus, the operative part will make the enforceability of Article 34(2) of Law No. 685 of 2001 subject to certain conditions.
When applying paragraph 3, one must follow the precautionary principle, a principle which can be understood with the expression 'in dubio pro ambiente'. The same principle must be applied with respect to the fourth paragraph of article 34, in accordance with the principle number 25 of the Rio Declaration that states: 'Peace, development and environmental protection are interdependent and indivisible'.
Assuming that Colombia is observing the precautionary principle referred to above — i.e., in dubio pro ambiente — so far as the delimitation of the páramos is concerned, does that have any impact on the consideration of its rights and obligations under international law ?
Specifically, assuming that the fact that it has yet to delimit the páramo (see, e.g., Exhibit C-455) is legitimate and grounded on Colombia's duty not to allow activities that pose a risk irreversibly to affect the environment and its natural resources, does that prevent Colombia from incurring any possible responsibility under international law in case it is established that the investors' rights have been violated?
QUESTION 5 - In discussing Constitutional Court Decision C-35 both Colombian legal experts referred to the right of many parties affected by the decision to seek compensation from the lower courts. What domestic legal options were available to a diligent investor to obtain compensation after the Constitutional Court's Decision C-35?
QUESTION 6 - The parties are further invited to make any further submissions they believe relevant, if and only to the extent they believe it would be helpful to the Tribunal, arising out of the evidentiary hearing which took place between 20 - 24 January 2020."
"Having carefully reviewed and considered the parties' observations, the Tribunal concludes that it would be assisted by receiving a written submission from Canada that does not exceed 8 pages and is limited to the questions raised in the Tribunal's Procedural Order No. 11 of 28 January 2020.
In view of considerable time constraints related to the Tribunal's deliberations scheduled for 5 March 2020 in the present proceeding, the Tribunal is obliged to request that the written submission from Canada be received not later than Thursday, 27 February 2020. The parties will be allowed to submit a brief reply submission by Tuesday, 3 March 2020 which shall not exceed 4 pages. The Tribunal apologises for the short time afforded to you in this regard, which is necessary to allow it to meet the demands of the schedule in this arbitration.
The Tribunal notes that the deliberations it will hold on 5 March will be preliminary in nature. The Tribunal may raise further questions for the parties arising out of such initial deliberations."
(a) a declaration that:
(i) Colombia has breached Article 805 of the Treaty by unlawfully expropriating Eco Oro's investment in Colombia; and
(ii) Colombia has breached Article 811 of the Treaty by failing to accord Eco Oro's investment in Colombia the minimum standard of treatment;
(b) an order that Colombia compensate Eco Oro for its breaches of the Treaty and international law in an amount of USD 696 million;
(c) pre-award interest on (b) at a commercially reasonable rate of 6.6 percent per annum calculated from the Valuation Date of 8 August 2016 until the date of the Tribunal's Award, compounded semi-annually, or at such other rate and compounding period as the Tribunal determines will ensure full reparation;
(d) post-award compound interest on (b) and (c) from the date of the Tribunal's Award at such rate as the Tribunal determines will ensure full reparation;
(e) a declaration that:
(i) the award of damages and interest in (b), (c) and (d) is made net of applicable Colombian taxes; and
(ii) Colombia may not deduct taxes in respect of the payment of the award of damages and interest in (b), (c) and (d);
(f) an order that Colombia indemnify the Claimant in respect of any double taxation liability that would arise in Canada or elsewhere that would not have arisen but for Colombia's adverse measures;
(g) an order that Colombia indemnify the Claimant in respect of any costs that it incurs in the course of remediating the area of Concession 3452;
(h) such other relief as the Tribunal considers appropriate; and
(i) an order that Colombia pay all of the costs and expenses of this arbitration, including Eco Oro's legal and expert fees, the fees and expenses of any experts appointed by the Tribunal, the fees and expenses of the Tribunal and ICSID's other costs and fees.12
Based on the above, the Republic of Colombia respectfully requests the Tribunal to:
(a) Dismiss Eco Oro's Claims in their entirety and declare that there is no basis of liability accruing to the Republic of Colombia under the FTA, including but not limited as a result of:
(i) Any claim or violation by the Republic of Colombia of Article 805 of the FTA;
(ii) Any claim or violation by the Republic of Colombia of Article 811 of the FTA;
(iii) Any claim that Eco Oro suffered losses for which the Republic of Colombia could be liable;
(b) Order that Eco Oro pay the Republic of Colombia all costs associated with these proceedings, including arbitration costs and all professional fees and disbursements, as well as the fees of the arbitral tribunal, plus interest thereon; and
(c) Grant such relief that the Tribunal may deem just and appropriate.15
a. October 2006: "award from those responsible for the organization of the [2006 Mining] Fair, and in the presence of the President of the Republic, in recognition of [Greystar's] outstanding performance during its exploration stage";29
b. 1 October 2015: CDMB Award for Environmental Excellence;30 and
c. 13 October 2016: CDBM Award for Environmental Performance of Cleanest Production (P+L).31
"Ecology contains an essential core, it being understood by this that part that is absolutely necessary so that legally protected interests and what gives rise to it turn out to be real and effectively act as a guardian. The essential content is overtaken or not recognized when the right is submitted to the limitations that make it unfeasible, making it more difficult beyond what is reasonable or divesting it of the necessary protection. The rights to work, private property, and freedom of business enjoy special protection, provided that there exists a strict respect of the ecological function, this is the duty to safeguard the environment due to a fundamental constitutional right. "
a. National Mining Company - MINERCOL Ltda. ("MINERCOL"): between 2001 and 2004;48
b. Colombian Geology and Mining Institute - INGEOMINAS ("INGEOMINAS"): between 2004 and 2011;49 and
c. National Mining Agency ("ANM"): between 2011 and the present.50
"Exploration and exploitation activities shall not be performed in the manner provided in the above articles: [...]
e) In other areas where the performance of mining activities is prohibited by the Code on Renewable Natural Resources and Environmental Protection and other applicable provisions."
"Section 16. Protection of special management zones. In preparing and presenting the program it shall be specified that the páramo areas, cloud forests and areas of influence of water springs and mountain headwater clusters shall be acquired as a priority by environmental entities of the relevant jurisdiction, which will carry out the studies necessary to determine their actual capacity to supply environmental goods and services to initiate a recovery, protection and conservation process." [Tribunal's emphasis]
"ARTICLE 1. PURPOSES. The public interest purpose of this Code is to promote the technical exploration and exploitation of privately-held and state-owned mining resources; to foster such activities in order to meet the needs of domestic and foreign demand for such resources, and to ensure that these resources are exploited in accordance with the principles and regulations governing the rational exploitation of non-renewable natural resources and the environment, focusing on sustainable development and the country's social and economic progress as a comprehensive notion.
