• Copy the reference
  • Tutorial video

Decision on Jurisdiction, Liability and Directions on Quantum

Table of Selected Defined Terms

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
Au Gold
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
c-[#] Claimant's exhibit
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
Golder Golder Associates
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
R-[#] Respondent's exhibit
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

 

I. INTRODUCTION1

1.
This case concerns a dispute submitted to the International Centre for Settlement of Investment Disputes ("ICSID" or the "Centre") on the basis of Section B of Chapter Eight of the Free Trade Agreement between Canada and the Republic of Colombia, signed on 21 November 2008 and which entered into force on 15 August 2011 (the "FTA" or the "Treaty"),2 and the 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 (the "ICSID Convention").

A. The Parties

2.
The claimant is Eco Oro Minerals Corp. (formerly known as Greystar Resources Limited ("Greystar")), a corporation constituted under the laws of British Columbia, Canada, and trading publicly on the Canadian Securities Exchange (formerly, on the Toronto Stock Exchange), with its registered address at Suite 300-1055 West Hastings Street, Vancouver, BC V6E 2E9, Canada ("Eco Oro" or the "Claimant").3
3.
The respondent is the Republic of Colombia, a sovereign State ("Colombia" or the "Respondent").
4.
The Claimant and the Respondent are collectively referred to as the "Parties". The Parties' representatives and their addresses are listed above on page (i).

B. Background to the Dispute

5.
This dispute relates to measures adopted by the Respondent in connection with the páramo ecosystem in Santurbán, which allegedly have deprived Eco Oro of its mining rights under a concession contract for the exploration and exploitation of a deposit of gold, silver, chromium, zinc, copper, tin, lead, manganese, precious metals and associated minerals entered into on 8 February 2007 between Eco Oro and INGEOMINAS. The contract relates to the Angostura gold and silver deposit located in the Soto Norte region of the department of Santander, within the Vetas-California gold district: Concession Contract 3452 ("Concession 3452" or the "Concession").
6.
The Claimant alleges that Colombia has breached its obligations under (i) Article 805 of the FTA by means of the unlawful, creeping and indirect expropriation of its investment; and (ii) Article 811 of the FTA by failing to accord Eco Oro's investment the minimum standard of treatment ("MST"). The Claimant seeks full reparation for what it deems to be the destruction of its investment in Colombia, claiming compensation for damage caused as a result of the Respondent's breaches and violations of the FTA and international law in an amount of USD 696 million, plus pre-award and post-award interest. The Respondent submits that Eco Oro's claims ought to be dismissed in their entirety as the Tribunal lacks jurisdiction over this dispute and there is no basis of liability accruing to Colombia under the FTA.
7.
Save as specified otherwise, the versions of the exhibits and relevant translations into English thereof referred to by the Tribunal in this decision are the ones provided by the Parties via the online case document repository (Box). In cases where the Parties have provided different translations of the same document or portion thereof, a table containing both translations is used.
8.
The Tribunal has given careful consideration to the extensive factual and legal arguments presented by the Parties in their written and oral submissions, and taken full account of the submissions from the Government of Canada. The Tribunal does not consider it necessary to reiterate all such arguments, but rather addresses those arguments which it considers most relevant for its decisions. The Tribunal's reasons, without repeating all the arguments advanced by the Parties, address what it considers to be the determinative factors required to decide on the requests of the Parties. Where the Tribunal considers, however, that a brief repetition of certain aspects of its conclusions in the context of particular issues is appropriate, it has done so. The Tribunal's analysis shall not be limited to authorities referred to by the Parties.4

II. PROCEDURAL HISTORY

A. Initiation of the Arbitration

9.
On 7 March 2016, the Claimant wrote to the Respondent, notifying it pursuant to Article 821(2)(c) of the FTA of the claims Eco Oro intended to submit to international arbitration ("Notice of Intent").5 In its Notice of Intent, the Claimant, inter alia, proposed to hold amicable consultations with Government representatives, with a view to establishing a constructive dialogue permitting to reach a negotiated solution to the dispute.
10.
On 8 December 2016, ICSID received a request for arbitration from the Claimant against Colombia, accompanied by exhibits C-001 to C-061 (the "Request for Arbitration").
11.
On 15 December 2016, the Respondent submitted to the Centre a copy of a Notice of Denial of Benefits sent on that same date to the Claimant by which Colombia stated that it denied the benefits of Chapter 8 of the FTA to Eco Oro and its alleged investments on the basis of Article 814(2) of the FTA.6
12.
By letter of 20 December 2016, the ICSID Secretariat requested additional information from Eco Oro concerning its Request for Arbitration, which was provided on 22 December 2016.
13.
On 29 December 2016, the Acting Secretary-General of ICSID registered the Request for Arbitration, as supplemented on 22 December 2016, in accordance with Article 36(3) of the ICSID Convention, and notified the Parties of the registration. In the Notice of Registration, the Acting Secretary-General invited the Parties to proceed to constitute an arbitral tribunal as soon as possible in accordance with Rule 7(d) of the ICSID Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings.

B. Constitution of the Tribunal

14.
The Parties agreed to constitute the Tribunal in accordance with Article 37(2)(a) of the ICSID Convention as follows: the Tribunal would consist of three arbitrators, one to be appointed by each Party, and the third, presiding arbitrator to be appointed by agreement of the Parties. Pursuant to the Parties' agreed method of constitution, failing an agreement of the Parties on the presiding arbitrator, she or he would be appointed by the Secretary-General of ICSID, without limitation to the ICSID Panel of Arbitrators.
15.
The Tribunal is composed of:

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
Lamb Building
3 rd Floor South
Temple
London
EC4Y 7AS
United Kingdom

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
Bethesda
Maryland 20816
United States of America

and

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
Matrix Chambers
Gray's Inn
London WC1R 5LN
United Kingdom

16.
On 11 September 2017 and in accordance with Rule 6(1) of the ICSID Rules of Procedure for Arbitration Proceedings (the "ICSID Arbitration Rules"), the Secretary-General notified the Parties that all three arbitrators had accepted their appointments and that the Arbitral Tribunal (the "Tribunal") was therefore deemed to have been constituted on that date. Ms. Ana Constanza Conover Blancas, ICSID Legal Counsel, was designated to serve as Secretary of the Tribunal.

C. Initial Procedural Steps

17.
On 13 September 2017, ICSID received a letter from the Comité para la Defensa del Agua y el Páramo de Santurbán, the Center for International Environmental Law (CIEL), the Inter-American Association for the Defense of the Environment (AIDA), MiningWatch Canada, the Institute for Policy Studies (IPS) and the Centre for Research on Multinational Corporations (SOMO) (together, the "Petitioners") addressed to the Tribunal. In their letter, the Petitioners advised the Tribunal that one or more of them anticipated to submit a request for leave to participate in the arbitration as amici curiae. The Petitioners further requested the Tribunal to (i) make available to them the documents submitted to or issued by the Tribunal in the proceeding by establishing procedures for the publication of case materials, and (ii) establish a timetable for requesting leave for amici intervention, in order to avoid disrupting the proceedings. On 14 September 2017, the Secretary of the Tribunal transmitted a copy of the Petitioner's letter to the Tribunal and the Parties.
18.
On 22 September 2017, in response to an invitation to provide comments from the Tribunal, each Party filed observations on the Petitioners' letter of 13 September 2017.
19.
On 10 October 2017, the Secretary of the Tribunal wrote to the Parties, on behalf of the President of the Tribunal, to inquire whether the Parties would agree to the appointment of Mr. Joao Vilhena Valerio as an assistant to the President of the Tribunal in this case. By communications of 13 and 16 October 2017, the Parties confirmed their agreement on the appointment of Mr. Vilhena Valerio. On 30 October 2017, the Secretary of the Tribunal transmitted a copy of Mr. Vilhena Valerio's signed declaration of independence and impartiality to the Parties.

D. First Session and Written Phase of the Proceedings

20.
On 21 November 2017, in accordance with ICSID Arbitration Rule 13(1), the Tribunal held a first session with the Parties by telephone conference.
21.
On 30 November 2017, following the first session, the Tribunal issued Procedural Order No. 1, recording the Parties' agreements on procedural matters and the decision of the Tribunal on the disputed issues. Procedural Order No. 1 established, inter alia, that: the applicable Arbitration Rules would be those in effect from 10 April 2006, except to the extent modified by Section B of Chapter Eight (Investment) of the FTA and supplemented by any rules adopted by the Joint Commission of the Free Trade Agreement Between the Republic of Colombia and Canada (the "Commission") under Articles 822(2), 832, and 2001(3)(a) of the FTA; the procedural languages would be English and Spanish; the Tribunal's award and procedural orders, the notice of intent and the Request for Arbitration would be publicly available subject to the deletion of confidential information; and that the place of the proceeding would be Washington, D.C. Procedural Order No. 1 also set out three scenarios for procedural timetables for the written phase, including time limits for the filing of applications from non-disputing parties.
22.
On 20 March 2018, the Claimant filed a Memorial on the Merits dated 19 March 2018 (the "Claimant's Memorial"), with exhibits C-62 to C-279 and legal authorities CL-1 to CL-91. The pleading was also accompanied by two witness statements and two expert reports, as follows: (i) Witness Statement of Mr. Mark Moseley-Williams dated 19 March 2018 ("First Moseley-Williams Statement"); (ii) Witness Statement of Mr. Wilmer González Aldana dated 19 March 2018 ("First González Aldana Statement"); (iii) 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 Behre Dolbear Report"), with supporting documents BD-1 to BD-36; and (iv) 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 Compass Lexecon Report"), with supporting documents CLEX-1 to CLEX-66.
23.
On 18 April 2018, the Respondent filed a request to address the objections to jurisdiction as a preliminary question (the "Respondent's Request for Bifurcation") accompanied by exhibits R-1 to R-20 and legal authorities RL-1 to RL-30.
24.
On 18 May 2018, the Claimant filed a response to the Respondent's Request for Bifurcation (the "Claimant's Response on Bifurcation"), accompanied by exhibits C-280 to C-300 and legal authorities CL-92 to CL-128.
25.
On 4 June 2018, the Tribunal advised the Parties that it was inclined to join the jurisdictional objections to the merits and that the majority of the Tribunal had been discussing whether the most efficient conduct of the proceeding could lead it to bifurcate the damages phase. The Parties were invited to submit observations on this proposal, which were received on 15 June 2018.
26.
On 28 June 2018, following additional exchanges between the Parties, the Tribunal issued Procedural Order No. 2, dismissing the Respondent's Request for Bifurcation and joining Respondent's jurisdictional objections and issues related to quantum to the merits phase of the proceeding.
27.
By emails of 17 and 20 August 2018, the Parties informed the Tribunal that they had agreed to propose to the Tribunal amendments to Annex A to Procedural Order No. 1 concerning the timetable for the remaining procedural steps in the arbitration. In addition, the Parties proposed to reserve the last two weeks of January 2020 to hold an oral hearing.
28.
By emails of 24 August 2018, in response to a consultation from the Tribunal, the Parties confirmed their availability to hold the pre-hearing organizational meeting set out in Section 20 of Procedural Order No. 1 on 20 December 2019, as well as their agreement to hold the hearing in Washington, D.C.
29.
On 29 August 2018, the Tribunal issued Procedural Order No. 3, by which it approved the amendments to the procedural calendar proposed by the Parties on 17 and 20 August 2018, including the hearing dates and the date for the pre-hearing organizational meeting.
30.
By letter of 26 September 2018, the Respondent filed a request for a 60-day extension of the deadline set out in Procedural Order No. 3 to submit its Counter-Memorial on the Merits and Memorial on Jurisdiction. On 1 October 2018, in response to an invitation to provide comments from the Tribunal, the Claimant submitted its observations regarding the Respondent's extension request.
31.
On 10 October 2018, following additional exchanges between the Parties, the Tribunal issued Procedural Order No. 4 concerning adjustments to the procedural calendar. In its order, the Tribunal granted a 60-day extension to the Respondent to file its Counter-Memorial on the Merits and Memorial on Jurisdiction and allowed a 60-day extension to the Claimant for the filing of its Reply on the Merits and Counter-Memorial on Jurisdiction, if so required.
32.
By communications of 26 and 29 October 2018, and 27 and 29 November 2018, the Parties consulted with the Tribunal concerning potential alternative hearing dates, in case the Claimant were to apply for a 60-day extension under Procedural Order No. 4 and the end-January 2020 hearing needed to be moved. Having consulted with the Parties, the Tribunal concluded that it was necessary to keep the January 2020 hearing dates to avoid several additional months of delay in the proceeding.
33.
By communications of 18 and 20 December 2018, the Parties informed the Tribunal of their agreement to propose amendments to the procedural calendar with respect to the timetable for the remaining procedural steps prior to the hearing.
34.
On 19 December 2018, the Petitioners filed an application for leave to intervene as non-disputing parties pursuant to Annex 831 of the FTA and Rule 37(2) of the ICSID Arbitration Rules, which included a request to file a written submission, to access case documents and to attend the hearing (the "Petitioners' Application").
35.
On 21 December 2018, the Tribunal issued Procedural Order No. 5, approving the Parties' proposed amendments to the procedural calendar of 18 and 20 December 2018.
36.
On 24 December 2018, the Respondent filed a Counter-Memorial on the Merits ("Respondent's Counter-Memorial") and Memorial on Jurisdiction ("Respondent's Memorial"), with exhibits R-21 to R-154 and legal authorities RL-31 to RL-132. The pleading was also accompanied by four witness statements and two expert reports, as follows: (i) Witness Statement of Ms. Brigitte Baptiste dated 24 December 2018 ("First Baptiste Statement"); (ii) Witness Statement of Mr. Javier García Granados dated 24 December 2018 ("First García Granados Statement"); (iii) Witness Statement of Ms. Luz Helena Sarmiento Villamizar dated 24 December 2018 ("Minister Sarmiento Statement"); (iv) Witness Statement of Ms. María Isabel Ulloa dated 24 December 2018 ("Ulloa Statement"); (v) Expert report of Charles River Associates (CRA) dated 24 December 2018, prepared by Dr. James C. Burrows and Dr. Tiago Duarte-Silva ("First CRA Report"), with supporting documents CRA-1 to CRA-93; and (vi) Expert report of Mr. Mario E. Rossi dated 24 December 2018 ("First Rossi Report"), with supporting documents MR-1 to MR-45.
37.
On 28 January 2019, each Party filed observations on the Petitioners' Application. The Claimant's observations were accompanied by legal authorities CL-129 to CL-138 and the Respondent's observations were accompanied by legal authorities RL-133 to RL-138.
38.
On 18 February 2019, the Tribunal issued Procedural Order No. 6 concerning the Tribunal's decision on the Petitioners' Application. In its order, the Tribunal denied the Petitioners' request to file a non-disputing party submission, it denied the Petitioners' request to obtain access to case documents which were not publicly available, and it confirmed that the Petitioners had the right to attend the oral hearing as it was open to the public pursuant to Article 830(2) of the FTA and paragraph 21.8 of Procedural Order No. 1. The Tribunal concluded the following at paragraph 35 of Procedural Order No. 6:

"[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."

