Evidence Preservation Protocol obliges Colombia to record critical evidence

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Uncertainty as to the scope of Colombia’s mission requires establishment of a protocol to preserve and record archaeological finds by the state

Test for measures aimed at preserving evidence differs from general test for provisional measures

No ground to grant security for costs

Time-bar does not apply in circumstances where claimant had no reason to doubt existence of its rights

Treaty only covers acts or measures that followed its entry into force, but this does not bar claims relating to pre-existing dispute

Tribunal is unconvinced that assignment of rights and assets required state approval

Conduct of claimant and its predecessors evidences that they expected profit; “treasure searching” business is inherently risky

TPA’s definition of “investment” requires alleged investment to reflect a “commitment”, but no requirement of an active act of investing by claimant

Tribunal is empowered to resolve factual issues that won’t impact the merits of the case in expedited proceedings

Amicus curiae mechanism cannot be used by private third-party to settle scores

Spain does not address issues in dispute in the arbitration, thus its submission is unlikely to assist the tribunal

Spain seeks to intervene, arguing that it is the true owner of the galleon

Clone- Dispute is not limited to substantive provisions of Foreign Investment Law

No proof of bribery, as investors had reason to believe officials were acting legally

Tribunal interprets FIL in line with later move by Kyrgyzstan to reassure foreign investors

Jurisdiction not defeated by alleged illegality – but tribunal can rule on these allegations’ merits

State to bear 2/3 of costs and legal fees

No reduction of compensation for contributory fault

DCF and market capitalisation methods too speculative

Sunk costs approach needs to consider assets’ residual value

Dispute is not limited to substantive provisions of Foreign Investment Law

Indirect investments are covered by the FIL

Unexpected termination of the licences amounts to expropriation

Claimants try to ground jurisdiction in contractual “Standard Terms”

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