ARTICLE 15. NATURE OF THE BENEFICIARY'S RIGHT. The concession contract and other titles issued by the Government referred to in the preceding Article shall not grant the beneficiary any property right on the minerals 'on site,' but the right to exclusively and temporarily determine the existence of minerals in exploitable quantities and qualities within the covered area, and to take such minerals through extraction or abstraction, and the right to subject third party plots of lands to the easements required for the efficient performance of such activities.
ARTICLE 34. AREAS THAT MAY BE EXCLUDED FROM MINING. Mining exploration and exploitation works and projects may not be carried out in areas declared and delimited in accordance with the legal framework currently in force for the protection and development of renewable natural resources or the environment and which, in accordance with the relevant legal provisions, expressly exclude said works and projects. The aforementioned exclusion zones will be those constituted in accordance with the legal provisions in force, such as areas that comprise the system of national natural parks, regional natural parks and forest reserve areas. To that end, these areas should be geographically delimited by the environmental authority on the basis of technical, social and environmental studies with the collaboration of the mining authority, in those areas of mining interest.
In order for mining exploration and exploitation works and projects to be excluded or restricted in areas for the protection and development of renewable natural resources or the environment, the act by which these are declared must be expressly based on studies that establish the incompatibility of or need to restrict mining activities. However, by means of a well-founded administrative act of the environmental authority that orders the subtraction of the required area, the mining authority may authorize that in the areas referred to in this article, with the exception of parks, mining activities may be carried out in a restricted manner or only by means of specified extraction methods and systems that do not affect the objectives of the exclusion zone. To that end, the interested party in the Concession Contract must present studies that demonstrate the compatibility of mining activities with such objectives.
ARTICLE 36. EFFECTS OF THE EXCLUSION OR RESTRICTION.
In concession contracts, the areas, plots of land and courses where, pursuant to the above articles, mining activities are prohibited shall be deemed excluded or restricted by operation of law or conditioned by the granting of special permits or authorizations.
This exclusion or restriction need not be declared by any authority whatsoever, or be expressly stated in acts and agreements, nor may be subject to any waiver by the bidder or concessionaire of such areas or plots of land. If such areas or plots of lands were actually the site of a concessionaire's works, the mining authority shall order they be immediately removed and cleared, without awarding any payment, compensation or damages whatsoever for this reason, notwithstanding the proceedings the competent authorities may commence in each case where applicable.
ARTICLE 45. DEFINITION.
The mining concession contract is the agreement entered into between the State and an individual to carry out, at the individual's expense and risk, exploration works for state-owned minerals that may be found within a delimited area, and to exploit them under the terms and conditions established in this Code. This agreement differs from public works contracts and public services concession contracts. The phases comprised by the concession contract within its purposes are technical exploration, economic exploitation, mineral beneficiation at the concessionaire's expense and risk and closure or ceasing of the relevant works and construction.
ARTICLE 46. APPLICABLE LAW.
The mining laws in force at the time that the concession contract is perfected will be applicable throughout the term of its execution and extensions. If said laws are modified or added to at a later date, these laws will apply to the concessionaire only insofar as they broaden, confirm or improve its rights with the exception of those regulations that contemplate the modification of the anticipated economic revenues to the State or Territorial Entities.
ARTICLE 197. CONSTITUTION AND EXERCISE OF THE RIGHT. The conclusion of a concession contract and its registration in the National Mining Registry are regulated by the provisions of this Code.
For the execution of this contract, before the commencement and performance of the exploitation work, all environmental requirements and conditions set forth in this Chapter, and for those not foreseen therein, those set forth in the general environmental regulations, should be met." [Tribunal's emphasis]
"As to the duration of the contract to be signed and the plate it will have, it is observed that the oldest title is permit No. 3452, registered in the National Mining Register on August 14, 1990; consequently, it will be this title that will determine the plate and the duration of the contract to be signed, which has an execution period of 16 years, therefore said term must be discounted from the title to be granted, which will have a remaining total duration of 14 years counted from the registration of the contract to be signed, and will have an exploration stage of 3 years, 2 years of construction and assembly, and the remainder will be the exploitation period, the above in response to the approved single exploration and exploitation program.
The term of the contract for the consolidated areas was calculated in accordance with Article 103 of [the 2001 Mining Code]." [Tribunal's emphasis]
"Mining exploration and exploitation works and projects may not be carried out in areas declared and delimited in accordance with the legal framework currently in force for the protection and development of renewable natural resources or the environment.
The aforementioned exclusion zones will be those that have been constituted or will be established in accordance with the legal provisions in force, such as areas that comprise the system of national natural parks, regional natural parks, protected forest reserve areas and other forest reserve areas, páramo ecosystems, and the wetlands indicated in the list of international importance of the Ramsar Convention. To that end, these areas should be geographically delimited by the environmental authority on the basis of technical, social and environmental studies. The páramo ecosystems shall be identified in accordance with the cartographic information provided by the Alexander Von Humboldt Investigation Institute."
"If on the effective date of this law, any construction and assembly or exploitation activities are being undertaken subject to a mining title and an environmental license or their equivalent in areas which were not previously excluded, such activities shall be allowed until their expiration, but no extensions shall be granted with regard to such titles."
"This project has a social and economic impact in the regions where the operations are located and in the country, which translates into benefits such as the creation of new jobs, royalties and investment in works that will benefit the region.
As the project involves polymetallic sulphides, the techniques required for the exploration, exploitation and extractive metallurgy involve the use of chemical methods to treat the mineral ore that have an environmental impact, which is a very sensitive subject for the communities that are directly affected and, therefore, stricter verification and compliance with the technical, legal and economic obligations is required in order to maximize the use of the reserves with the least possible environmental impact.
In accordance with the bioclimatic characterization, the project's geographical location requires special attention from the Colombian Government, as public opinion has shown great interest in the effects it might have on the ecosystems and the communities that would be affected by the exploration works.
Pursuant to the criteria established in Resolution No. 955 dated November 21, 2007, INGEOMINAS considers this to be a project of national interest as it meets the following requirements:
1. Large size with a high level of production.
2. High operating, technological and financial capacity.
3. Production is primarily intended for international markets.
4. It generates important economic resources for the country and the regions where the operations are located."
"Paragraph 1. In the event that the environmental authorities have conducted, within their areas of jurisdiction on the current status of the páramos and approved the respective environmental management plans, the identification and cartographic delimitation of the páramo ecosystem will be the one set forth in said studies and plans prepared; and therefore, it will be the one applicable for all legal purposes, provided the cartographic scale utilized for delimitation is equal to or more detailed than the 1:25,000 scale, and the elevation that was defined as the lower altitudinal limit for the ecosystem is not increased, nor is the extent of the total established area decreased, according to the identification made at the cartography 1:250,000 scale provided by the Alexander von Humboldt Research Institute of Biological Resources.