39.
On 22 March 2019, following exchanges between the Parties, each Party filed a request for the Tribunal to decide on production of documents.
40.
On 5 April 2019, the Tribunal issued Procedural Order No. 7, ruling on the Parties' respective requests for document production.
41.
On 1 June 2019, the Claimant filed a Reply on Merits and Counter-Memorial on Jurisdiction dated 31 May 2019 ("Claimant's Reply"), with exhibits C-301 to C-446 and legal authorities CL-139 to CL-198. The pleading was also accompanied by two witness statements and three expert reports, as follows: (i) Witness Statement of Mr. Mark Moseley-Williams dated 30 May 2019 ("Second Moseley-Williams Statement"); (ii) Witness Statement of Mr. Wilmer González Aldana dated 31 May 2019 ("Second González Aldana Statement"); (iii) 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 Behre Dolbear Report"), with supporting documents BD-37 to BD-50; (iv) 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 Compass Lexecon Report"), with supporting documents CLEX-67 to CLEX-97; and (v) Legal Opinion of Professor Margarita Ricaurte dated 31 May 2019 ("Ricaurte Opinion"), with supporting documents PMR-1 to PMR-46.
42.
On 26 September 2019, the Respondent filed a request for the Tribunal to decide on production of documents. On 29 September 2019, the Claimant filed observations on the Respondent's request. On 2 October 2019, the Respondent filed further observations on its request of 26 September 2019.
43.
On 4 October 2019, the Tribunal issued Procedural Order No. 8, ruling on the Respondent's request of 26 September 2019.
44.
On 10 October 2019, the Respondent filed a Rejoinder on the Merits ("Respondent's Rejoinder") and Reply on Jurisdiction ("Respondent's Reply"), both dated 9 October 2019, with exhibits R-155 to R-197 and legal authorities RL-139 to RL-175. The pleading was also accompanied by three witness statements and four expert reports, as follows: (i) Second Witness Statement of Ms. Brigitte Baptiste dated 9 October 2019 ("Second Baptiste Statement"); (ii) Second Witness Statement of Mr. Javier García Granados dated 9 October 2019 ("Second García Granados Statement"); (iii) Witness Statement of Mr. Carlos Sarmiento dated 9 October 2019 ("Sarmiento Pinzon Statement"); (iv) Expert report of Charles River Associates (CRA) dated 9 October 2019, prepared by Dr. James C. Burrows and Dr. Tiago Duarte-Silva ("Second CRA Report"), with supporting documents CRA-94 to CRA-159; (v) Expert report of Mr. Mario E. Rossi dated 9 October 2019 ("Second Rossi Report"), with supporting documents MR-49 to MR-78; (vi) Expert Report of Mr. Christopher Johnson dated 9 October 2019 ("Johnson Report"), with supporting documents CJ-1 to CJ-30; and (vii) Expert Report of Prof. Felipe de Vivero Arciniegas dated 9 October 2019 ("Vivero Arciniegas Report"), with supporting documents PFDV-1 to PFDV-12.
45.
On 8 November 2019, the Claimant filed an application requesting that the Tribunal (i) strike from the record of the arbitration certain sections of the Johnson Report on the basis of Rule 31(3) of the ICSID Arbitration Rules or, alternatively, (ii) grant the Claimant the right to make a written submission, with additional expert evidence, by 18 December 2019 in response only to the offending sections in the Johnson Report. On 18 November 2019, the Respondent filed observations requesting that the Tribunal reject the Claimant's application in full.
46.
On 25 November 2019, the Tribunal issued Procedural Order No. 9 by which it granted (i) the Claimant, the right to file a written response to the sections in the Johnson Report that it deemed to be offending by 18 December 2019, and (ii) the Respondent, the opportunity to address the response filed by the Claimant at the oral hearing.
47.
On 6 December 2019, the Claimant filed a Rejoinder on Jurisdiction dated 5 December 2019 ("Claimant's Rejoinder on Jurisdiction"), with exhibits C-447 to C-457 and legal authorities CL-199 to CL-216.
48.
On 19 December 2019, pursuant to Procedural Order No. 9, the Claimant submitted the Third Expert Report of Behre Dolbear dated 18 December 2019, with supporting documents BD-51 to BD-64 ("Third Behre Dolbear Report").

E. Hearing-Related Procedural Milestones

49.
On 16 December 2019, the Parties informed the Tribunal of the expert and factual witnesses that they wished to call for cross-examination at the hearing.
50.
On 18 December 2019, each Party confirmed to the opposing Party, with a copy to the Tribunal, the order in which it wished to cross-examine the other Party's expert and factual witnesses.
51.
On 20 December 2019, the President of the Tribunal held a pre-hearing organizational meeting with the Parties by telephone conference pursuant to Section 20.1 of Procedural Order No. 1.
52.
On 27 December 2019, the Tribunal issued Procedural Order No. 10 concerning the organization of the hearing.
53.
On 6 January 2020, the Respondent informed the Tribunal and the Claimant of the inability of one of its fact witnesses, Ms. María Isabel Ulloa, to attend the hearing. The Respondent requested that Ms. Ulloa be allowed to testify at a later date in late February or March 2020. On the same date, the Claimant reserved its right to cross-examine Ms. Ulloa at a later date and proposed to revisit the issue at the end of the hearing in order to determine whether her cross-examination would in fact be necessary.
54.
On 7 January 2020, the Tribunal confirmed the Claimant's right to decide within 21 days of the end of the hearing whether it wanted to arrange a subsequent date to cross-examine Ms. Ulloa.
55.
On 7 January 2020, the Claimant confirmed that it had couriered to the Tribunal members and the Secretary of the Tribunal a USB drive containing the Electronic Hearing Record (i.e., copies of all pleadings, witness statements, expert reports, exhibits, legal authorities, translations, decisions and orders in the arbitration file, with a unified hyperlinked index, as jointly agreed by the Parties).8

F. The Hearing

56.
A hearing on jurisdiction, merits and quantum was held in Washington, D.C. from 20 to 24 January 2020 (the "Hearing"). The following persons were present at the Hearing:

Tribunal:

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

ICSID Secretariat:

Ms. Ana Constanza Conover Blancas Secretary of the Tribunal

For the Claimant:

Counsel

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

Parties

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.

Witnesses

Mr. Mark Moseley-Williams
Mr. Wilmer González Aldana

Experts

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

Hearing Consultant

Ms. T-zady Guzman FTI Consulting

For the Respondent:

Counsel

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

Parties

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.

Witnesses

Ms. Brigitte Baptiste
Mr. Javier García Granados
Mr. Carlos Sarmiento
Ms. Luz Helena Sarmiento

Experts

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

Court Reporters:

Ms. Dawn Larson Worldwide Reporting, LLP
Ms. Marta Rinaldi D-R Esteno
Ms. María Eliana Da Silva D-R Esteno

Interpreters:

Ms. Silvia Colla
Mr. Daniel Giglio
Mr. Charles Roberts

57.
The following persons were examined during the Hearing:9

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

58.
During the Hearing, in addition to the substitute USB drive containing the Electronic Hearing Record, the Parties provided the following materials:

The Claimant:

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);

and

CH-7: Presentation of Compass Lexecon (24 January 2020).

The Respondent:

> 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).

59.
In accordance with Procedural Order No. 1, which provided that hearings would be open to the public, except when necessary to protect confidential information, the Hearing was broadcast to a public viewing room at the World Bank headquarters.

G. Post-Hearing Proceedings

60.
On 28 January 2020, the Tribunal issued Procedural Order No. 11, providing guidance regarding the Parties' post-hearing briefs - to be filed by 28 February 2020 - and posing the following six questions to the Parties:

"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."

61.
On 11 February 2020, the Government of Canada ("Canada") wrote a letter to the Tribunal providing written notice to the disputing parties and to the Tribunal that Canada intended to exercise its right to file a non-disputing submission on questions of interpretation of the Treaty pursuant to Article 827(2) of the FTA.
62.
On 12 February 2020, the Tribunal invited Canada to file its written submission by 4 March 2020 and noted that the disputing parties would then have 21 days upon receipt of said submission to file observations on Canada's submission.
63.
On 13 February 2020, the Claimant sent a letter to the Tribunal requesting the Tribunal to place certain conditions and parameters on Canada's submission and the responsive submissions of the Parties.
64.
On 17 February 2020, the Parties were invited to provide a joint booklet containing all the relevant legislation in Spanish and English and in chronological order so as to assist the Tribunal in preparation for the Tribunal's deliberations scheduled for 5 March 2020.10
65.
On 18 February 2020, the Respondent sent a letter to the Tribunal conveying its endorsement to Canada's filing of a non-disputing party submission and deferring to the Tribunal as to when and in which conditions the Tribunal wished to receive such submission and the Parties' comments thereto.
66.
On 19 February 2020, the Tribunal wrote to the Parties and to Canada, inter alia, as follows:

"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."

67.
On 27 February 2020, the Claimant requested a 48-hour extension to the deadline for filing the post-hearing briefs. On the same date, the Respondent opposed the extension request.
68.
On 27 February 2020, the Tribunal granted the Claimant's extension request and noted that the Parties could file their respective post-hearing briefs by 1 March 2020.
69.
On 27 February 2020, Canada filed its non-disputing party submission ("Canada's Non- Disputing Party Submission").
70.
On or about 28 February 2020, the Parties provided a Joint Booklet of Relevant Legal Instruments to the Tribunal in hard copy.
71.
On 1 March 2020, the Parties filed their respective post-hearing briefs. The Claimant's submission was accompanied by an Annex containing corrections to the Hearing transcript ("Claimant's Post-Hearing Brief"). In footnote 212 of the Claimant's Post-Hearing Brief, reference was made to a new, unnumbered, legal authority (i.e., Constitutional Court, Judgment T-299, 3 April 2008). The Respondent's submission was accompanied by a Consolidated List of Exhibits (on account of the reference made in the said submission to twelve new legal authorities - RL-176 to RL-187) ("Respondent's Post-Hearing Brief").
72.
On 3 March 2020, the Parties filed their respective comments on Canada's Non-Disputing Party Submission.
73.
On 5 March 2020, the Tribunal held a deliberations session in London, United Kingdom. Further sessions were held via Zoom on 8 February 2021 and 25 March 2021.
74.
No notification was received from the Respondent pursuant to paragraph 41 of Procedural Order No. 10 with regard to the corrections to the Hearing transcript attached to the Claimant's Post-Hearing Brief.
75.
On 6 November 2020, 12 March 2021 and 6 August 2021, the Tribunal updated the Parties with regard to the status of its ruling pursuant to paragraph 5.3 of Procedural Order No. 1.

III. THE PARTIES' REQUESTS FOR RELIEF

A. Eco Oro's Request for Relief

76.
In its Rejoinder on Jurisdiction,11 the Claimant requests the following relief:

(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

B. Colombia's Request for Relief

77.
In its Reply on Jurisdiction,13 the Respondent requests the Tribunal to dismiss Eco Oro's claims for lack of jurisdiction.
78.
In its Counter-Memorial,14 the Respondent requests the following relief:

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

IV. FACTUAL BACKGROUND

79.
The following summary of facts is based on the Parties' submissions and is without prejudice to the relevance of these facts for the decisions of the Tribunal. The Tribunal does not purport to set out all facts it has considered for the purposes of this Decision. The absence of reference to particular facts or assertions, or to the evidence supporting any particular fact or assertion, should not be taken as an indication that the Tribunal did not consider those matters. The Tribunal has carefully considered all evidence and arguments submitted to it in the course of these proceedings. Annex A hereto is a detailed chronology prepared by the Tribunal on the basis of the documentary and witness evidence which contains those facts which seem to the Arbitral Tribunal to be of relevance in order to set the matters in issue in this arbitration into context.

