Granting party additional time at hearing to address evidence submitted by counter-party prevents infringement of the principle of equality of arms

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Party must be able to reply to evidence submitted by counter-party for principle of equality of arms not to be infringed

Objections regarding the relevance and materiality of an expert report relate to the merits of the evidence, not its admissibility

UNCITRAL tribunal has power to exclude evidence from the arbitral record

Arbitrator Sands challenges recourse to litigation financing

Costs are split

Tribunal agrees to clarify and correct its previous decision on liability on various points

Remediation costs would have been incurred in any event, meaning that they can’t be recovered as damages

While Colombia may be seen to be benefitting from its own breach, onus was on claimant to provide tribunal with sufficient elements to rule on quantum

Evidence is missing regarding claimant’s loss of opportunity, such that no damages can be awarded

Compensation cannot be sought for losses suffered because of conduct by respondent found to be lawful by tribunal majority

While parties and tribunal supported expedited procedure on quantum, Award was three years in the making

Background: Tribunal fractures on what conduct breached FTA, and seeks more input on quantum in context where exact losses are unclear

According to the dissenter, claimant lost opportunity to ask for environmental permits to carry out mining project

Dissenter finds that award’s costs decision is counter-intuitive given respondent’s success on the merits

Costs are split, resulting in costs order for respondent, who failed to advance costs

No need to review exception for environmental measures, given finding on MST

No expropriation absent vested mining rights, and absent the “rare circumstances” – such as breach of a commitment – required by the treaty

Failure to prevent artisanal, small-scale mining is no proof of discrimination

Striking balanced policy can be complex, and state cannot be faulted for adopting solution that is detrimental to the claimant, as long as it pursues a legitimate purpose

No breach of transparency in back and forth on delimitation of environmentally-protected area

Customary international law does not protect against breach of legitimate expectations

Joint interpretation of MFN clause by home and host states indicates that MST cannot be broadened beyond customary international law

Exception regarding environmental measures can be invoked as a defence on the merits, but is not a jurisdictional issue

DOB clause can be invoked at any moment by the respondent, but the provision does not apply in this case

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