Paragraph 2. The páramo ecosystems that have been declared in a category of protected area will maintain that condition. However, under no circumstance may mining activities or any other that are incompatible with these ecosystems may be authorized.
Paragraph 3. The cartography adopted through this resolution will be available for consultation by the interested parties on the website of the Ministry of Environment, Housing and Territorial Development."
"The páramo and wetland ecosystems should be delineated to a scale 1:25,000 based on technical, economic, social and environmental studies adopted by the Ministry of Environment, Housing and Territorial Development or by whoever acts in that capacity. The delineation will be adopted by said entity through an administrative act.
The Regional Autonomous Corporations, the Sustainable Development Corporations, large urban centers and the Public Environmental Institutions shall undertake the process of zoning, regulation and determination of the regime of uses of these ecosystems, based on said delineation, in accordance with the superior regulations and conforming to the criteria and guidelines outlined by the Ministry of Environment, Housing and Territorial Development or by whoever acts in that capacity. For this, they shall have a period of up to three (3) years from the date of completion of the demarcation.
Paragraph 1. No agricultural activities, exploration or exploitation of hydrocarbons and minerals, nor construction of hydrocarbon refineries shall be undertaken in the páramos ecosystems. For these purposes, the cartography contained in the Atlas of Colombian Páramos by the Alexander von Humboldt Investigations Institute will be considered as a minimum reference, until a more detailed scale cartography has been obtained.
Paragraph 2. In wetland ecosystems, agricultural activities, high-impact hydrocarbon and mineral exploration and exploitation activities may be restricted partially or completely on the basis of technical, economic, social and environmental studies adopted by the Ministry of the Environment, Housing and Territorial Development or any other entity acting in its place. Within ninety (90) calendar days of the enactment of this Law, the National Government shall set the regulations regarding the applicable criteria and procedures. Under no circumstances may these activities be conducted in wetlands specified in the list of wetlands of international importance of the RAMSAR Convention."112
"Currently, the requirements for declaring páramo ecosystems throughout the country, as reflected in the law in force have not been satisfied. Although the transitional regi[m]e in [Law 1450] requires that the cartography set out in the von Humboldt Institute's Atlas to be used as a minimum reference, at no point does it determine that such cartography established the areas excluded from mining. Finally, the position of the control organs in relation to the protection of natural resources is clear to this Office. Thus, the precautionary principle constitutes one of the fundamental tenets of Colombian environmental policy. However, such principle cannot disregard acquired rights, in accordance with Article 58 of the Political Constitution."
"First, I would like to insist and clarify that the delimitation to which we are permanently referring is an administrative act by the Ministry of Environment, the environmental authority, through which a specific legal regime for the high mountain territories is adopted. It is not the delimitation of an ecosystem for academic reasons or for the exclusive purpose of conservation; it is a very unexpected policy decision in the history of this country which excludes economic activities in about 3 million hectares of high mountain.
Such delimitation, as an administrative act, was ordered by law - a law that was first established by the former mining code, which has been repealed. The law was more recently established in the development plan law, so it constitutes a fully effective mandate from Congress giving powers and instructions to the Ministry of Environment, the autonomous regional corporations and the Humboldt Institute."
"The changes that have taken place around the Angostura Project are translated, among others, in that it is being led under a new philosophy and a new strategic direction, nurtures itself from learning and knowledge of the experiences and mistakes of the past. Equally behind this project are new investors with a more human and environmental outlook; there is a new Board of Directors with the participation of Colombians interested in marking the development of this country and a new team mostly made up of Santandereans.
You, Minister, must be aware of the abysmal differences between the old Greystar open-cast project from a technical and environmental point of view, and today's Eco [Oro] underground project. But perhaps, we have not made a big enough effort you [sic] pick up the feeling, the mood, the soul of those who day by day fight. Our company takes it from there and shapes, with realities, the dreams of thousands of families of the needy province of Soto Norte.
Our identity is authentic and genuinely Colombian, and like you Dr. Amilkar, we are proud of it: for no reason - not even for gold - would we be at the forefront of a project that could undermine or jeopardise our land and our people."
"Based on the evidence of the validity of the applicability of Laws No. 1382 of 2010 and No. 1450 of 2011 to concession agreement No. 3452, how the legal exclusion indicated therein is to be put into practice should be considered, with the elements available to the mining authority and based on the criteria of reasonableness, proportionality and responsibility.
Hence, and in response to the arguments put forward by the mining title holder in its petition for reversal, it is necessary to examine the rationality and proportionality of the decision contained in Resolution No. VSC-002, dated August 8, 2012, based on the undeniable fact that, at present, Article 202 of Law No. 1450 of 2011 has not been developed, so there is no map at a more detailed scale to provide the mining authority with solid arguments to delimit with absolute certainty the páramo that the resolution is intended to protect.
As a result, the decision in Resolution No. VSC-002, dated August 8, 2012, must be intended to protect both the collective right to the environment represented by the preservation of the páramo and the right of the holder of the mining title to preserve an area whose legal status is uncertain, because it cannot be said with complete certainty, due to the absence of technical parameters, that it is located within the páramo.
However, the precautionary and prudent action that must be taken by the government agency concerning collective rights cannot go so far as to threaten subjective rights. Hence, the instruments provided for by the legal system have to be used to create conditions to suspend rights so that, when an uncertain condition is satisfied, the right is either granted or forfeited.
Accordingly, and in response to the arguments put forward by the holder of the mining title in its petition for reversal filed under No. 2012-261-026565-2, it is clear that the delimitation of the páramo ecosystem based on the map of the Alexander von Humboldt Research Institute is temporary until the competent environmental authority creates the final delimitation at a scale of 1:25,000 after carrying out the technical, economic, social and environmental studies referred to in Article 202 of Law No. 1450 of 2011. For this reason, the mining authority determination must be in line with said condition. Therefore, the mining authority considers it appropriate to adjust Article 1 of Resolution No. VSC-002 of 2012 and, therefore, will modify it to extend the exploration stage of mining concession agreement No. 3452 of 2007, suspending exploration activities in the area overlapping with the páramo, in accordance with the delimitation based on the map in the Páramo Atlas of Colombia by the Alexander von Humboldt Institute, until the Ministry of the Environment and Sustainable Development or the entity acting in its capacity issues the final delimitation of the páramo area in accordance with Article 202 of Law No. 1450 of 2011. This will serve to ensure the effective enforcement of the prohibition on mining activities in páramo areas contained in Article 202 of Law No. 1450 of 2011.