A. Dramatis Personae

(1) Eco Oro

80.
Eco Oro (named Greystar until August 201116) is a small mining company17 incorporated under the laws of British Columbia, Canada.18 Eco Oro was listed on the Toronto Stock Exchange ("TSE") and, as from 23 October 2017, started trading on the Canadian Stock Exchange ("CSE").19 Eco Oro has received investments from different entities, notably the International Finance Corporation ("IFC"),20 a member organization of the World Bank Group focused on private sector investments, Trexs Investments LLC ("Trexs"),21 a Delaware company, subsidiary of Tenor Capital Management Company (Tenor), that invests in companies with international treaty and arbitration claims22 and others.23 Eco Oro was amongst the first foreign mining companies to invest in Colombia's emerging mining sector.24 Although Eco Oro considered Colombian country risk to be significant -Colombia having been home to South America's largest and longest-running insurgency, along with the risk of regulatory changes- it did not consider such risks to be an impediment to continuing operations.25 Eco Oro's investment in Colombia has been recognized and cited as an example to prospective investors in the Colombian mining sector.26
81.
Eco Oro owns 100% of the 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 (the "Angostura Project" or "Project").27
82.
In addition to being the recipient of prizes and recognitions in Canada,28 Eco Oro has received the following awards in Colombia:

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

(2) Republic of Colombia

83.
With more than 54,000 species registered in the Global Biodiversity Information Facility (GBIF), Colombia shares first place with Brazil in terms of biodiversity in the world and is identified by the United Nations Environment Programme as one of the 17 megadiverse countries that are home to 70% of the biodiversity in the world on only 10% of its territory. Colombia ranks number one in terms of biodiversity in birds and orchids, second in plants, amphibians, freshwater fish and butterflies, third in reptiles and palm trees and fourth in mammal diversity. 32
84.
Colombia's Political Constitution of 1991 ("Political Constitution")33 is designated as the Green Constitution34 as a consequence of the fact that environmental protection is at the heart of Colombian society and law. As far back as 1992, in its Judgment T-411/92, the Constitutional Court of Colombia,35 stated that:

"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. "

85.
According to Colombia, it has "a particularly significant moral responsibility to conserve and preserve its environment for the benefit of the planet and mankind."36 Articles 8, 58, 79 and 80 of the Political Constitution establish the State's duty and the particulars of protecting the nation's natural wealth; the prevalence of general interest on the matter and the social and ecological function of ownership; the collective right to enjoy a healthy environment; the protection of diversity and integrity of the environment and preservation of the areas of special ecological importance as well as the State's duty to plan the management of natural resources to guarantee sustainable development, their preservation and restoration and prevent and oversee environmental impairment factors. Colombia is also a party to several environment-related international conventions, inter alia, the 1971 Ramsar Convention on Wetlands of International Importance (the "Ramsar Convention")37 and the 1992 Convention on Biological Diversity (the "Biodiversity Convention").38 Colombia has a diversified economy, which is guided by the principle of sustainable development. Mining has been one of its key sectors.39

B. Páramo Ecosystems

86.
Páramos are high-mountain ecosystems that play a central role in maintaining biodiversity, premised on a unique capacity to absorb and restore water. In South America, páramo ecosystems form the so-called 'pearl necklace' along the Andean Mountains. In Colombia, 37 páramo complexes have been identified, representing about 50 percent of the world's páramo ecosystems. Páramos have highly endemic flora and fauna. The Santurbán Páramo provides water to around 2.5 million people in 68 surrounding municipalities.40 Indeed, Colombia views the páramo ecosystems as "environmental jewels".41

C. Relevant Governmental Authorities

(1) Environmental Authorities42

87.
On 22 December 1993, the Congress of Colombia enacted Law No. 99 of 1993 ("General Environmental Law"), inter alia, formulating the principles that govern Colombian environmental policy, creating the Ministry of Environment ("MinAmbiente") and reorganizing the Public Sector in charge of the management and conservation of the environment and the renewable natural resources.43
88.
Articles 1(2) and (4) of the General Environmental Law formulate the general environmental principles that: (i) the country's biodiversity, as it is a national heritage site and of interest to humanity, must be protected first and foremost and maximized sustainably; and (ii) páramos, low páramos, water springs, and aquifer recharging zones must be especially protected.
89.
Pursuant to Article 2 of the General Environmental Law, MinAmbiente is "the lead agency for the management of environment and renewable natural resources, and shall be in charge of promoting a relationship of respect and harmony between man and nature and of defining, pursuant to this Law, the policies and regulations to which the recovery, conservation, protection, regulation, handling, use and exploitation of the Nation's renewable natural resources and environment shall be subject, in order to guarantee sustainable development." Article 2 further determines that MinAmbiente, "jointly with the President of the Republic and ensuring the participation of the community, shall develop the national policy on environment and renewable natural resources, so that the right of all the persons to enjoy a healthy environment is guaranteed and the Nation's natural heritage and sovereignty is protected."
90.
Article 23 of the General Environmental Law created the Regional Autonomous Corporations, public corporate entities charged with "administering, within the area under their jurisdiction, the environment and renewable natural resources, and promoting sustainable development in compliance with the legal provisions and the policies of the Ministry of Environment." In the area of the Project, the two competent Regional Autonomous Corporations are the Regional Autonomous Corporation of the North-East Border ("CORPONOR") and the Regional Autonomous Corporation for the Defence of the Bucaramanga Plateau ("CDMB").
91.
Article 19 of the General Environmental Law further created the Alexander Von Humboldt Institute ("IAvH"), a civil non-profit corporation, of a public nature but subject to the rules of private law, "charged with conducting basic and applied research on the genetic resources of the national flora and fauna and with drawing up and preparing the scientific biodiversity inventory in all the national territory" and "in charge of the applied scientific investigation in relation to the biological and hydrobiological resources in the continental territory of the Country."
92.
MinAmbiente was restructured in 2011, its designation - Ministry of Environment, Housing and Territorial Development (MADVT) - being substituted by Ministry of Environment and Sustainable Development (MADS).44
93.
On 27 September 2011, the National Environmental Licensing Agency ("ANLA") was created so as "to take care of the study, approval and issuance of environmental licences, permits and processes that will contribute to improve the efficiency, efficacy and effectiveness of environmental management and sustainable development."45 This Special Administrative Unit substituted the Directorate of Environmental Licenses and Permits, which acted on behalf of the MinAmbiente between 1993 and 2011.

(2) Mining Authorities

94.
According to Article 317 of the Mining Code 2001, the Ministry of Mines and Energy ("MinMinas") is the default mining authority.46 The objective of MinMinas is to formulate, adopt, direct and coordinate the policies, plans and programs of the Sector of Mines and Energy.47
95.
MinMinas delegated certain administrative functions to the following entities:

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

D. Eco Oro's Investment in the Angostura Project and the Measures Adopted by Colombia

(1) Open-Pit Mining Project

96.
At the recommendation of a former director of Eco Oro,51 in the early 1990s, Eco Oro decided to invest in a gold-silver deposit located in Angostura, within the California-Vetas Mining District, a region of longstanding mining tradition.52 This deposit, together with the La Bodega and La Mascota gold-silver deposits, is distributed over a ~4 km interval of an 11 km long, NE trending high to intermediate sulphidation epithermal system that forms the core of the California-Vetas gold district. The deposits occur in that order, from NE to SW, and are located in the western branch of the Eastern Andean Cordillera of northeastern Colombia near the border with Venezuela, some 400 km NNE of the Country's capital, Bogotá, and ~67 km NE of the city of Bucaramanga, the capital of the Department of Santander. The deposit is situated at elevations of from 2,400 to 3,500 metres above sea level ("masl").53

Exhibit MR-11

97.
Gold is reported to have been discovered in the California-Vetas district as early as 1549 during a Spanish military action, although it had already been the site of much earlier artisanal activity by the indigenous Sura people. Spanish colonials exploited two open-pit operations in the district at San Antonio in the La Baja portion and at La Perezosa, immediately SW of La Mascota and NE of Angostura respectively. Production continued on a small scale through the next two and a half centuries. In the early 19th and 20th centuries the British company Colombian Mining Association and French company Francia Gold and Silver undertook operations that included a mill and smelter just outside the town of California. In 1947, the Anaconda Copper Mining Company took an option on a property at La Baja that encompassed the present La Bodega deposit and conducted exploration via tunneling and 746 m of drilling. Core recoveries were reportedly so poor that insufficient information was available to justify a large option payment and Anaconda withdrew. Nippon Mining Company undertook drilling in the La Baja area in 1967, whilst exploration was undertaken by Placer Development and INGEOMINAS in the 1970s and 1980s respectively.54
98.
On 28 October 1994, Eco Oro entered into an assignment agreement with Mr. Crisanto Peña and with Minas Los Diamantes of Permit 3452.55 Permit 3452 had originally been granted in 1988 to Mr. Crisanto Peña and to Mr. José Alfredo Rangel and entitled its holders to explore and exploit precious metals in a 250-hectare area within the Angostura gold deposit.56 Permit 3452 was governed by Decree 2477 of 198657 and expressly provided that the area encompassed by Permit 3452 did not fall within the scope of Article 20 of said Decree, which provides as follows:

"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."

99.
In 1995, Eco Oro started carrying out a program of surface mapping, sampling and diamond drilling.58 Between 1995 and 2001, Eco Oro acquired additional rights over the Angostura deposit.59 Eco Oro has also acquired other titles, which are not directly relevant to the matter at hand in these proceedings.60

Exhibit C-375

100.
On 6 June 1997, the Congress of Colombia enacted Law 373 of 1997,61 Section 16 of which establishes the following:

"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]

101.
After obtaining CDMB's approval of the relevant Environmental Management Plan ("PMA") for the exploratory stage of the mining project for Permit 3452 (in June 199 762), Eco Oro announced its first resource estimates, in the region of several million ounces, in September 1997.63 One year later, Eco Oro published a news release stating that the previous resource estimate had been doubled in volume and which contemplated an open pit mine or an underground mine.64 This estimate was again updated in November 2005 declaring indicated and inferred resources of 10.3 million ounces of indicated and inferred resources of gold65 and by mid-2006 the declared resources were increased by a further million ounces of gold. By January 2009 gold resources of over 15 million ounces were declared66 and by August 2010 Eco Oro estimated over 11 million ounces of measured, indicated and inferred gold.
102.
The 2001 Mining Code67 came into force in September 2001. The Deputy Minister of Mines stated that the aim of the reforms achieved by the 2001 Mining Code was to ensure "a more modern legislation, which gives legal stability to investors, in accordance with international standards."68 The 2001 Mining Code provided for three phases: exploration, construction and exploitation in one unified concession contract.69 It further provided, inter alia, as follows:

"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]

103.
The 2001 Mining Code also contained a provision allowing for the integration of areas founded in different mining titles, pursuant to which Eco Oro applied for the integration of the areas encompassed by its different titles.70 As Eco Oro's titles were governed by different statutes, Eco Oro requested that the provisions of the 2001 Mining Code be applied to all its titles (acogimiento) and agreed that the resulting concession contract would be considered to be in the exploration phase.71 In February 2007, INGEOMINAS authorized the integration of the areas of ten of the mining titles held by Eco Oro within the Angostura deposit.72 In its Resolution, INGEOMINAS further established the following:

"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]

104.
On 8 February 2007, Eco Oro and INGEOMINAS entered into a 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 with INGEOMINAS ("Concession 3452").73 Concession 3452 was registered with the Mining Registry on 9 August 2007.74
105.
In May 2007, the IAvH published the 2007 IAvH Páramo Atlas (the "2007 Atlas"),75 which was prepared on a scale of 1:250,000. The IAvH established a lower limit for the bioclimatic zone of the sub-páramo being 3200 masl which resulted in a 54% overlap of the Santurbán Páramo and the area of Concession 3452.
106.
On 16 April 2008, Eco Oro filed an amended PMA with CDMB further to the integration of the areas of its mining titles.76 Whilst there is no reference in the file as to whether this PMA was approved, there are subsequent acts by CDMB determining that Eco Oro's activities were generally compliant with environmental requirements and approving the Environmental Audit Reports submitted by Eco Oro on the basis of an approved PMA77 on the basis of which, Eco Oro contends, it understood its amended PMA had been approved.78
107.
On 20 March 2009, Eco Oro announced that the IFC had completed an investment in the company.79 The investment was preceded by an Environmental & Social Review by the IFC, which, on the basis of baseline studies undertaken by Ingetec, highlighted the fact that the area of influence of the Project enshrined a "habitat of key importance", "the páramo, an area of significant biological relevance defined by Colombian legislation ."80
108.
On 23 September 2009, Eco Oro submitted its Construction and Works Plan (Plan de Trabajo y Obras) ("PTO") to INGEOMINAS.81 The filing of a PTO is required by Article 84 of the 2001 Mining Code prior to the expiry of the exploration phase and is presented for the approval of the competent environmental authority. Exploitation cannot be commenced without, inter alia, such approval. Section 1.9.2 of the 2009 PTO was titled "Main environmental and social problems" and states "[t]he proximity of project Angostura to the Santurbán Páramo is something to be taken into account, because the lakes are situated in the area [...]." The plans which were to be submitted with the PTO were delivered on 10 February 2010.
109.
On 22 December 2009, Eco Oro applied for a Global Environmental License to MinAmbiente. Among other materials provided, Eco Oro submitted an Environmental Impact Study ("EIA") prepared by Unión Temporal Vector and Ingetec pursuant to the Terms of Reference provided by MinAmbiente.82 This EIA identified a significant presence of páramo and subpáramo ecosystems in the Concession area. On 13 January 2010, MinAmbiente ordered the commencement of an administrative procedure for the grant of a Global Environmental License. 83
110.
On 9 February 2010, Law 1382 of 2010 was enacted.84 Pursuant to Article 3 of this Law, Article 34 of the 2001 Mining Code was amended to include an express reference to "páramo ecosystems" amongst the areas in which mining operations could be prohibited, reading, in relevant part, as follows:

"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."

111.
Article 3, paragraph 1, further contained a grandfathering provision providing that:

"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."

112.
Article 3, paragraph 3, in turn specified that:

"The declaration of the exclusion areas referred to in this section requires the Ministry of Mining and Energy's prior non-binding opinion."

113.
On 20 April 2010, MinAmbiente ordered that the EIA be returned to Eco Oro, on the grounds that the project was located in a páramo zone as delineated according to the 2007 Atlas.85 The Order issued by MinAmbiente further made reference to the amendment of Article 34 of the 2001 Mining Code introduced by Article 3 of Law 1382 of 9 February 2010, noting that "in order to define the [mining] exclusion area [...] reference must be made to the definition of the [IAvH], as established by said law." The Order issued by the MinAmbiente requested Eco Oro to present a new study taking into account the so-called "Páramo of Santurbán" ecosystem as an area excluded from mining activities.
114.
This decision generated significant concern both within Eco Oro and in the market at large. Eco Oro was concerned that almost all its activities were above 3200 masl thus coming within the boundaries of the 2007 Atlas, including half of the open pit area, and this decision effectively stopped the project, causing it to be potentially unfeasible or uneconomic.86 Eco Oro published a news release on 26 April 20 1 0,87 which was echoed in several specialised news outlets.88 Eco Oro's market value collapsed that day.89
115.
On 29 April 2010, Eco Oro filed a request for reconsideration of the 20 April 2010 order issued by MinAmbiente, on the basis that Eco Oro's application had been submitted under the prior iteration of Article 34 of the 2001 Mining Code and, therefore, should be considered under such provisions and not the amended provisions introduced by Law 1382.90 Eco Oro also referred to the consolidation of its mining titles and to the fact that it had adhered to the provisions of the 2001 Mining Code, which contained Article 46 which Eco Oro invoked to argue that Law 1382 should not apply retroactively to the Concession. Eco Oro further argued that, even if Law 1382 were applicable, the requirements set out in Article 34 of the 2001 Mining Code as amended by said law had not been complied with. Eco Oro noted that the IAvH was not an environmental authority and therefore had no jurisdiction to declare a mining exclusion zone. Eco Oro was concerned about the impact of MinAmbiente's decision and, in a report to the Board of Directors, the CEO noted that a "comprehensive communication plan [had] to be developed to inform and shape Government and public opinion that mining can be conducted responsibly alongside preservation of páramo and water resources."91 It was also noted that CDMB was "getting more vocal on preservation of páramo" and that the publicity given to Eco Oro's permit issue was attracting the attention of NGOs who supported protection of the páramo and water resources from the activities of miners.
116.
On 19 May 2010, Eco Oro reported internally that it had had a "very good meeting with Martinez the Mines Minister" who had said the "Governments [sic] definitely wants the project to go ahead."92
117.
On 27 May 2010, MinAmbiente overturned its previous order and directed that the assessment of Eco Oro's EIA be resumed on its merits.93
118.
As a part of the procedure required to be followed with respect to mining applications, MinAmbiente held public hearings in California and in Bucaramanga. The meeting in California, in November 2010, registered support for Eco Oro's mining project,94 while the one held in Bucaramanga in March 2011 was suspended due to violent confrontations.95 Several demonstrations took place in different parts of the country, some of them in support of the mining project and some others in support of páramo protection and water quality.96
119.
On 4 October 2010, pursuant to Order GTRB-0485,97 the Bucaramanga Regional Working Group of INGEOMINAS asked Eco Oro to complete its PTO with respect to "the definition of dumps, drilling and blasting, reservoirs, exploitation fronts, leaching piles and geology as well as plans, schedules, etc." Eco Oro was notified of this request two months after the date of the order and given two months to obtain the requested documentation. Documentation was provided on 24 January 2011, 18 February 2011 and 22 February 2011 and, on 14 March 2011, Eco Oro provided hydrogeological and stability studies.
120.
On 15 December 2010, INGEOMINAS approved Eco Oro's application for the first two-year extension of the exploration stage under Concession 3452.98 Unlike subsequent extension decisions, INGEOMINAS did not refer in this extension approval to there being any limitation on Eco Oro's activities within the area of the Concession.
121.
On 20 January 2011, INGEOMINAS notified Eco Oro of its Technical Opinion on the hydrogeological chapter of Eco Oro's PTO,99 which contained serious reservations about the hydrogeological model presented by Eco Oro and recommended that Eco Oro carry out a "more exhaustive work [...] in the hydrogeological research that would lead to minimizing the uncertainties shown in the model."
122.
On 22 February 2011, INGEOMINAS designated Concession 3425 and the Project a Project of National Interest ("PIN").100 Among the reasons for that decision, INGEOMINAS set out the following:

"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."

