State breached the FTA when failing to honour obligation to contribute to costs

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FTA’s exception for environmental measures does not bar compensation for conduct otherwise in breach

While Colombia’s conduct was not perfect, none of these issues rose to the level of an MST breach

Majority of the tribunal holds that it can and should rely on “case law” to elucidate scope of minimum standard of treatment

Colombia’s conduct does not pass “rare circumstances” test required to find an expropriation under the FTA

Claimant never acquired title to the mining concession, and state’s refusal to acknowledge assignment was not arbitrary

Mining concession was covered by transition regime, and rights of exploration and exploitation had been grandfathered

Impact of treaty’s environmental carve-out to be reviewed with the merits

Claimant’s core corporate functions were carried out in Canada, defeating state’s bid to deny benefits

Under the FTA, states can deny benefits to claimants even after claim has been lodged

Purpose of Notice of Intent is to appraise state of controversy and start cooling-off period

Dispute stems from cumulative string of actions, some of which took place after treaty entered into force

Claimant “made” an investment by expanding resources after having initially passively acquired title to the relevant assets

By entirely controlling local branch, claimant can invoke this branch’s only asset as its investment for the purpose of the treaty

Claimant never acquired title to the concession, which therefore does not qualify as a protected investment under the FTA – but potential investment remains relevant

Actions by Secretary-General are entitled to presumption of validity to enhance predictability of proceedings

Tribunal has jurisdiction to review Acting Secretary-General’s decision not to discontinue case, although that decision should in principle be respected

Rule 45 does not mandate automatic discontinuance of the proceedings

Background: Colombia bans high-altitude mining, and Constitutional Court later strikes down grandfathering regime as unconstitutional

State is ordered to bear arbitration costs and pay 75% of claimants’ legal costs

Pre-award and post-award interest added, at different rates

Tax gross-up rejected; no precedent and no clear evidence that award would be taxed

Tribunal sets 9.4% as hypothetical reasonable rate of return that European Commission would have determined, and awards compensation for plants achieving lower returns due to solar levy

Separate causation arguments dismissed

EU state aid rules play central role in tribunal’s damages analysis

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