[Eco Oro] may not carry out exploratory activities in the páramo area pursuant to Article 202 of Law No. 1450 of 2011, until the Ministry of the Environment and Sustainable Development or the entity acting in its capacity issues the final delimitation to a scale of 1:25,000." [Tribunal's emphasis]
"The scope of science's role in determining and fulfilling society's requirements will always be partial, first because that is the nature of knowledge, and second because the scientific research sector in Colombia and in the Environmental Sector is very weak. The law directs us to produce the information necessary to delimit the páramo, but fails to provide us with the minimum tools or instruments to do so. During the first twelve months of that process, we really have to aggressively draw on the funding on which we depend in order to commence that process, which includes building a series of criteria and academic conferences that enable us to do our best.
The páramo demarcation process required by law is of national scale - this is very important - and the Institute must provide the requisite knowledge so that all the páramos of the country - thirty-four páramo complexes - may be delimited over the years, in a way that their biodiversity and ecological function is protected. For us, it is impossible, from a scientific point of view, to attain the detailed zoning or micro-zoning referred to by Alfredo Molina at the beginning of the session, since Colombia's poor information systems and handling and processing of environmental information are terribly, terribly underdeveloped. We strive to abide by the law starting from a national vision and from a process of estimation at successive, more detailed, scales, reach then more precise estimations, which will in any case always contain a significant level of uncertainty for decision-making processes, and which pave the way for the required processes of agreement.
Up to now, the Institute has made no delimitation proposal, no. I am sure that any member of society may decipher, with the existing data, the boundaries and characteristics of the páramo. But from our point of view, we have an ecological and ecosystemic model with a 1:100,000 scale which is still extremely inaccurate. Based on the information available which will be gathered in the upcoming days, we will surely have to debate which delimitation is required by law, even with a 1:25,000 scale, which is probably not enough for the need or urgency of decision-making in specific points such as the Vetas and California municipalities.
Now then, we have a great willingness and the time necessary to produce, let's say, the best state-of-the-art knowledge on the region's biology and ecosystem, and to discuss the rest of the information on social and economic studies. We also want to understand, very well, the dependence of the communities on the páramo's ecosystems and their lifestyles. A few days ago, we were in the countryside - specifically, in Vetas and Berlín - and we were told to leave. I perfectly understand the tension that we are working with, and it is absolutely not our intention to cause any conflict with the community at all, much less for the sake of a healthy environment built by local communities and minorities that depend on their daily activities to survive, but we also have to comply with the law. "
"Avoid ideologization of the debate and make decisions based on comprehensive supporting studies; [...] Regularly share any progress made in the zoning and delimitation process for the sake of transparency; [...] Recognize any consolidated situations and vested rights to prevent the filing of legal claims against the Colombian state; [...] The National Mining Agency is required to proceed with caution to refrain from rejecting proposals or terminating agreements if there are conditions - such as the decisions made by the Ministry of the Environment and Sustainable Development - that may threaten citizens and companies that, relying on the principle of confianza legítima, have approached the State to propose or develop mining concessions."
"Since the declaration of the Santurbán Páramo Regional Natural Park (PNR), more than 1,300 direct jobs and approximately 2,500 indirect jobs have been lost in the areas of Vetas, California, Surata Matanza, Charta and Tona. This reduction in employment in the area has resulted in a complicated situation for civil unrest and illegality that will likely be aggravated if the delimitation of the Páramo ecosystem covers an area larger than the Park. This is because the communities of the Soto Norte region are not prepared to allow their rights to be further affected; It is our duty to show that the Ministry of Environment's decision on the delimitation of the Santurbán páramo ecosystem should not ignore the acquired rights of mining titleholders of the Soto-Norte Region. This results in a sensitive situation from a juridical and political perspective because in the municipalities that make up the region, there are innumerable deposits of gold and silver, over which there are many mining titles that were acquired from the Constitution and the Law (some of which were granted under the terms of Law 2655 of 1988 and others under Law 685 of 2001), and registered in the National Mining Registry; [...] If the real objective is to preserve the area adequately, to prevent the proliferation of illegal mining and to avoid environmental disasters, displacement and misery, as well as a rise in unemployment and legal uncertainty, the area of the páramo should not be larger than the area of the park."
" 'Tomorrow, in Santurbán, we will show the final boundaries of the páramo. This is the solution to the typical conflict between the environment and development, which is a matter of debate in the country and throughout the world. Tomorrow we will put an end to the uncertainty,' she said.
What happens in Greystar's case?
Greystar, which is now Eco Oro, has no environmental license for exploitation.
So it cannot carry out activities within the páramo?
They need to work outside the established boundaries. But the fact that they are outside does not mean that they have secured the license. It means that they have the right to file the request to obtain the environmental license for exploitation. Outside the boundary, they can carry on with their exploration, which does not require a license.
In short, will the foreign companies have to leave the Santurbán Páramo?
Yes. There are two Canadian giants: the previously called Greystar, which now goes by Eco Oro, and Leyhat. And a Brazilian one, A UX, which was exploring way below the páramo and seems to be having administrative problems unrelated to the delimitation. They are trying to sell and they fired a majority of their employees. The two Canadians must, I believe, analyze whether operating outside the established boundary is profitable.
Because they cannot carry out mining activities in the titles that they have in the páramo.
They did not have a license?
No. And as I tell my children, 'Sorry, life is hard '...".
"1. Does the prohibition under Article 202(1) of Law No. 1450 apply prospectively, i.e. would it affect only legal or factual situations that had not already materialized prior to the entry into force of the prohibitions contained in Law No. 1382 of 2010 and Law No. 1450 of 2011?
2. If the answer to the previous question is no, is the enforcing authority of such law required to immediately order the closure of all prohibited activities? Would such order result in potential liability for the State in relation to persons with an interest in legal situations which have already materialized in the area delimited as a páramo ecosystem?
3. If the answer to the first question is no, is the government allowed to request compliance with such law in a gradual or progressive manner, in furtherance of the principle of legitimate expectations?
4. Can the environmental authority, through zoning and the regime governing the uses of the delimited páramo ecosystem, adopt environmental actions to progressively and gradually allow the reconversion of prohibited activities in páramo ecosystems, even when such activities had materialized before the entry into force of Law No. 1450 of 2011?
5. Is it possible to file an application for an environmental license with the environmental authority in relation to mining titles that had been granted before the entry into force of such prohibition and that did not apply for or obtain the relevant environmental license authorizing the commencement of mining exploitation activities? Is the environmental authority, while Law No. 1450 of 2011 is in force, allowed to authorize mining exploitation activities by granting an environmental license for mining titles that were effective prior to the entry into force of the legal prohibition under Law No. 1382 of 2010?