(2) Underground-mining Project

123.
On 23 March 2011, after certain groups from outside the California and Vetas area voiced their opposition to the open pit project based on its perceived environmental impact and after internal discussions and the consideration of alternative solutions,101 Eco Oro requested that it be permitted to withdraw its Environmental License application.102 Eco Oro made clear that it was not fully withdrawing from the Project and clarified that the intent was "simply to desist from on-going environmental licensing to allow for a future re-filing in the terms that reflect concerns."103 As an alternative to the open pit project, on 18 March 2011 reference was first made to an underground-mine, in a news release addressing the purported celebration by IAvH of Eco Oro's withdrawal from the Project.104 However, on 31 May 2011, MinAmbiente decided not to accept Eco Oro's withdrawal request but to continue sua sponte with the administrative procedure.105 It proceeded to refuse to grant the global environmental licence requested by Eco Oro. (This decision was confirmed by ANLA on 31 October 2011.106)
124.
On 11 May 2011, the Colombian Constitutional Court rendered Judgment No. C-366, whereby Law 1382 of 2010 was declared unconstitutional on the basis of lack of prior consultation.107 However, the effects of this declaration of unconstitutionality were deferred for a term of two years.
125.
On 24 May 2011, INGEOMINAS decided not to continue the assessment of the PTO following Eco Oro's request to withdraw it.108
126.
On 25 May 2011, MinAmbiente issued Resolution No. 937.109 Article 1 provided that its purpose was "[t]o adopt the cartography mapped at 1:250,000 scale provided by the [IAvH] set forth in the so-called Atlas of Colombian Páramos [i.e., the 2007 Atlas110] for the identification and delimitation of Páramo Ecosystems." Article 1 further provided in relevant part as follows:

"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."

127.
On 16 June 2011, Law 1450 of 2011 (the 2010-2014 National Development Plan) was enacted.111 Article 202 of this Law provided in relevant part as follows:

"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

128.
On 27 September 2011, MinMinas shared its opinion on this provision with INGEOMINAS as follows:113

"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."

129.
Brigitte Baptiste, Head of the IAvH, commented on this provision and on the provisions of the late Law 1382 of 2010114 nearly two years later (on 27 June 2013), as follows:

"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."

130.
On 20 June 2011, Eco Oro requested Terms of Reference for the preparation of an EIA for an underground mine, as an alternative to an open pit mine.115 On 27 February 2012, ANLA provided the Terms of Reference and, due to the Project's location, invited Eco Oro to take into consideration in its EIA that the delimitation of the Santurbán Páramo at a scale of 1:25,000 was underway pursuant to the provisions of Law No. 1450 and that the provisional boundaries of the páramo had been set forth in the cartography of the 2007 Atlas.116
131.
At around this time, Eco Oro carried out a corporate rebranding,117 which signalled a significant change in corporate identity. According to Eco Oro's President and CEO at the time, "[t]he Greystar name has negative associations with Government in Colombia and in Bucaramanga. Rebranding is necessary. This can be achieved through renaming the Colombian company or through a corporate transaction. Clearly Government and public do not trust a junior with no CV to develop a large and sensitive project."118 In a letter to MinMinas in 2013,119 Eco Oro summed up those changes as follows:

"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."

132.
On 15 August 2011, after the corporate rebranding and change of direction had taken place, the FTA came into force.120
133.
The following year, on 23 March 2012, Eco Oro announced its first resource estimates for the underground-mine project.121
134.
On 27 August 2012,122 ANM approved Eco Oro's application123 for the second two-year extension of the exploration stage under Concession 3452 ("Resolution VSC 2").124 In this decision, ANM highlighted that the extension was granted exclusively for the area that did not overlap with the PZ Jurisdicción-Santurbán Páramo zone. ANM further ordered that, once the decision became final, the areas overlapping with the páramo be handed over pursuant to Article 82 of the 2001 Mining Code. On 29 August 2012, Eco Oro requested that Resolution VSC 2 be revoked in its entirety.125 On 12 September 2012, ANM issued Resolution VSC 4,126 whereby it amended its previous Resolution, stating that:

"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]

135.
On 16 January 2013, CDMB created the second park in the Santurbán area, the Santurbán Regional Park, the first park in that area, the Sisavita Regional Natural Park, having been created by CORPONOR in June 2008.127 Eco Oro's initial assessment was that the officially declared boundaries should not impede development of the Project, although significant portions of its property (both mineral holdings and surface rights) fell within the boundaries of the Santurbán Páramo Park, in relation to which Eco Oro reserved its rights.128
136.
In May 2013, Eco Oro received a Report that it had commissioned ECODES Ingeniería Ltda. ("ECODES") to prepare titled "State of Preservation of Biodiversity in the Ecosystems of the Angosturas Sector, Municipality of California, Department of Santander."129 According to this Report, "within the Páez-Angosturas polygon, no coverages typical of the páramo ecosystems were found" (the "ECODES Report").130 Eco Oro circulated the ECODES Report to several government recipients131 and its contents were referred to by MinMinas in a presentation concerning the delimitation of the Santurbán Páramo.132
137.
On 19 June 2013, the ANM again declared the Project a PIN.133
138.
On 26 July 2013, Brigitte Baptiste, Head of the IAvH, gave a presentation to the Fifth Constitutional Commission of the Colombian Congress during which she said:134

"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. "

139.
On 30 July 2013, on the basis of the restriction contained in Resolution VSC 4, which Eco Oro understood to be "presently indicative and temporary",135 Eco Oro requested from the ANM a suspension of activities "until the final delimitation of the Santurbán ecosystem on a 1:25,000 scale is disclosed."136 This request was based on the provisions of Article 54 of the 2001 Mining Code stating "technical, logistic and legal reasons" and attaching a document named "Technical Considerations on the Suspension of Activities under Mining Concession Agreement 3452." This suspension request was granted by Resolution VSC 1024 on 5 December 2013 for the term of six months commencing on 1 July 2013.137 That suspension was extended for a further six months on 17 January 20 1 4138 and again on 21 July 2014.139
140.
During the suspension, Eco Oro reported situations of galafardeo (unauthorized mining activities) occurring in the areas encompassed by the Concession Contract 3452.140 This situation resurfaced later in June 2016.141 Illegal mining has been an issue that the Colombian mining sector has been facing for decades. It was mentioned, for instance, in the Assignment Contract entered into between Greystar and Minas Los Diamantes in 1994.142 This type of activity is particularly harmful, as illegal miners use mercury, arsenic, cyanide and explosives.143 The existence of illegal mining activity in the areas granted to Eco Oro was also reported by the press144 and acknowledged by some Colombian authorities.145
141.
On 9 September 2013, the Attorney General sent a letter to MinAmbiente, MinMinas and ANM.146 In this letter, the Attorney General stressed that the Colombian economic model defined in the Political Constitution contemplated two key concepts so far as mining is concerned: (i) mining, as with any other activity that has an impact on the environment, must be developed responsibly and subject to strict environmental standards that ensure compliance with the Colombian Constitution, especially, Article 80; and (ii) mining is a lawful activity defined by law as being of social interest and public utility; it is broadly regulated by the Colombian legal system and contributes to Colombian growth and development. In that context, the Attorney General requested the addressees of its letter, inter alia, to:

"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."

142.
On 11 October 2013, the Santander Mine Workers' Union (SINTRAMISAN) sent a letter to MinAmbiente147 stating, inter alia, the following: "We only request that you DO NOT LIMIT OUR LIVES, JUST DELIMIT THE SANTURBÁN PÁRAMO."
143.
On 7 November 2013, the Intersectoral Commission for Infrastructure and Strategic Projects ("CIIPE") was created. CIIPE was responsible for supporting the management and overview of Projects of National and Strategic Interest ("PINEs").148
144.
On 24 February 2014, the Mayors of Soto Norte and other Municipalities wrote a letter to MinAmbiente, countersigned by hundreds of citizens,149 stating, inter alia, the following:

"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."

145.
On 29 March 2014, Minister of Environment Luz Helena Sarmiento ("Minister Sarmiento") gave an interview to a newspaper150 during which she said:

" '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.

Why?

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 '...".

146.
The coordinates of the páramo ecosystem were not, however, published the following day (or indeed for eight months thereafter). On 1 April 2014, Eco Oro stated in a press release that MinAmbiente had announced that the boundaries of the Santurbán Páramo had been delineated but no coordinates or cartography had been received by Eco Oro. Eco Oro further noted that once it had received the cartography, it would assess the impact of the delineation of the páramo on its assets.151
147.
On 6 August 2014, ANM approved Eco Oro's application152 for the third two-year extension of the exploration stage under Concession Contract 3452.153 In its decision, ANM reiterated that Eco Oro "may not perform exploration activities within the páramo area, pursuant to Article 202 of Law No. 1450 of 2011, until the Ministry of the Environment and Sustainable Development, or any other entity that may replace it, issues the final delimitation at a 1:25,000 scale"
148.
In August 2014, the newly appointed Minister of Environment154 visited Santander.155 During this visit, the Minister said that "The solution to this problem lies in where the boundary will be located, but the most important, complementary aspect is how to clearly guarantee that these people can continue to live in decent manner and, likewise, how to guarantee adequate supply and quality of water to the entire Bucaramanga metropolitan area [...]." To that effect, a manager, Luis Alberto Giraldo ("Mr. Giraldo"), was appointed to lead the process aimed at coordinating the various stakeholders and become acquainted first-hand with the reality of the municipalities. In performance of his duties, he visited California, Vetas and Berlín on 26 September 2014.156 On 16 October 2014, Eco Oro provided Mr. Giraldo with a document containing information on the Project.157
149.
On 8 September 2014, a newspaper article recounted the history of the Santurbán Páramo, stating that there were records of Santurbán as a páramo for more than four centuries.158
150.
On 7 October 2014, MinAmbiente sent a letter to the Consejo de Estado159 asking the following seven questions:

"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?"

151.
On 11 December 2014, the Consejo de Estado issued an Advisory Opinion,160 whereby it answered those questions in relevant part as follows:
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."

152.
On 17 October 2014, a Colombian newspaper noted that in the "last few weeks [...] [m]ultinational mining company AUX, formerly owned by Brazilian businessman Eike Batista, was transferred to a Qatari investment group, which recently bought the company for more than USD 400 million."161
153.
On 17 December 2014, the ANM sent a letter to MinAmbiente pursuant to the cooperation principle enshrined in Article 34 of the 2001 Mining Code, together with "Technical Studies conducted in the Santurbán páramo area, at scales of 1:250.000 and 1:100.000, and the proposed line based on the mines surveyed in the mining censuses of 1966, 1997, 2000, and 2010, with the respective memorandum summarizing the reasons for the proposal."162
154.
The boundaries of the Santurbán Páramo were eventually published on 19 December 2014 by means of Resolution 2090.163 The Resolution divided the páramo into three zones: (i) the preservation zone; (ii) the restoration zone; and (iii) the sustainable use zone. The same resolution made some exceptions to the general prohibition to carry out mining operations in the area. Among other exceptions, the Resolution stipulated that mining operations could be authorised and executed in the restoration zones of the páramo located in the municipalities of Vetas, California and Suratá (where Concession 3452 is located). Additionally, and generally, the Resolution contained a grandfathering provision, similar (but not identical) to that contained in Law 1382, which provided that those projects with a mining concession contract and with an environmental control and management instrument could continue with the operations despite being located in a páramo, not being nonetheless entitled to any extension. According to ANM, there were 54 current mining titles overlapping with the Santurbán Páramo, in a superimposed area of 21,200.72 hectares, corresponding to 16.3% of the páramo complex.164 According to the Mining Registry, the delimitation approved by this Resolution 2090 entailed a 54.7% of overlap with the area granted to Eco Oro under Concession 3452.165
155.
Resolution 2090 was received with intense reactions from miners and mayors of bordering Municipalities, who requested that the delimitation be reconsidered.166 This is against a background where between 1990 and 2009 the granting of mining titles in páramo ecosystems had increased significantly167 and investments in the mining sector had increased from USD 466 million in 2002 to approximately USD 3.054 billion in 2009, an increase of 555%.168 Indeed, on 19 April 2016, a newspaper article featured an interview with the Mayor of California,169 in which he stated the following:

"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.