6. Pursuant to Article 202 of Law No. 1450, is the Ministry required to delimit the ecosystem in line with the technical elements provided by natural sciences, taking into account the social and economic information required to characterize the area?
7. Or is it required to define the ecosystem by combining the elements resulting from natural sciences and the social and economic aspects of the area, which would involve excluding ecosystems already transformed by human activities from the delimitation of the páramo?"
|Claimant's Translation||Respondent's Translation|
|c. In such case (inability to continue contracts that pose a risk to páramo ecosystems), the government must review on a case-by-case basis the need to reach agreements for economic compensation in order to avoid legal claims. Regarding the concern that the consulting entity expresses on this point that certain contracts may also be covered by Bilateral Investment Treaties (BITs), the Court notes that in fact, these types of agreements include, with some minor variations, the following standard clause:||c. In such case (inability to continue contracts that pose a risk to páramo ecosystems), the government must review on a case-by-case basis the need to reach agreements for economic compensation in order to avoid legal claims. Regarding the concern that the Consulting entity expresses on this point such that some contracts may also be covered by Bilateral Investment Treaties (BITs), the Court notes that in fact, these types of agreements include, with some minor variations, the following standard clause:|
|"Neither of the Parties may take, either directly or indirectly, measures to expropriate, nationalize, or any other measure of the same nature or effect, against the investments of the investors from the other Party, unless such measures are taken in the public interest, in a non-discriminatory manner, and following the due process of law, and provided that provisions are made to make prompt, effective, and adequate compensation. (Emphasis added)||"Neither of the Parties may take, either directly or indirectly, measures to expropriate, nationalize, or any other measure of the same nature or effect, against the investments of the investors from the other Party, unless such measures are taken in the public interest, in a non-discriminatory manner, and following the due process of law, and provided that provisions are made to make prompt, effective, and appropriate compensation. (Emphasis added)|
|This clause thus protects investors from direct or indirect expropriations, but in no way prohibits enactment of subsequent laws by the treaty states, instead establishing a guarantee of nondiscrimination, due process, good faith, and economic compensation.||This clause thus protects investors from direct or indirect expropriations, but in no way prohibits enactment of subsequent laws by the treaty states, instead establishing a guarantee of non-discrimination, due process, good faith, and economic compensation.|
|In this way, the BITs allow, without infringement of the agreements, application of statutes enacted for reasons of public interest, as in this case would be the protection of páramo ecosystems as providers of water and biological diversity, and there are few reasons not to accept such protection in the overall context of protection and defense of the environment. As such, there would be no infringement of investment agreements in application of laws enacted for reasons of general interest (which the BIT allows as a power of the signatory governments), unless the Colombian government were to use discriminatory criteria or refuse to provide the necessary compensation for the specific situations affected by the new law. [...]||In this way, the BITs allow, without infringement of the agreements, application of statutes enacted for reasons of public interest, as in this case would be the protection of páramo ecosystems as providers of water and biological diversity, and there are few reasons not to accept such protection in the overall context of protection and defense of the environment. As such, there would be no infringement of investment agreements in application of laws enacted for reasons of general interest (which the BIT allows as a power of the signatory governments), unless the Colombian government were to use discriminatory criteria or refuse to provide the necessary compensation for the specific situations affected by the new law. [...]|
c. Those contracts executed prior to Act 1382 of 2010 that pose a risk to the páramo ecosystems which cannot be neutralized through existing environmental instruments cannot continue, and the general interest of environmental protection must take precedence over the private interests of the mining concession-holder. In these events, the need to reach agreements for economic compensation so as to avoid legal claims must be reviewed on a case-by-case basis."
"In the opinion of the Mayor of California, it was clear that not even those who delimited the Santurbán páramo knew how to explain it.
'At the meeting with prosecutor Ordóñez, it was clear that neither the Ministry of Environment, nor the Alexander von Humboldt Institute, could explain why the line was made as it was [...]. The Minister of the Environment only went to Tona, and none of the Vice ministers that they sent walked on the páramo, none went to the area, they did not look into the social and economic aspects, and that is something the Court is not aware of.
"Article 173. Protection and delimitation of páramos. No person may engage in agricultural activities, exploration or exploitation of non-renewable natural resources or construction of hydrocarbon refineries in the areas delimited as páramos.
The Ministry of the Environment and Sustainable Development shall delimit páramo areas within the area of reference defined in the map provided by the Alexander Van Humboldt Institute at a scale of 1:100,000, or 1:25,000, if available. In this area, the regional environmental authority shall conduct the technical studies required to characterize the environmental, social, and economic context pursuant to the terms of reference issued by the Ministry of the Environment and Sustainable Development. Within such area, the Ministry of the Environment and Sustainable Development shall delimit the páramo area on the basis of technical, environmental, social, and economic criteria.
Paragraph 1. Within the area delimited as páramo, those activities for the exploration and exploitation of non-renewable natural resources that have a contract and an environmental license with the equivalent environmental control and management instrument, granted prior to February 9, 2010 for mining activities, or prior to June 16, 2011 for activities involving hydrocarbons respectively, may continue to be performed until termination without extension. From the entry into force of this law, the Environmental Authorities shall review the environmental licenses granted prior to the effective date of the prohibition for the delimited páramo areas, and they shall be subject to the control, follow-up, and review by the mining, hydrocarbons and environmental authorities, within the scope of their powers and following the guidelines issued for that purpose by the Ministry of the Environment and Sustainable Development.
In any case, failure to comply with the terms and conditions under which the mining or environmental licenses were granted will result in the expiration of the mining title pursuant to the Colombian Mining Code, or in direct revocation of the environmental license without the holder's consent and without right to compensation.
If, despite the existence of the environmental license, it is not possible to prevent, mitigate, rectify, or compensate for any possible environmental damage to the páramo ecosystem, the mining activity may not be continued. The Ministry of Agriculture and Rural Development, any entities falling within its purview and the political-administrative subdivisions, in coordination with the Regional Environmental Authorities and subject to the guidelines of the Ministry of the Environment and Sustainable Development, shall agree on the design of, training on, and implementation of replacement and conversion programs for any agricultural activities being conducted prior to June 16, 2011 within the delimited páramo area, in order to ensure the gradual application of the prohibition.
Paragraph 2. In the area of reference not included within the delimited páramo area, it is forbidden to grant new mining titles, to enter into new agreements for the exploration and exploitation of hydrocarbons, or to conduct new agricultural activities. This area shall be subject to organization and comprehensive management by the authorities of the political-administrative subdivisions pursuant to the guidelines issued by the Regional Environmental Authorities, so as to mitigate and prevent any disturbances affecting the area delimited as páramo and to contribute to the protection and preservation thereof.
Paragraph 3. Within a period of three (3) years following the delimitation, the environmental authorities shall zone and define the uses to be assigned to the delimited páramo area pursuant to the guidelines issued for that purpose by the Ministry of the Environment and Sustainable Development."
"The delimitation of páramos in Colombia is paying off a historical debt to the environment, but it is also creating a legal limbo for companies that already held concessions with environmental licenses in those strategic areas.
In addition to the delimitation of the Santurbán páramo, eight other ecosystems were delimited this week and the Government expects that, by the end of this year, the other 27 high-mountain systems will have their boundaries delimited to protect them from mining and hydrocarbons extraction, following the decision of the Constitutional Court that, even before its prohibition in 2010, there should not have been any projects in such strategic areas. But the Government had allowed the continuation of such projects until the expiration of the contracts, precisely to prevent legal disputes.
According to the National Mining Authority (ANM), there are more than 475 mining titles - 286 in exploitation - that overlap with 28 páramos, covering an area of 127,000 hectares. Such concessions are held by nearly 100 companies and 300 individuals who will have to cease their activities as páramos continue to be delimited.
Eco Oro, formerly Greystar, a Canadian company that has been developing the Angostura mining project for twenty years in the Santurbán páramo, has sparked the first flame. A couple of weeks ago, ignoring the authority of the Ministry of Mines and the National Mining Authority, the company sent a letter to President Juan Manuel Santos, communicating its intention to formally initiate amicable settlement proceedings, invoking the provisions of the free trade agreement with Canada that provide legal protection to foreign companies.
'We have invested USD 250 million, have progressed this project for twenty years and the idea is to continue to make progress towards that goal, obviously respecting the environment, the páramo. I have also seen the film 'Wild Magic' and we are all aware that this is an ecosystem we need to take care of, but that does not entail that mining cannot be done. There are compatibilities, and that is what we are looking for,' stated Mark Moseley-Williams, President of Eco Oro.
For such reason, the Government is debating whether to halt the mining locomotive that it so enthusiastically announced in 2010 or to seek solutions so that these businesses can carry out their mining projects without affecting the ecosystems. How will it act with respect to the mining titles that overlap with the páramos? Why did it grant concessions within those ecosystems? How feasible is it that an international tribunal could undermine the country's autonomy?
The Minister of the Environment, Gabriel Vallejo, has already agreed that there will be strict compliance with the judgment rendered by the Constitutional Court, ordering the eradication of any mining activities currently carried out in the páramos and that new mining titles in them not be granted.
'Following the resolutions that I have signed regarding the delimitation of the páramos, with respect to mining and hydrocarbons, environmental licenses shall, in accordance with the relevant limitations, cease to be in force. And we are working with the Ministry of Mines to make a decision regarding titles currently in force in order to have them terminated on the basis of the Constitutional Court decision.'
In any case, the Minister said that companies are entitled to file any claims they may consider appropriate if they believe their rights have been violated. However, 'we are abiding by a decision of the Court.'
Another question that comes into play is: Why did the Government grant concessions in the ecosystems?
First, because doing so had only been impliedly prohibited under a section of the 2010-2014 Development Plan, but with the exception that the companies holding concessions with an environmental license granted prior to 2010 could perform exploitation activities in the páramos until their contracts were terminated. However, that is what the high court objected to.
According to the former comptroller for environmental matters, Mauricio Cabrera, he warned on several occasions, in his capacity as advisor to the Ministry of the Environment, that granting titles in such areas would cause legal problems in the future.
'Later, in 2013, the Office of the Comptroller General issued a warning because that year, the Government reopened the mining registry. We said it was inappropriate and that under the circumstances it was not appropriate to grant mining titles in the country again. Nevertheless, this is what occurred.'
That is to say, the problem that the Executive attempted to avoid six years ago has just reappeared with Eco Oro's warning. However, this is not the only one that the Colombian Government will have to face. Cosigo Resources and Tobie Mining and Energy are already demanding compensation in the amount of USD 16.5 billion. The companies argue that after the declaration of the national natural park of the Yaigojé-Apaporis reserve, in 2007, their mining rights were unlawfully revoked, in violation of the Free Trade Agreement with the United States.
"The Investment, which is subject to customary terms and conditions, is going to occur in two tranches. The first tranche ('Tranche 1'), which is closed concurrently with the execution of the Agreement, is for US$3 million and the second tranche ('Tranche 2') is for US$11 million. The Company has issued 10,608,225 common shares, which represents 9.99% of the Company's issued and outstanding shares, to the Investor pursuant to Tranche 1.
The Company will call a meeting of its shareholders to obtain shareholder approval for the issuance of common shares pursuant to Tranche 2. Pursuant to Tranche 2, the Company will issue 84,590,427 common shares, which will result in the Investor owning an aggregate of 49.99% of the Company's issued and outstanding shares and an unsecured convertible note in the principal amount of US$7 million (the 'Note'). In the event that shareholder approval is not obtained, Tranche 2 will consist of the Note and secured contingent value rights (the 'CVR'), entitling the Investor to 51% of the gross proceeds of the Arbitration."
"This measure strongly affects the Angostura Project, since [it] deprives Eco Oro's mining rights, specifically 50.73% of the area of Mining Concession 3452, and makes it seriously question its viability.
In this sense, this document is intended to describe the activities to be carried out during the extension, which are aimed at establishing whether or not it is viable to continue developing the Angostura Project, considering the new measure adopted.
We clarify that submission of this present proposal of works does not suppose nor can be interpreted, in any way, as project viability.
Finally, we note that Eco Oro reserves all its rights under the Free Trade Agreement signed between the Republic of Colombia and Canada on 21 November 2008 and international law in relation to this matter."
"Consequently, and in accordance with the provisions of Resolution No. 0206 of 22 March 2013, the Vice Presidency for Mining Monitoring, Control and Safety of the National Mining Agency rules:
1. Notify [Eco Oro] of Technical Concept VSC-003 of 17 January 2017, so that within thirty (30) days from the notification of this order, they present the clarifications listed therein, as well as the observations they consider relevant."210
"Answer: 'Good afternoon. The truth is that páramos are strategic ecosystems because they are the main matting that protects and allows the distribution of water in our country. We are lucky to have around 50% of all the páramos in the world here in Colombia. This is why the Administrative Prosecutor's Office, through the head of environmental matters, adopted several measures to protect these ecosystems.
[...] Also, recently, we requested from the National Mining Agency the exclusion of all protected areas, particularly páramos, and that all works and activities conducted by concessionaires be immediately suspended and abandoned without compensation, as mandated by Article 36 of the current Mining Code.
And regarding the Santurbán páramo, in light of the Constitutional Court's decision, we are following up on the discussions held with the Ministry of the Environment and, of course, we are working towards the páramo's delimitation before the end of the current administration.'