156.
On 6 January 2015, following the delimitation of the Santurbán Páramo by Resolution 2090, ANM decided not to further extend the suspension of Eco Oro's activities, on the basis that the technical circumstances giving rise to the stay of the activities were deemed overcome.170
157.
On 25 April 2015, a newspaper article reported that President Santos attended a mining conference and stated the following: "What Colombia needs, I reiterate and would like to say it again to you, is a strong, organized and competitive mining sector, especially now that we are decisively moving in the direction towards peace and reconciliation." According to the same article, MinMinas promised at that conference "to support projects classified as projects of national interest (the well-known PINEs) such as Eco Oro's Angostura in Santurbán (Santander)."171
158.
On 9 June 2015, Law 1753 (National Development Plan 2014-2018) was enacted, which included exceptions similar to the ones in Resolution No. 2090.172 The relevant provisions of Law 1753 are as follows:

"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."

159.
Law 1753 further established that ANLA would be fully and exclusively in charge of the procedures regarding the environmental permits and licenses required for the performance of the Strategic Projects of National Interest (PINEs) and that the persons in charge of the projects validated as PINEs were to abandon any ongoing environmental procedures and resubmit them to ANLA.
160.
Eco Oro held meetings with the Minister of Mines and was informed that Ms. Claudia Pava had been appointed as an official to remain in Bucaramanga and that her main goal was to look after Eco Oro's Project, considered by the MinMinas as the "VIP" Project in the region.173 The Vice-Minister of Mines also reassured Eco Oro: "You are Pines and there are many ways in which we can help."174 Eco Oro understood that the relevant authorities were "willing to work hand in hand with Eco Oro to get the project ahead" and further that "ANLA was willing to evaluate the underground project under the páramo ecosystem, but that such a decision would be dependent upon studies showing that the hydrology of the protected area would not be affected."175 The PINES Group from MinMinas visited the Angostura Project site on 7 May 2015.176 On 26 November 2015, Eco Oro invited ANLA to take a 2 to 3-day visit to the Angostura Project, so as to have a first-hand understanding of the current status, advances and vision of the Project.177
161.
On 17 July 2015, Micon International Limited prepared a National Instrument 43-101, Standards of Disclosure for Mineral Projects NI 43-101 ("NI 43-101")-compliant resource estimate for the Angostura Project.178
162.
On 1 October 2015, CDMB granted an Award for Environmental Excellence to Eco Oro.179
163.
In December 2015, ANM published a brochure named "Exploring Opportunities."180 In this investment promotion material, ANM included a legal disclaimer to the effect that the information outlined in that publication had been prepared based on the existing rules and that those rules could be amended at any time. ANM added that "Colombia occupies the 9th place worldwide in proper climate for mining investments, improving two places since 2014 according to the report 'Where to Invest in Mining 2015' presented by the American consulting firm Behre Dolbear."181 ANM further provided information detailing those companies with projects in Colombia, mentioning "Eco Oro, Canada" (p. 24); Colombia's main institutions (pp. 26-27); the duration of the Concession Contract (p. 28); the type of duties to be paid: surface canons / royalties (p. 33); and IIAs and FTAs entered into by Colombia (p. 37). ANM warned prospective investors that they should verify whether the proposed title was or was not within the prohibited areas for mining, whether it was in an area with communities of ethnic minorities and/or in an environmental exclusion zone (p. 30). No express reference was made to páramos.
164.
On the basis of Law 1753, on 5 January 2016, Eco Oro requested ANLA to provide Terms of Reference for the preparation of an EIA for an underground-mine project.182 On 25 January 2016, ANLA replied to Eco Oro's request, asking Eco Oro to provide an executive summary of the project.183 (Eco Oro did not pursue this, however, as the Colombian Constitutional Court Judgment C-35 of 2016 referred to below, determined that the provision of such Terms of Reference was in the competence of local/regional authorities).
165.
On 8 February 2016, the Colombian Constitutional Court issued Judgment C-35 of 2016, ("Judgement C-35")184 which, inter alia, struck down the provisions of Law 1753 of 2015 that established exceptions to the general prohibition to perform mining operations in the páramo, including the exceptions that echoed the ones included in Resolution No. 2090 (mentioned above). Additionally, Judgment C-35 declared section 51 of Law 1753 unenforceable, thereby eliminating ANLA's exclusive competence regarding the environmental permits and licenses required for the performance of the PINEs.
166.
This decision was the subject of two clarification requests, one from MinAmbiente185 and the other from the ANM.186 The two requests were denied by the Constitutional Court, the first on procedural grounds187 and the second on the basis that the "jurisdiction of the Constitutional Court is expressly set forth in Article 241, and does not include a role as an advisory or consulting body to deal with the effects of its own decisions or the effectiveness of legal or regulatory provisions."188 The decision was criticised by the mining sector, which expressed concern for the "legal instability in the country which was directly affecting investments in, and the future of, mining operations."189 After analysing the impact of the unconstitutionality declaration rendered with regard to Article 173(1)(1) of Law 1753 on the performance of mining concession contracts awarded prior to 9 February 2010, CIIPE concluded that the Angostura Project could not be carried out with respect to over 60% of the mineralized area.190
167.
On 12 February 2016, Eco Oro first considered the commencement of dispute resolution proceedings under the FTA.191 On 7 March 2016, Eco Oro filed a Notice of Intent to submit the claim to arbitration.192 On 8 December 2016, Eco Oro filed its Request for Arbitration. A newspaper article dated 26 March 2016 referred to the fact that three companies were relying on the Free Trade Agreements executed by Colombia with the United States and Canada to demand that the mining agreements involving strategic ecosystems be honoured193 writing:

"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.

168.
On 30 June 2016, the IFC's Office of the Compliance Advisor Ombudsman (CAO), issued a report entitled "Compliance Investigation, IFC Investment in Eco Oro (Project # 27961), Colombia."194 Shortly thereafter, on 27 September 2016, the IFC informed Eco Oro that it was "considering divesting its interests in Eco Oro and the Angostura project"195 noting that "[g]iven recent developments in Colombia, and in particular, the ANM's recent withdrawal of a significant portion of the mining title upon which the Project depends, we take the view that the Project is unlikely to be developed further." The Center for International Environmental Law (CIEL), an NGO, noted that "[t]he IFC 's divestment not only extricates the Bank from a clear conflict of interest, but also highlights the presence of ill-advised mining projects in the Colombian páramo and the illegitimacy of the suit."196
169.
On 21 July 2016, Eco Oro entered into an Investment Agreement with Trexs ("Investment Agreement").197 According to Eco Oro's announcement of 22 July 2016198:

"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."

170.
On 26 July 2016, ANM informed Eco Oro that, on the basis of overlap between the area granted under Concession 3452 and the Santurbán Páramo Preservation Zone, "the surface canon to be paid by the concession holder [would] need to be assessed and paid solely on the non-overlapping area, provided that no mining activity [was] permitted to be carried out on the remaining piece of land."199 Eco Oro replied to ANM on 5 August 2016, insisting that the full surface canon would be paid on the basis that, to that date, Concession 3452 was valid, had not been modified and its extension was pending. 200 On 3 November 2016, ANM approved the payment of "surface canon fees in the amount of COP 118,769,899 for the tenth year of the exploration period under Concession Contract No. 3452, which shall extend from 9 August 2016 through 8 August 2017."201
171.
On 8 August 2016, Eco Oro was notified that ANM had approved Eco Oro's application for the fourth two-year extension of the exploration stage under Concession 3452.202 In its decision, ANM highlighted that the extension applied "exclusively with respect to the area that does not overlap with the ZP - JURISDICTIONS - SANTURBÁN - BERLIN páramo preservation zone."203
172.
On 13 September 2016, Eco Oro called a special shareholder meeting to be held on 13 October 2016.204
173.
On 19 September 2016, Eco Oro submitted a document named "Update of Exploration Activities Schedule Period 2016-2018 Mining Concession Contract 3452" to ANM.205 Eco Oro noted the following:

"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."

174.
On 13 October 2016, CDMB granted the Award for Environmental Performance of Cleanest Production (P+L) to Eco Oro.206
175.
On 9 November 2016, on the basis that shareholder approval was not obtained for the issuance of common shares pursuant to the Second Tranche, Eco Oro issued a Material Change Report,207 noting that it had issued CVRs and convertible notes entitling Trexs and certain existing shareholders of Eco Oro holding approximately 37% of the Eco Oro's issued and outstanding common shares prior to the closing of the Second Tranche (the "Participating Shareholders") to an aggregate of 70.93% of the gross proceeds of the present arbitration.
176.
On 5 December 2016, Eco Oro wrote to CDMB, inter alia, acknowledging the position conveyed by CDMB during a meeting to the effect that CDMB would be unable to process and grant an environmental license for the development of the Project without a Constitutional Court decision with respect to the action for the protection of constitutional rights requested from that Court against Resolution 2090 of 2014.208
177.
On 17 January 2017, Technical Opinion VSC 3 was issued by the ANM titled "Assessment of Complementary Document on the Extension of Exploration Stage" one of the conclusions of which (2.1.4.1) stated: "However, following Resolution 2090 of December 19, 2014, whereby the Santurbán Páramo is delimited, it is necessary to clarify whether mining operations in the 'Zones for the restoration of the páramo ecosystem' can be executed or not. Furthermore, it needs to be defined if this area is part of the 'Santurbán-Berlín Páramo Area.' [...] Therefore this aspect needs clarification, from a legal standpoint, as to whether mining is permitted in this area, or not, pursuant to the provisions of Resolution 2090 of December 19, 2014 and Court Judgement C-035 of February 8, 2016 on the páramos. [...]." Paragraph 2.1.4.4 noted: "Please send this technical opinion to the legal office of the Projects of National Interest Group, to make the necessary clarification."209
178.
On 8 February 2017, the ANM issued Resolution VSC 10 which, inter alia, stated:

"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

179.
On 10 February 2017, Ms. Courtney Wolfe ("Ms. Wolfe") and Harrington Global Opportunities Fund Ltd. ("Harrington"), shareholders of Eco Oro (Ms. Wolfe owning approximately 0.942% and Harrington approximately 9.05% of Eco Oro's issued and outstanding common shares) (the "Requisitioning Shareholders"), requisitioned the Board of Directors of Eco Oro to call a meeting of shareholders for the purpose of reconstituting the Board by removing each of the incumbent directors and electing six independent directors.211 On 27 March 2017, the Requisitioning Shareholders issued a Circular entitled "Let's Fix Eco Oro."212
180.
On 7 March 2017, Eco Oro requested ANM to authorise the suspension of Eco Oro's obligations under Concession 3452 pursuant to Article 51 of the 2001 Mining Code, on the basis of force majeure or unforeseeable circumstances (caso fortuito).213 According to Eco Oro, the delineation of the Santurbán Páramo had become uncertain following both Judgment C- 35 and given that a decision of the same Constitutional Court was expected in a tutela action concerning Resolution 2090. Eco Oro further alluded to an additional source of uncertainty, arising from the fact that some decisions by ANM identified that mining was prohibited in the preservation zone, whereas other decisions noted that such prohibition extended to the restoration zone as well. Finally, Eco Oro stressed that the CDMB (the environmental authority responsible for licensing the Project) had recently informed Eco Oro that, given the lack of clarity regarding the regulatory framework applicable to the Project, it was not in a position to process or grant an environmental license requested by Eco Oro so that the Angostura Project could progress to the construction and mounting and, subsequently, exploitation phases, until the litigation currently on foot was resolved.
181.
On 23 March 2017, Eco Oro replied to ANM with regard to Resolution VSC 10, noting that it was not the competent authority for making this type of determinations: the Colombian State and particularly the mining and environmental authorities were the bodies that should develop the guidelines that the mining title holder was to follow, in accordance with their own interpretation of the Law and case law.214
182.
On 24 April 2017, the Supreme Court of British Columbia rendered a Judgment215 with regard to a petition by the Requisitioning Shareholders to set aside the issuance of shares by Eco Oro's Board of Directors to Trexs, Amber Capital LP ("Amber"),216 Paulson & Co. Inc. ("Paulson")217 and Ms. Anna Stylianides ("Ms. Stylianides") on the basis of oppression. The petition was dismissed, inter alia, because the Supreme Court considered that "[t]he petitioners [were] sophisticated investors and invested in Eco Oro with their eyes open and with full knowledge of the Investment Agreements and Notes."218
183.
On 11 May 2017, during his speech in the National Mining Congress, the Minister of Mines addressed the Constitutional Court decisions that declared several articles of the 2001 Mining Code unenforceable. According to the Minister of Mines, "we have been left in a very serious situation: there are many norms and we do not know what the rule is. We fill legal loopholes with decrees." The head of the Mining department added that many of the current problems in the sector, in terms of regulation, come from "not having regulated the Constitution of 1991; for 25 years, some principles have remained open to interpretation. Winds of change started to blow and so did interpretations." The Minister of Mines further stated that "The Court is breaking a golden rule by legislating. The Court is legislating and laws are made by Congress."219
184.
On 22 August 2017, ANM refused to grant a further suspension of obligations under Concession 3452, on the basis that the events invoked by Eco Oro were not unforeseeable.220 The same Agency decided a suspension request submitted by Eco Oro with respect to a different mining title concluding that the obligations should be suspended on the basis of force majeure.221
185.
On 11 September 2017, Eco Oro announced, inter alia, that Trexs had agreed to loan USD 4 million to Eco Oro.222
186.
On 12 September 2017, Eco Oro issued a notice of annual general and special meeting of shareholders and management information circular for a meeting to be held on 10 October 2017.223
187.
Nearly one year after it had been filed, on 13 October 2017, ANM approved the PTO filed by Sociedad Minera de Santander S.A.S. ("Minesa") - the holder of a mining concession that was completely surrounded by Concession 3452 - for the furtherance of its Soto Norte mining project "provided that its execution does not interfere with the rights of the holders of concession contract No. 3452 and Exploitation License 0105-68 and other holders that could be affected."224 On 8 November 2017, Eco Oro appealed that decision.225 On 21 November 2017, the Minister of Environment stated that the decision over the environmental license to be granted to Minesa would be put on hold until the delimitation of the Santurbán Páramo is revised.226 The Minister of Environment further stated that "[e]ach potential effect must be examined in detail because it is a lie that we are trying to swap water for gold." On 21 March 2019, ANM decided not to reverse its decision.227
188.
On 17 October 2017, Trexs announced that the convertible note had been rescinded and that, following the rescission, Trexs was "the owner of and has control and direction over 10,608,225 Shares, or approximately 9.9% of the Shares issued and outstanding following the recission and the recission of certain other Share issuances effected on the conversion of other Notes."228
189.
On 10 November 2017, the Colombian Constitutional Court published Judgment T- 361/17 (dated 30 May 2017) rendered in a tutela action, whereby Resolution 2090 was struck down and a re-delimitation of the Santurbán Páramo was required due to lack of public consultation.229 In this decision, the Constitutional Court asserted that MinAmbiente had "acted in bad faith insofar as it interpreted the law in a manner that hindered access to information. This is so because it refused to provide the maps that were communicated on March 31, 2014 on the grounds that it had not yet issued the delimitation administrative decision, an argument that ignores the fact that the request concerned preparatory or provisional documents." However, the Constitutional Court determined that the unenforceability of Resolution 2090 would only become effective one year as from the date of notification of its Judgment. The Constitutional Court further directed MinAmbiente to issue a new resolution delimiting the Páramo in the Jurisdictions of Santurbán - Berlín, which administrative decision was to be issued as a result of a prior, participative, effective and deliberative proceeding, within one year following the notification of the Judgment.
190.
On 17 November 2017, the Attorney General requested the United Nations Educational, Scientific and Cultural Organization ("UNESCO") to include Colombian Páramo Ecosystems as a World Heritage Site.230 On 12 February 2018, during a Video Tweet,231 the Attorney General confirmed that the Office was "currently working so the request is accepted." The Attorney General also stated the following:

"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.'"