Question: 'What do you mean by 'abandoned'?'
Answer: 'I mean that, sometimes, mining areas overlap with protected areas because titles were granted on protected areas where mining cannot be conducted. So, pursuant to the applicable regulations, the Administrative Prosecutor's Office has insisted on this because there are several titles currently in force that overlap with areas where mining is prohibited.'"
"The development of projects, works or activities in páramos will be subject to the corresponding Environmental Management Plans. In any case, the following prohibitions will be taken into account:
1. Development of mining exploration and exploitation activities. "
a. Mr. Mark Moseley-Williams, who held different positions at Eco Oro, notably that of President and Chief Executive Officer between 1 January 2016 and July 2017. He has continued to serve as a consultant to Eco Oro;253
b. Mr. Wilmer González Aldana, who is Eco Oro's Environment and Occupational Health and Safety Director, having served as Eco Oro's Biodiversity and Conservation Manager and then as Environmental Manager between 2012 and 2015;254
c. Ms. Brigitte Baptiste, who is the Director General of the IAvH;255
d. Mr. Javier García Granados, who is the Vice-President of the Supervision, Control and Mining Safety division of the ANM;256
e. Ms. Luz Helena Sarmiento, who was responsible for the evaluation and subsequent rejection of an environmental license requested by the Claimant in 2011 in her capacity as Director of Licenses, Permits and Environmental Procedures of MinAmbiente. On 11 September 2013, Ms. Sarmiento was appointed by President Juan Manuel Santos as Minister of Environment and Sustainable Development. Ms. Sarmiento currently works as a consultant on various environmental matters and is a member of several important Colombian companies' boards of directors;257
f. Ms. María Isabel Ulloa, who acted as Vice-Minister of Mines from October 2014 to June 2016;258 and
g. Mr. Carlos Enrique Sarmiento Pinzón, who worked at IAvH from 2009 to 2017. Mr. Sarmiento currently works for the U.S. firm ecoPartners LLC, as part of the Páramos and Forests program of USAID.259
a. Behre Dolbear, the Claimant's mining and engineering experts;260
b. Compass Lexecon, the Claimant's damages experts;261
c. Professor Margarita Ricaurte, the Claimant's legal expert;262
d. Mr. Christopher Johnson, the Respondent's mining and engineering expert;263
e. Mr. Mario E. Rossi, the Respondent's mining and engineering expert;264
f. Charles River Associates ("CRA"), the Respondent's damages experts;265 and
g. Mr. Felipe de Vivero Arciniegas, the Respondent's legal expert.266
"A Tribunal established under this Section shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law. An interpretation by the Commission of a provision of this Agreement shall be binding on a Tribunal established under this Section, and any award or other ruling under this Section shall be consistent with the interpretation."270
"Article 31. GENERAL RULE OF INTERPRETATION
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Article 32. SUPPLEMENTARY MEANS OF INTERPRETATION
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) Leaves the meaning ambiguous or obscure; or
(b) Leads to a result which is manifestly absurd or unreasonable."
"The Joint Commission, acting under subparagraph 3(a) of Article 2001 of the Colombia-Canada Free Trade Agreement (hereinafter, the 'Agreement'), reviewed Chapter Eight of the Agreement. In this respect, the Joint Commission decided that Articles 803, 804 and 805 be authoritatively interpreted as follows in order to clarify and reaffirm their meaning:
1. Investment and Regulatory Measures
For the purpose of Chapter Eight, the Parties reaffirm the right of each Party to regulate within its territory to achieve legitimate policy objectives, such as the promotion or protection of safety, health, the environment, cultural diversity or gender equality, or social or consumer protection.
2. National Treatment and Most-Favoured-Nation Treatment
(a) Whether treatment is accorded in 'like circumstances' under Articles 803 and 804 depends on the totality of the circumstances, including whether the relevant treatment distinguishes between investors or covered investments on the basis of legitimate policy objectives.
(b) The 'treatment' referred to in Article 804 does not include procedures for the resolution of investment disputes between investors and States provided for in other international investment treaties and other trade agreements. In addition, substantive obligations in other international investment treaties and other trade agreements do not in themselves constitute 'treatment', and thus cannot give rise to a breach of Article 804, absent measures adopted or maintained by a Party.
3. Minimum Standard of Treatment in Accordance with International Law
(a) The concept of 'full protection and security' in Article 805 refers to a Party's obligations relating to the physical security of investors and covered investments.
(b) If an investor of a Party submits a claim under Section B of Chapter Eight, including a claim alleging that a Party has breached Article 805, the investor has the burden of proving all elements of its claim, consistent with general principles of international law applicable to international arbitration. This includes the burden to prove a rule of customary international law invoked under Article 805, through evidence of the elements of customary international law referred to in footnote 2 of Chapter Eight.
The adoption by the Joint Commission of this or any future interpretation does not indicate an absence of agreement between the Parties about other matters of interpretation of the Agreement. "
a. Colombia has validly denied the benefits of Chapter Eight of the FTA to Eco Oro in accordance with Article 814(2) of the Treaty ("Article 814(2)");
b. Eco Oro is not a protected investor under the FTA, because it assigned its claims to non-Canadian nationals;
c. Eco Oro has failed to comply with four of the mandatory conditions precedent to arbitration provided for in Article 821 of the FTA, including failing to bring its claims within the limitation period;
d. Eco Oro's claims fall outside of the Tribunal's jurisdiction ratione temporis; and
e. Eco Oro's claims fall outside of the Tribunal's jurisdiction ratione materiae.
"A Party may deny the benefits of this Chapter to an investor of the other Party that is an enterprise of such Party and to investments of that investor if investors of a non-Party or of the denying Party own or control the enterprise and the enterprise has no substantial business activities in the territory of the Party under whose law it is constituted or organized."
a. Secured Contingent Value Rights ("CVRs") entitling Trexs to 51% of the gross proceeds of this arbitration and granting Trexs the benefit of covenants and rights in relation to Eco Oro;
b. A veto right over the settlement or termination of this arbitration;
c. A veto right over the incurrence by the company of further debt other than to fund this arbitration;
d. The right to appoint a nominee to Eco Oro's Board;
e. The right to be consulted in relation to every material filing and other material step taken in this arbitration;
f. The right to receive all relevant information concerning Eco Oro and its business, including in relation to this arbitration; and
g. A USD 1 million unsecured convertible loan note.290
"[A] change of control would not be possible without the consent of Tenor, and the CVRs in effect allow Tenor and the Participating Shareholders to have full control over the Arbitration and other operations of Eco Oro.
The Investment Agreement, including the issuance of the CVRs, differ from customary arrangements to finance the Arbitration in that they provide for: [...] control of the Arbitration vesting in Tenor and the Participating Shareholders rather than the Company; events of default that effectively prevent any change of control of the company or of management." 291
"[I]f a person or combination of persons holds more than 20% of the voting rights attached to all outstanding voting securities of an issuer, the person or combination of persons is deemed, in the absence of evidence to the contrary, to hold a sufficient number of the voting rights to affect materially the control of the issuer[…]"
"[A] corporation is controlled by a person if (a) shares of the corporation are held, other than by way of security only, by the person, or are beneficially owned, other than by way of security only, by (i) the person, or (ii) a corporation controlled by the person, and (b) the votes carried by the shares mentioned in paragraph (a) are sufficient, if exercised, to elect or appoint a majority of the directors of the corporation."314
"[...] investor of a Party means a Party or state enterprise thereof, or an enterprise or national of a Party, that seeks to make, is making or has made an investment. A natural person who is a dual citizen shall be deemed to be exclusively a citizen of the State of his or her dominant and effective citizenship. A natural person who is a citizen of a Party and a permanent resident of the other Party shall be deemed to be exclusively a national of the Party of which he or she is a citizen."320
Eco Oro had not "other than pursuant to [the Investment Agreement] assigned all or any portion of [its claims under the FTA]."326
"Article 821: Conditions Precedent to Submission of a Claim to Arbitration
1. The disputing parties shall hold consultations and negotiations in an attempt to settle a claim amicably before a disputing investor may submit a claim to arbitration. Consultations shall be held within 30 days of the submission of the Notice of Intent to Submit a Claim to Arbitration under subparagraph 2(c), unless the disputing parties otherwise agree. Consultations and negotiations may include the use of non-binding, third-party procedures. The place of consultations shall be the capital of the disputing Party, unless the disputing parties otherwise agree.
2. A disputing investor may submit a claim to arbitration under Article 819 or Article 820 only if:
(a) the disputing investor and, where a claim is made under Article 820, the enterprise, consent to arbitration in accordance with the procedures set out in this Section;
(b) at least six months have elapsed since the events giving rise to the claim;
(c) the disputing investor has delivered to the disputing Party a written notice of its intent to submit a claim to arbitration (Notice of Intent) at least six months prior to submitting the claim. The Notice of Intent shall specify:
(i) the name and address of the disputing investor and, where a claim is made under Article 820, the name and address of the enterprise,
(ii) the provisions of this Agreement alleged to have been breached and any other relevant provisions,
(iii) the legal and the factual basis for the claim, including the measures at issue, and
(iv) the relief sought and the approximate amount of damages claimed;
(d) the disputing investor has delivered evidence establishing that it is an investor of the other Party with its Notice of Intent;
(e) in the case of a claim submitted under Article 819:
(i) not more than 39 months have elapsed from the date on which the disputing investor first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the disputing investor has incurred loss or damage thereby, and
(ii) the disputing investor and, where the claim is for loss or damage to an interest in an enterprise of the other Party that is a juridical person that the disputing investor owns or controls directly or indirectly, the enterprise, waive their right to initiate or continue before any administrative tribunal or court under the law of either Party, or other dispute settlement procedures, any proceedings with respect to the measure of the disputing Party that is alleged to be a breach referred to in Article 819, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the applicable law of the disputing Party, provided that the action is brought for the sole purpose of preserving the disputing investor's or the enterprise's rights and interests during the pendency of the arbitration; and
(f) in the case of a claim submitted under Article 820:
(i) not more than 39 months have elapsed from the date on which the enterprise first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the enterprise has incurred loss or damage thereby, and
(ii) both the disputing investor and the enterprise waive their right to initiate or continue before any administrative tribunal or court under the law of either Party, or other dispute settlement procedures, any proceedings with respect to the measure of the disputing Party that is alleged to be a breach referred to in Article 820, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the applicable law of the disputing Party, provided that the action is brought for the sole purpose of preserving the disputing investor's or the enterprise's rights and interests during the pendency of the arbitration.
3. A consent and waiver required by this Article shall be in the form provided in Annex 821, shall be delivered to the disputing Party and shall be included in the submission of a claim to arbitration. Where a disputing Party has deprived a disputing investor of control of an enterprise, a waiver from the enterprise under subparagraphs 2(e)(ii) or 2(f)(ii) shall not be required.
4. An investor may submit a claim relating to taxation measures covered by this Chapter to arbitration under this Section only if the taxation authorities of the Parties fail to reach the joint determinations specified in Article 2204 (Exceptions - Taxation) within six months of being notified in accordance with those provisions.
5. An investor of a Party who is also a national of a non-Party may not initiate or continue a proceeding under this Article if, as a national of the non-Party, it submits or has submitted, directly or indirectly, an investment claim with respect to the same measure or series of measures under any agreement between the other Party and that non-Party."336
a. Law 1382 of 2010 which established an immediate mining ban in that area of Concession 3452 which overlapped with the Santurbán Páramo, being 54.42% (confirmed by Resolutions VSC 2 and 4) and Eco Oro knew or ought to have known that Concession 3452 was not protected by the transitional regime introduced. Colombia refers to the following as evidencing that knowledge:
i. An email dated 24 April 2010340 from Mr. Kesler (Eco Oro's then President and CEO) noting that Eco Oro was "led to believe that the Angostura project would benefit from 'grandfathering' regarding the new law" which it submits shows that the grandfathering exemption had not materialised for Eco Oro;
ii. An internal memorandum dated 3 May 2010 which confirms that Eco Oro knew it did not benefit from the transitional regime; 341
iii. The rejection of its 2009 EIA pursuant to which Mr. Kessler noted in the same email of 24 April 2010 that "[t]his effectively stops the project [...]. The project, with this condition, may not be feasible or economic. ";342
iv. A report prepared by Mr. Kessler for Eco Oro's board of directors noting that the impact of this on the share price was " dramatic .";343
b. Resolution 937 of 2010 confirmed Law 1382 was enforceable by reference to the 2007 Atlas;
c. Resolution 1015 of 2011 rejected Eco Oro's EIA referring to Resolution 937;
d. Law 1450 of 2011 re-enacted the mining ban established in Law 1382 and specified that the 2007 Atlas would serve as a "minimum reference" to enforce the mining ban;
e. Resolution 35 of 2011 upheld the denial of an environmental licence; and
f. Resolution VSC 4 of 2012, which definitively confirmed Eco Oro could not conduct mining activities in that part of Concession 3452 overlapping with the páramo. As this was unchallenged by Eco Oro it took effect as a definitive determination of Eco Oro's rights under Concession 3452 through the application of Laws 1382 and 1450. Thus, Eco Oro must have known VSC 4 curtailed its ability to conduct mining activities in the páramo areas of Concession 3452.