191.
On 15 March 2018, the ANM again declared the Project as a PINE.232
192.
On 16 April 2018, the ANM confirmed its decision to reject Eco Oro's suspension request.233
193.
On 21 June 2018, Eco Oro informed ANM that it found itself prevented from fulfilling its obligation to submit a PTO before the end of the time period established by Articles 84 and 281 of the 2001 Mining Code (i.e., 21 June 2018), due to increased legal uncertainty regarding Eco Oro's right to carry out mining activities in the area of Concession 3452 and the absence of information about the new boundaries of the Santurbán Páramo that were yet to be issued by MinAmbiente in compliance with Judgment T-361/17.234
194.
On 30 August 2018, MinAmbiente applied to the Santander Administrative Tribunal for an extension of time to comply with Judgement T-361, stating: "[...] the remaining period of approximately 2 months is insufficient to comply with that ordered, and it is therefore necessary to extend this term by an additional 8 months, which this Ministry considers suitable for the situation at hand and which will allow all phases of the participation process to be satisfied, guaranteeing an effective exercise of fundamental rights."235 This request was granted on 9 October 2018 by the Santander Administrative Tribunal which clarified that "the new delimitation of the Santurbán-Berlín páramo which should be adopted by the Ministry of Environment may not be issued on a date later than eight months after the end of the term of one year set out in article 5 of the resolving part of Judgment T- 361/2017."236 That meant that the new delimitation should be issued by no later than 15 July 2019.
195.
On 27 July 2018, Law No. 1930 fixed páramos as strategic ecosystems and provided for its integral management.237 The development of mining exploration and exploitation activities is prohibited under Article 5 of this Law as follows:

"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. "

196.
On 30 August 2018, ANM granted Eco Oro a time extension until 30 November 2018 to comply with its duty to submit the PTO.238
197.
On 23 November 2018, Eco Oro requested that the current deadline be extended until 15 October 2019 (3 months after the expiration of the deadline set in Judgment T-361/17 for the new boundaries of the Santurbán Páramo to be issued239). On 24 December 2018, ANM rejected Eco Oro's request, asserting that there was no valid basis for extending the deadline for submission of the PTO.240 On 14 February 2019, ANM required Eco Oro, at risk of being fined, to submit the PTO within 30 days.241
198.
On 9 November 2018, the Attorney General's Office and the Ombudsman's Office prepared its third compliance report with respect to the actions taken by MinAmbiente pursuant to Judgement T-361 noting, inter alia, that MinAmbiente had "[...] made no substantial progress in terms of compliance with the orders of the Honourable Constitutional Court."242
199.
On 15 March 2019, the Attorney General's Office and the Ombudsman's Office prepared its fourth compliance report noting "[...] Finally, the Public Ministry observes with concern the short time remaining to fulfil the pending phases of the schedule effectively, given that they are the most significant in accordance with the in the [sic] findings of law considered in granting protection under the constitutional claim [tutela] petition, namely: to guarantee full citizen participation rights.243
200.
On 20 March 2019, the Santander Administrative Tribunal opened contempt proceedings against the Minister of Environment, Ricardo Lorenzo, on the ground that the delimitation process was not being progressed, in violation of the constitutional mandate ordered in Judgement T-361.244
201.
On 29 March 2019, after a presence of approximately 25 years in Colombia and a stated investment of over USD 250 million to develop the Angostura silver/gold deposit into one of the most substantial prospects in Colombia,245 Eco Oro, "as a final act of mitigation,"246 filed the renunciation of Concession 3452 pursuant to Article 108 of the 2001 Mining Code. 247
202.
In an article dated 23 April 2019, reference was made to a consultation with the Vetas communities which took place the previous day and at which the then Minister of Environment, Ricardo Lorenzo, was present along with "[...] more than a thousand people [...]", during which the Minister confirmed consultations had already been held in 25 municipalities, with nearly 300 proposals being submitted and further confirmed that "[...] there is no intention of removing communities from their territories. On the contrary, [...] the goal is to work with them, as part of a democratic participation process that is meant to adequately delimit this ecosystem which is of strategic importance for the country." The article further summarised the views of the Mayor of Vetas, who explained that the inhabitants of the municipality were seeking a guaranteed right to work, to continue mining and low-impact agricultural and livestock activities.248
203.
On 29 July 2019, ANM visited the site of Concession 3452.249
204.
In November 2019, MinAmbiente issued a proposal for the new delimitation of the Santurbán Páramo.250 The new delimitation proposal was not significantly different from the one adopted in Resolution 2090.251 The Santurbán Páramo has not definitively been delimited to this date.252

E. Witnesses

205.
During the course of these proceedings, the Tribunal received testimony from the following individuals having knowledge of the events giving rise to the Parties' dispute:

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

206.
The Tribunal has also received testimony from the following experts:

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

F. Costs Incurred by Eco Oro

207.
Eco Oro alleges having spent more than USD 250 million in advancing the Angostura Project.267
208.
According to Compass Lexecon, "Eco Oro spent approximately USD 258 million from 1997 to 2018 based on audited financial statements for Greystar and Eco Oro. [...] Exploration and evaluation costs totaled USD 198 million, of which USD 51 million are related to drilling, USD 56 million to exploration and technical studies, and USD 35 million to administrative purposes. General and administrative expenses totaled USD 58 million, of which USD 26 million went to audit, accounting and legal expenses and USD 11 million for salaries and benefits."268
209.
Charles River Associates (CRA), in turn, proposed corrected calculations of the historical costs incurred by Eco Oro with respect with the Project, submitting that the "revised estimate for the relevant time period is approximately $40 million."269

V. APPLICABLE LAW

210.
Article 832(1) of the FTA sets out the law applicable to this arbitration:

"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

211.
The applicable law for the interpretation of this Treaty is public international law. The Tribunal agrees with the Parties that the relevant rule on the interpretation of treaties is that embodied in Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969 (the "VCLT").271 The supplementary means of interpretation of treaties is set out in Article 32 of the VCLT. Articles 31 and 32 provide as follows:

"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."

212.
As mentioned above, Article 832(1) of the FTA provides that "[a]n 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." It shall be noted that, on 24 October 2017, the Commission issued Decision No. 6 ("Commission's Decision"),272 providing, inter alia, as follows:

"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.

CLOSING PROVISION

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. "

213.
It shall be noted, nonetheless, that the Claimant challenges the applicability of the Commission's Decision in the present case, as it was rendered almost a year after Eco Oro commenced this arbitration against Colombia. According to the Claimant, that would retroactively modify Article 805 of the Treaty, in violation of Article 28 of the VCLT.273 The Respondent, in turn, submits that the Claimant's argument is without merit, as the Commission's Decision "merely confirms the meaning of the FTA as it already existed. It does not seek to modify the text in accordance with the existing international law jurisprudence."274
214.
As a result of the Tribunal's application of public international law, the results it reaches in the interpretation and application of the FTA may differ from the results that would be reached through the application of municipal law in the courts of Colombia.

VI. PRELIMINARY MATTERS / JURISDICTION

215.
The Tribunal's jurisdiction has been invoked by the Claimant pursuant to Chapter Eight of the FTA.275 The Respondent submits that the Claimant bears the burden of establishing that its claims fall within the scope of the Tribunal's jurisdiction and are admissible and raises a series of objections to the Tribunal's consideration of the merits of the dispute.276 According to the Respondent, the Tribunal lacks jurisdiction to decide the present dispute277 on the grounds that:

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.

216.
The Claimant rejects each of these objections and submits that the Tribunal has jurisdiction to -and should- proceed to render a decision on its claims.278

A. Whether Colombia has Validly Denied the Benefits of Chapter Eight of the FTA to Eco Oro in Accordance with Article 814(2) of the FTA

217.
Article 814(2) provides as follows:

"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."

(1) The Parties' Positions

(a) The Respondent's Position

218.
The Respondent submits that Article 814(2) permits State parties to deny the advantages of the Treaty, including access to international arbitration, to companies which are owned or controlled by nationals of third States and have no substantial business in their State of incorporation. This provision is similar to the counterpart provisions in NAFTA, CAFTA and certain BITs and serves to safeguard against "free-rider" investors.279
219.
According to the Respondent, it validly exercised its right to deny Eco Oro the benefits of the FTA by letter dated 15 December 2016,280 on the grounds that Eco Oro (i) was owned or controlled by nationals of non-Parties (i.e., non-Canadians) and (ii) had no substantial business activities in the territory of Canada.281

(i) Nationals of Non-Parties Owned or Controlled Eco Oro at the time Eco Oro Sought to Invoke the Protections of the FTA

220.
As at the date of its Request for Arbitration (i.e., 8 December 2016), Eco Oro had not satisfied the conditions stipulated in Article 814(2), so far as its ultimate ownership and control were concerned. 282
221.
Eco Oro's incorporation in Canada is irrelevant: Colombia needs only to show that Eco Oro is either owned or controlled by investors of a non-Party. Indeed, Eco Oro does not even meet its own "chosen" definition that "ownership" and "control" exist if "a non-Party owns more than 50% of its shares, or exercises de facto control over the company through the operation and the selection of members of its board of directors or any other managing body ."283
222.
Turning first to ownership, Eco Oro's public filings confirm that, at the relevant time, Delaware corporations Amber, Paulson and Trexs, together with Bermudan corporation Harrington, owned 49.61% of Eco Oro's shares as of December 2016.284 There is no requirement, either in the FTA or by reason of any authorities, that the ownership or control must be by a single non-Canadian entity or that if more than one entity, they must be shown to be acting in concert. Colombia relies on a plain reading of the Treaty: Eco Oro has not denied that a majority of Eco Oro's beneficial owners were non-Canadian at the relevant time and, as 49.61% of its shareholding was owned by Delaware corporations (Amber, Paulson and Trexs) and Bermudan company (Harrington), "the obvious inference is that a majority of Eco Oro's shareholders were non-Canadian ."285
223.
Turning next to the question of control, the Investment Agreement entered into between Eco Oro and certain parties defined in the Investment Agreement as Participating Shareholders (including Trexs, Amber and Paulson and Ms. Stylianides, Eco Oro's Board's Executive Chair),286 is "unorthodox and objectionable as a matter policy and principle."287 It gave control over Eco Oro to Trexs, Amber and Paulson, all being non-Canadian entities at this time. The Investment Agreement was rendered necessary because of Eco Oro's "financial position at the time, and its decision to abandon bona fide mining operations and instead focus on obtaining funding to bring this arbitration."288 In particular, Trexs was granted the following rights which gave it "significant rights of control over Eco Oro, including the right to appoint a board member" :289

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

224.
In addition, each Participating Shareholder entered into a separate investment agreement pursuant to which they were issued CVRs granting them 19.3% of the proceeds of the arbitration such that the Participating Shareholders were together granted 70.93% of the proceeds of the arbitration. This gave them the right to control both Eco Oro and its claim. Whilst the terms of the CVRs are not public, an Eco Oro shareholder circular stated that:

"[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

225.
Chapter 418, Article 1(1) of the British Columbia Securities Act defines a "control person" as follows:292

"[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[…]"

226.
Given the Participating Shareholders held (i) shareholdings in excess of the 20% threshold; and (ii) rights under their respective investment agreements, Eco Oro was controlled by the Participating Shareholders.

(ii) Eco Oro Had No Substantial Business Activities in Canada

227.
At all material times, Eco Oro's sole business focus has been the Angostura Project as evidenced, for example, by its Consolidated Financial Statements for the year ended 31 December 2016,293 which state that its "focus" is on the Project's development and Eco Oro's Memorial, which provides that Eco Oro has been "singularly focused" on the Angostura Project.294 Eco Oro also described itself to the MinMinas as "genuinely Colombian."295 The activities stated by Eco Oro to have been undertaken in Canada do not amount to "substantial business activities" whether or not taken individually or cumulatively: they are corporate, financing and administrative activities and not business activities and as such are "ancillary, secondary activities that do not form a part of Eco Oro's business."296 To be substantial requires "at a minimum" activities "beyond the normal activities or functions required merely by the fact of its corporate existence [...]."297 Indeed, to have had substantial business activities in Canada, Eco Oro would have needed to have acquired mining titles in Canada298 and can only rely on its own activities and not on the activities of third parties in Canada.299

(iii) Colombia Has Validly Denied the Benefits of Chapter Eight of the FTA to Eco Oro in Accordance with Article 814(2)

228.
Colombia validly exercised its right to deny the benefits of Chapter Eight to Eco Oro by its communication of 15 December 2016,300 which was issued one week after Colombia received Eco Oro's Request for Arbitration. That was the time at which it should "analyse whether the objective conditions for the denial are met and, if so, decide on whether to exercise its right to deny the benefits."301 A 'retroactive' denial would not be contrary to the Treaty's objective and purpose. Eco Oro knew that it had no substantial business activities in Canada and that it was owned or controlled by non-Canadians and so would have been aware that Colombia could exercise this right at the time it made its investment. The Treaty protections are thus conditional upon Colombia's right to deny Eco Oro such benefits.302
229.
The FTA wording is clear and unambiguous: the ordinary meaning of the denial of benefits provision contains no express requirement that a denial of benefits may only be invoked prospectively and there is no compelling basis on which such a requirement should be implied. Indeed, there is no limitation in the FTA as to the time at which Colombia may exercise its right to deny the benefits of Chapter Eight, the only applicable time limit being that imposed by ICSID Arbitration Rule 41 requiring a respondent to submit its jurisdictional objections no later than the date fixed for the filing of the Counter-Memorial (which time limit Colombia complied with).
230.
Further, the FTA is based on the Canadian model foreign investment promotion and protection agreement which includes a denial of benefits clause which reproduces the equivalent provision in NAFTA Article 1113(2), subjecting the State's exercise of denial of benefits to "prior notification and consultation" As this specific prior notification and consultation language is omitted from the FTA, Canada and Colombia must have expressly decided not to subject the exercise of denial of benefits to "prior notification and consultation" Eco Oro's response that the parties to the FTA thought these words were unnecessary or implied is unsupported by evidence, inherently improbable and based entirely on conjecture. The logical inference is that the parties to the FTA intended to omit the requirement.
231.
In support of its submissions, in addition to the Ulysseas and Guaracachi decisions, Colombia also cites the decisions in Pac Rim303 and Empresa Eléctrica del Ecuador.304
232.
The object and purpose of a treaty cannot give rise to limitations of the rights of a State through the imposition of new conditions for the exercise of its rights that are not provided for under such treaty.305 Canada and Colombia did not include any requirement as to the time by when such a denial should be invoked, hence no such requirement falls to be imposed.306
233.
Finally, the reason the relevant time to assess compliance with the nationality requirements of ownership and control is at the time an investor files its Request for Arbitration is precisely because it is only at this time that a State can consider and exercise its denial of benefit rights; it would be unworkable for it to be expected to investigate the nationality of an investor's ownership or control each time an investment is made.307

(b) The Claimant's Position

(i) Colombia Cannot Deny Eco Oro the Benefits of the Treaty

234.
Colombia cannot retrospectively deny Eco Oro the benefits of the FTA; in any event, Colombia has failed to show either that Eco Oro is owned or controlled by non-Party investors or that it has no substantial business activities in Canada.
235.
The purpose of a denial of benefits provision is to give a State the opportunity to counteract nationality planning and protect itself from abuse by investors whose investment the State did not want to protect (i.e., free-riding or treaty shopping via corporate structuring). The present case is precisely the converse: Eco Oro is a Canadian company that has made investments directly into Colombia for over two decades, its Canadian nationality having been acknowledged by Colombia during the totality of this time and its investments in Colombia having been praised by Colombia.308 It is of note that Colombia has not even been able to identify the non-Party State whose nationals it claims own or control Eco Oro.

(ii) Colombia Cannot Retroactively Deny Eco Oro the Benefits of the Treaty

236.
Article 814(2) must be interpreted in accordance with its ordinary meaning in light of the object and purpose of the FTA. The preamble of the FTA states that the object and purpose of the FTA is, inter alia, to "ensure a predictable commercial framework for business planning and investment." Permitting a retroactive denial of the Treaty's benefits would achieve precisely the opposite - a putative investor would have no certainty as to whether its investment would or would not be protected.
237.
Article 25(1) of the ICSID Convention specifies that the date on which the Tribunal's jurisdiction is to be evaluated is the date on which the Request for Arbitration is filed. Pursuant to the ICSID Convention, "[w]hen the parties have given their consent, no party may withdraw its consent unilaterally." Colombia's consent is provided for in the FTA and Eco Oro's consent was given when it filed its Request for Arbitration. At that point, consent to arbitration was perfected and from that date, pursuant to Article 25(1) of the ICSID Convention, Colombia could not thereafter deny the benefits of the Treaty to Eco Oro insofar as they apply to the present dispute. This interpretation is supported by Plama309 and the vast majority of decisions that have been determined subsequently. The fact that most of these cases have been decided under the Energy Charter Treaty (the "ECT") is irrelevant -the underlying principle and logic applied by the respective tribunals apply with equal force here. Just as Article 17(1) of the ECT (i) requires the relevant State to give notice of the denial to the investor (it sets forth a reservation of rights mechanism which to be effective must be exercised), (ii) is phrased in the present tense310 and (iii) has, as its object and purpose, the need for certainty and predictability, the same applies to Article 814(2). The use of the word "may" in Article 814(2) indicates that the State has to take a decision which must be communicated to the investor. Once it is accepted that notice must be given, such notice can only have prospective effect.311
238.
The words excluded from the Canadian model foreign investment promotion and protection agreement (the reference to "prior notification and consultation") have no linkage with the retrospective denial of benefits. In any event, the mere absence of words is insufficient, without evidence, to draw any conclusion as to the joint intention of the parties to the FTA. An absence of requirement for prior notification for a denial of benefits is at odds with the object and purpose of the FTA; in any event, Colombia did give notice to Eco Oro and must therefore accept that provision of notice was a prerequisite to denying the benefits of Chapter Eight of the FTA.
239.
Finally, whilst the relevant time for assessing the substantive requirements of Article 25(1) of the ICSID Convention was the date of filing of the Request for Arbitration, that does not mean Colombia did not need to raise its jurisdictional objections based on the denial of benefits provisions until it filed its Counter-Memorial. Referring back to the need for certainty, if Colombia could deny the benefits of the FTA to an otherwise putative qualifying investor without ever telling it so, such an investor would not be operating within a "predictable" framework and long-term business planning and investment would be frustrated.

(iii) The Conditions For Invoking the Treaty's Denial of Benefits Are Not Met

240.
The correct test as to whether a non-Party owns or control a majority of the voting stock is not 50% +1 but even if it were, Colombia has failed to meet it. To have the right to deny the benefits of the FTA to Eco Oro, Colombia must show either that the alleged non-Party or Parties have outright ownership of 100% of Eco Oro's equity or, alternatively, that such investors are able to exercise de facto control by their ownership of more than 50% of the voting stock.
241.
With respect to the test of "ownership", the ordinary meaning of the word "own" implies outright ownership. In breach of the VCLT, Colombia imports into the text the concept of majority ownership. Eco Oro is owned by the holders of its common shares which were at the relevant time (and still are) traded on the stock exchange. Eco Oro is not required by law to maintain any record of the nationality of its shareholders. The same applies to its beneficial owners. Eco Oro is obliged312 to maintain a central securities register recording (i) the name and last known address of each registered shareholder and (ii) the number of shares held. However, this requirement does not apply to the beneficial owners of its shares. Pursuant to section 87 of the Securities Act of British Columbia, shareholders that own or control 10% or more of its issued shares must file a report which is publicly available disclosing the volume of shares owned or controlled.
242.
Even if ownership included majority ownership, the three documents referenced by Colombia313 do not evidence Colombia's assertion that, according to its public filings, the share ownership percentage of three of its shareholders amounted to 49.61% as of December 2016. No inference should be drawn as to the nationality of its shareholding from the non-production of information to which Eco Oro has no access. Were Colombia's construction to be correct, if over 50% of Eco Oro's stock were owned by non-Canadian investors, even if each such investor only owned a single share, on the basis that collectively they would own over 50%, Eco Oro would be held to be owned or controlled by investors of a non-Party. This is nonsensical. Investors cannot make decisions for Eco Oro; that is a matter that is determined by its governance structure. In any event, all non-Party investors must be from the same third country, as is clear from the text that specifies the investors must be from "a non-Party" (the Tribunal's emphasis following Eco Oro's argument). As its shares are listed on a liquid stock exchange, Eco Oro's shareholders frequently change and it would generate significant uncertainty if the right to be assured of treaty protection depended on the dynamics of the stock market on any particular day.
243.
With respect to "control", at the relevant date, no shareholder owned (whether as the registered owner or beneficially) 20% or more of Eco Oro's outstanding shares. Therefore, no one owned the 50% +1 threshold required to constitute control for the purposes of Article 814(2). Colombia has adduced no evidence in support of its assertion that the Participating Shareholders were acting in concert.
244.
Colombia's references to Canadian domestic law are irrelevant: the FTA must be interpreted according the provision its ordinary meaning. However, even if Canadian domestic legislation were relevant, Colombia has referred to the wrong Canadian statute - the Securities Act of British Columbia (which does not address issues of control) instead of the Business Corporations Act of British Columbia, which provides as follows:

"[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

245.
The question of "control" is fundamentally a question of corporate law and the correct statute is the Business Corporations Act of British Columbia.315 No non-Party exercised de facto control: at the relevant time the Board of Directors comprised eight members and no shareholder had sufficient shares to be able to control the appointment of directors to the Board. Pursuant to its Articles of Association,316 Eco Oro is governed by two bodies: (i) the shareholders, who take decisions on either a two-thirds supermajority basis or a simple majority basis depending on the nature of the issue to be decided upon; and (ii) the board of directors, who are appointed by the shareholders and who take decisions on those issues delegated to it on a majority basis. Pursuant to these provisions, a shareholder would need to have appointed at least four of the six directors to be able to "control" Eco Oro and that could only be achieved by a shareholder holding in excess of 50% of the voting stock. On the relevant date (as detailed above) no shareholder held that percentage of voting stock.
246.
The Investment Agreement did not give Trexs control over Eco Oro: whilst it required Eco Oro to take all commercially reasonable steps to appoint a Trexs nominee to the Board or, absent such appointment, to permit a Trexs nominee to attend board meetings as an observer, this type of provision is commonly required by capital providers making equivalent investments. Thus, whilst Trexs had a contractual right to have a candidate considered for appointment to the board (and at the relevant time had a nominee appointed to the board) such appointment was not guaranteed. In any event, the ability to appoint one member of a six-person board does not equate to control.
247.
With respect to the provisions of the Investment Agreement, Trexs' veto rights are standard negative covenants in corporate finance and, rather than an usurpation of control by Trexs, they are an exercise of the powers granted to Eco Oro's board of directors under the Articles of Association. Again, the consultation rights and rights to receive information are not an assertion of control but a standard feature of financing agreements. Indeed, it is noteworthy that, having received the Trexs CVR, Colombia made no further submissions as to its giving of control, no doubt on the basis that the actual text was not supportive of Colombia's initial submissions.
248.
Eco Oro has substantial business activities in Canada. Whilst the words "substantial business activities" are not defined in the FTA, it is typically interpreted by tribunals to require the investor-claimant to be more than a "shell company" with business activities that are "nominal, passive, limited and insubstantial"317 and that "substantial" refers to the substance of the activity rather than its form.318 The purpose of the denial of benefits provision is to ensure shell companies are not established and used to manufacture jurisdiction. Eco Oro has maintained its place of business in Canada since 1987 and, in that time, has bought and contracted for many services, including: mineral sample storage, laboratory testing, assay analysis, metallurgical test and resource estimation. In addition, it conducts corporate and commercial activities in Canada such as its finance and investor relations, it trades its shares on a Canadian stock exchange, complies with Canadian security filing obligations, raised equity funding, maintains active Canadian dollar denominated bank accounts with the Bank of Montreal in Canada and holds its annual general meetings in Canada. The fact its primary (or only) investment is outside Canada is irrelevant: it has continuously had substantial business activities in Canada and has also carried out exploration projects in Spain, Portugal, Brazil, Indonesia, the USA as well as Canada.319

(2) The Tribunal's Analysis

249.
As an initial point, the Tribunal notes that Colombia does not assert that Eco Oro is a "free rider" or that it has made any attempt to treaty shop. It is not disputed that Eco Oro has maintained business functions in Canada since 1987 (the issue being whether or not those functions were substantial) and Colombia has from time to time acknowledged both Eco Oro's Canadian nationality and referred, in positive terms, to the existence and importance of Eco Oro as a Canadian investor and to the importance of the Angostura Project itself.
250.
The Tribunal first turns to Colombia's contention that Eco Oro is owned or controlled by investors of a non-Party. The FTA does not refer to a majority or partial ownership, it simply specifies ownership and it contains no definition. The ordinary meaning of "own", when not circumscribed by adjectives such as "partial" "shared" or "majority" connotes full or complete ownership. The Tribunal therefore construes "own", as used in the FTA, to require 100% ownership. An investor with less than 100% ownership falls to be considered in the second limb, namely whether they have the ability to exert control. Colombia has not asserted that 100% of Eco Oro's shares were, at the relevant date (8 December 2016) owned by a non-Party and the Tribunal therefore finds that Colombia has not shown that Eco Oro was owned by a non-Party.
251.
Turning to the question of "control", Colombia contends that the Tribunal should infer that 50% plus one shares were owned by investors of a non-Party given 49.61% of its shareholding was owned just by three Delaware corporations and one Bermudan company. Colombia says it is irrelevant whether or not such non-Party shareholders were acting in concert as there is no such requirement in the FTA: Eco Oro was controlled by investors of a non-Party.
252.
It is not accepted by Eco Oro that 49.61% was owned by investors from a non-Party but, in any event, turning to the express wording of the FTA, the requirement is for 'control'. This must mean, on an ordinary reading of the word, actual not putative control. It is insufficient that if all the non-Canadian investors were to act in concert, they would be able to exercise control. The Tribunal must make its decision on the basis of the facts - was Eco Oro controlled by investors of a non-Party? Whilst it may be that Amber, Trexs, Paulson and Harrington were acting in concert, even if they did collectively own 49.61%, this could not result in control. Colombia has adduced no evidence that any of the other non-Canadian shareholders were acting in concert, nor that there was any communication of any nature between them. The Tribunal cannot plausibly proceed on the basis that it should infer control in these circumstances. This is particularly so given the nature of Eco Oro's governance structure, which both requires shareholders to take decisions either by a simple majority or a two-thirds majority and provides that a shareholder may only appoint a Director to Eco Oro's Board if such shareholder holds in excess of 50% of the voting stock (Colombia has not adduced evidence to show any shareholder held that percentage on the relevant date).
253.
There is further no provision in the Investment Agreement which evidences that Trexs was able to, let alone did in fact, control Eco Oro (and the Tribunal notes that, having received the CVRs, Colombia did not pursue its submissions that they gave the Participating Shareholders control over Eco Oro).
254.
Having determined that Eco Oro was neither owned nor controlled by investors of a non-party on the relevant date, Colombia was not entitled to deny the benefits of Chapter Eight to Eco Oro. It is therefore unnecessary to consider Colombia's other submissions, but the Tribunal notes that those business activities described by Eco Oro (and which activities Colombia did not dispute took place) were sufficient to comprise substantial business activities in Canada. The Tribunal does not see there is any requirement for Eco Oro to have acquired a mining licence in Canada to meet this limb. It is further unnecessary for the Tribunal to consider whether, to be effective, any notice should have been served on Eco Oro notifying it of Colombia's exercise of its right to deny Eco Oro the benefits under the FTA nor by when such notice, if required, should have been exercised.

B. Whether Eco Oro is a Protected Investor under the FTA

255.
Article 838 of the Treaty provides as follows:

"[...] 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

(1) The Parties' Positions

(a) The Respondent's Position

256.
The Tribunal lacks jurisdiction ratione personae because the true beneficiary of the claim is a Delaware-incorporated US company - Trexs - to whom Eco Oro assigned the benefit of its claim in July 20 1 6.321

(i) Nationality under the FTA falls to be determined by reference to the true beneficiary of the claim

257.
It is a well-established principle of international law that only a real party in interest has standing to sue,322 such that the nationality of a claimant falls to be determined by reference to the beneficiary party and not the nominal claimant.323 Indeed, this principle is reinforced by the provisions of Article 819 of the FTA which gives standing to a claimant to submit, "on its own behalf," a claim that it "has incurred loss or damage" arising from an FTA breach. Therefore, it is not sufficient that Eco Oro is a Canadian incorporated company if it does not stand to benefit from the claim.
258.
This principle is not overridden by the lex specialis regime created by certain of the FTA's definitions. There is insufficient specificity in the FTA and Article 838 does not provide that complying with the definitions of "investor" and "investment" is a sufficient rather than just a necessary condition to establish a claimant's standing to bring a claim. The FTA is subject to and consistent with principles of international law on standing and there is no clearly evinced intention that the contracting States intended to derogate from this.
259.
Whilst no case has yet considered the issue, commentators observe that where, prior to the commencement of an arbitration, a funding arrangement is entered into which gives rise to a de jure or de facto assignment of the benefits of a claim to an entity that does not satisfy the nationality requirements, the tribunal will lack jurisdiction ratione personae as the nationality requirement should be considered by reference to the funder's nationality.324 The fact there are no prior cases applying this principle to this fact pattern is immaterial as third-party funding of this nature is of recent origin.

(ii) The FTA's Nationality Requirement was to be satisfied at the date of the Request for Arbitration

260.
The FTA's nationality requirement falls to be determined at the date of the submission of the dispute to arbitration as that is when the agreement to arbitrate is formed both under the FTA and international law. This was 8 December 2016.

a. The Nationality Requirement was not satisfied at the date of the Request for Arbitration because Eco Oro had assigned its claim to Trexs

261.
As of 8 December 2016, Eco Oro had already assigned the benefit of its claim to Trexs pursuant to the Investment Agreement which was "in substance and effect an assignment of the benefit of the claim by which Trexs became its main beneficiary and the party in control of it."325
262.
Trexs became the main beneficiary: not only was it granted 51% of the proceeds of the claim (whereas Eco Oro only stood to benefit by 22.7% of the proceeds), it was also granted certain rights enabling it to control the process of the claim. These include the ability to control all material aspects of the claim, including the right to veto any settlement or termination of the arbitration and the rights to appoint a member to the board of directors, to be provided with relevant information concerning the claim and to be consulted in relation to filings and certain steps in the arbitration.
263.
In addition, the Investment Agreement itself recognised, by implication, that it was assigning the claim to Trexs by virtue of one of the representations and warranties which provided that

Eco Oro had not "other than pursuant to [the Investment Agreement] assigned all or any portion of [its claims under the FTA]."326

264.
Therefore, as at the date the arbitration was commenced, the actual beneficiary of the claim was Trexs, a Delaware corporation. Accordingly, the FTA's nationality requirement is not satisfied.

(b) The Claimant's Position

(i) Eco Oro is an "investor " with Canadian nationality as defined in Article 838 of the Treaty

265.
Eco Oro complies with the requirements of the FTA: as accepted by Colombia,327 it was incorporated in accordance with the applicable laws of Canada and it is a qualifying investor for protection under the FTA in accordance with the definitions of "investor of a Party" and "enterprise."328 That in itself is sufficient as the FTA only requires that an enterprise (Eco Oro) be "constituted or organized" under the laws of Canada (which Eco Oro is) and permits the submission of a claim to arbitration by any "investor" of one of the FTA's contracting parties. Colombia has failed to identify any other provision requiring the application of additional criteria. The Treaty requirements are clear and precise and no additional requirements need to be implied; giving effect to the FTA as lex specialis is consistent with rules of international law.
266.
Colombia's argument to the effect that there is an established rule of international law that the beneficiary of a claim is the proper party to the claim such that the nationality of the claimant falls to be decided by reference to the nationality of such beneficiary is both illogical and misplaced: illogical because in the case of publicly traded entities there will rarely be a single beneficiary of a claim as such entity will have several economic stakeholders and the nationality of such stakeholders may change several times in any one day; and misplaced because the nationality provisions in the FTA are lex specialis. Tribunals apply nationality criteria strictly; indeed, one of the commentators cited by Colombia notes that "the nationality of the claimant would be unaffected by the fact that the proceeds of the award may go directly to a third party."329 Pursuant to international law, a corporation's nationality is established by its place of incorporation330 and not by the ultimate destination of the proceeds of any claim.
267.
Colombia misstates and misapplies the principle and legal authorities upon which it seeks to rely as each relates to the nationality of the beneficial owner of the underlying property the subject of the dispute (i.e., the investment that gave rise to the dispute) and not the beneficiary of the claim itself. It has not been disputed that Eco Oro has full legal title to Concession 3452.
268.
Accordingly, Eco Oro is an investor pursuant to the provisions of the FTA and thus has standing to bring this arbitration.

(ii) Eco Oro has not assigned its claims to Trexs

269.
Whilst irrelevant, Eco Oro has not assigned its claim to Trexs, it has merely granted an economic interest in its proceeds which has no effect on its own nationality. Trexs is just one of several equity and debt holders in Eco Oro and, as with other investors, it has provided capital to help both Eco Oro's business in Colombia as well as to finance the arbitral proceedings. It is not a third-party funder, but even if it were, recent cases concerning third-party funding have concluded that in the absence of express wording in the relevant treaty to the contrary, tribunals should opt for "informed indifference" towards a funder's involvement with respect to the admissibility of the claim.331 In the present case, the FTA requires nothing more of Eco Oro than that it is an "entity constituted under the laws of Canada" which it is. The FTA definitions are clear: there is therefore no justification or necessity for the Tribunal to import any additional requirements into it.
270.
It would be impractical and would "eviscerate the distinct legal personality that comes with the incorporation of a business"332 if it were necessary to analyse how each stakeholder stands to benefit from the proceeds of an arbitration in order to determine the nationality of a claimant-enterprise. It would also be contrary to the object and purpose of the FTA which seeks to ensure a predictable commercial framework for business planning and investment if its qualification as an investor were to depend on the relative interests and priorities of its stakeholders.
271.
There is a legal distinction between an assignment of a claim (after which the claim can only be brought by the assignee) and an investment into a publicly traded entity. The Investment Agreement achieves what it says it is, namely an investment; assignment is not its practical effect and Eco Oro is not a "façade." The question of "control" is not relevant to the question of Eco Oro's status as an investor and Eco Oro has full control over the arbitration; no steps can be taken without its consent. Trexs holds less than 10% of Eco Oro's shares and the majority of Eco Oro's directors have no links with Trexs such that Trexs has no command over Eco Oro's decision-making process, including with respect to the arbitration. In any event, the directors all owe fiduciary duties to all the shareholders. 333 Finally, certain words were omitted from the Investment Agreement provision quoted by Colombia: it should read "other than pursuant to the Investment, [Eco Oro] has not disposed of, transferred, encumbered or assigned all or any portion of such Claim Proceedings (or any interest therein) or any proceeds thereof, whether by way of security or otherwise (including any set off or agreement to set off any amounts relating to the Claim Proceedings)." (The words underlined are the words omitted by Colombia). When read in full, it is clear the purpose and meaning of the provision is to confirm that Eco Oro has not and would not convey the claim proceeds in any way. It does not infer that the Investment Agreement was in reality an assignment. Indeed, Colombia cannot complain that Eco Oro was obliged to seek funding as a direct result of Colombia's own unlawful conduct. 334
272.
The CVR which was appended as Schedule A to the Investment Agreement provides that it "does not derogate from or in any way limit or restrict [Eco Oro's] ownership of the Claim Proceeding Rights and [Eco Oro's] ability to prosecute the Claim Proceedings or otherwise result in the Holder owning or controlling the Claim Proceedings."335

(2) The Tribunal's Analysis

273.
It is not disputed that Eco Oro is incorporated in accordance with the applicable laws of Canada and is a Canadian enterprise. Accordingly, Eco Oro satisfies the express requirements set out in Article 838 of the FTA. The test in Article 838 is clear and specific: the Tribunal does not accept Colombia's contention that there is insufficient specificity in the FTA. Colombia does not identify any provisions in the FTA requiring investigation into Eco Oro's beneficial ownership and the Tribunal does not accept Colombia's further contention that as there is no provision in the FTA specifying that this is the only applicable test, the Tribunal must instead be guided by a principle of international law which requires consideration of the beneficial owner of the putative claimant. In the absence of such provisions, it is not apparent to the Tribunal why it should engage in an analysis of the beneficial owners of a listed company. The cases cited by Colombia do not relate to the beneficial owner of the claimant but to the beneficial ownership of the property the subject of the claim. Whilst this may not always be a distinction with any substance, in the present case, where there is no allegation (or evidence) that Eco Oro itself is not the 100% owner of the title to Concession 3452, the Tribunal is satisfied that Eco Oro is a protected investor for the purposes of Article 838 such that the Tribunal has jurisdiction ratione personae.

C. Whether Eco Oro has complied with the Conditions Precedent to Arbitration provided for in Article 821 of the FTA

274.
Article 821 of the Treaty ("Article 821") provides as follows:

"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

(1) The Parties' Positions

(a) The Respondent's Position

275.
The Parties have not perfected their consent to submit the dispute to arbitration as Eco Oro has failed to comply with four of the mandatory conditions precedent set forth in Article 821 and the Tribunal therefore lacks jurisdiction.

(i) Consent to Arbitration under the FTA is conditioned on compliance with the Conditions Precedent in Article 821

276.
These requirements are conditions precedent and not mere formalities: pursuant to Article 823(1) of the FTA, Eco Oro's failure to comply with any of these conditions precedent results in nullification of Colombia's consent to arbitrate.

(ii) Eco Oro has Failed to Comply with Four of the Conditions Precedent Listed in Article 821 of the FTA

a. Article 821(2)(c)(iii)

277.
The Notice of Intent did not state all the legal and factual bases for its claim, including each one of the measures at issue. The wording of the FTA is clear: it requires the Notice to contain, inter alia, "the legal and the factual basis for the claim, including the measures at issue." This requires the listing of all the measures at issue, without limitation, to ensure Colombia is properly apprised of the existence, scope and subject matter of the controversy. It is insufficient for Eco Oro only to describe the "basis" of the claim in its Notice of Intent.
278.
The cases cited by Eco Oro are irrelevant: none of the underlying Investment Treaties had equivalent provisions requiring either the listing of all measures or alternatively conditioned consent to arbitrate on compliance with such measures. Even if it were sufficient to describe the basis of the dispute without specifying the entirety of the measures at issue, Eco Oro's Notice of Intent is still not acceptable because Colombia could not have understood from the Notice of Intent that Eco Oro intended to bring claims with respect to measures that did not concern the Angostura Project or the delimitation of the Santurbán Páramo. Eco Oro is seeking to introduce "by the back door" claims not related to the original dispute. To the extent that claims were uncrystallized at the time the claim was submitted to arbitration, Eco Oro should have waited before filing its Request for Arbitration and it should have filed a new notice of intent to apprise Colombia of those new disputes which were not related to the Angostura Project or the process of delimiting the Santurbán Páramo. Accordingly, Eco Oro failed to comply with the condition precedent in Article 821(2)(c)(iii).
279.
Eco Oro's reliance upon Article 46 of the ICSID Convention ("Article 46") does not assist it - a tribunal's powers under Article 46 to hear incidental or additional claims apply only to a dispute falling within the scope of the consent of the parties and as Eco Oro has failed to comply with the conditions precedent contained in Article 821, there is no consent to submit the dispute to arbitration and thus Article 46 is of no avail.

b. Article 821(2)(b)

280.
Eco Oro failed to comply with the six-month cooling-off period. Eco Oro, in its Request for Arbitration, refers to Resolution VSC 829, Resolution 48, Resolution VSC 906, Judgement T-361, Order VSC 195 and Colombia's decision to have the Colombian páramo declared UNESCO World Heritage Sites as all being contrary to Colombia's obligations under the FTA. However, even on Eco Oro's case, each of these measures was adopted less than six months before Eco Oro submitted its claim to arbitration and they were mostly adopted after the submission of the claim to arbitration. In particular, Eco Oro argues that it was deprived of "vital rights under Concession 3452" by Resolution VSC 829, however that was only adopted in August 2016. Thus, less than six months had passed between the date of the measures giving rise to the claim and the date of submission of the claim to arbitration. Again, this is a mandatory requirement which cannot be dispensed with. Whilst Eco Oro relies upon the Crystallex case,337 Colombia notes that the relevant Canada-Venezuela BIT did not contain an equivalent provision making the notice period a condition precedent.338 Therefore, Eco Oro failed to comply with the condition precedent in Article 821(2)(b).

c. Article 821(3)

281.
Eco Oro failed to comply with the waiver requirements which are mandated to be in the form of Annex 821 and included in the submission of a claim to arbitration. This waiver must relate to measures that are alleged by Eco Oro to be in breach of the FTA and is submitted with the Notice of Intent. Eco Oro's waiver did not relate to all the measures alleged by Eco Oro in this arbitration to be in breach as some occurred after the waiver and Notice of Intent were submitted.339

d. Article 821(2)(e)(i)

282.
Eco Oro's Request for Arbitration was received by ICSID's Secretary General on 8 December 2016 and the mandatory cut-off date is therefore 8 September 2013 (the "cut-off date"), however Eco Oro had knowledge of all relevant alleged breaches and the resulting loss or damage before that date. The mining ban had been in force since Law 1382 came into effect on 9 February 2010 and Eco Oro has not had the right to mine in those areas of its Concession overlapping with the Santurbán Páramo since at least August 2012.
283.
Eco Oro's knowledge arises, inter alia, from the following which occurred before the cut-off date (the "pre cut-off Measures"):

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.

284.
Eco Oro sought to challenge these measures evidencing its awareness of them before the cut-off date.