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FTA’s exception for environmental measures does not bar compensation for conduct otherwise in breach
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While Colombia’s conduct was not perfect, none of these issues rose to the level of an MST breach
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Majority of the tribunal holds that it can and should rely on “case law” to elucidate scope of minimum standard of treatment
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Colombia’s conduct does not pass “rare circumstances” test required to find an expropriation under the FTA
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Claimant never acquired title to the mining concession, and state’s refusal to acknowledge assignment was not arbitrary
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Mining concession was covered by transition regime, and rights of exploration and exploitation had been grandfathered
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Impact of treaty’s environmental carve-out to be reviewed with the merits
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Claimant’s core corporate functions were carried out in Canada, defeating state’s bid to deny benefits
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Under the FTA, states can deny benefits to claimants even after claim has been lodged
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Purpose of Notice of Intent is to appraise state of controversy and start cooling-off period
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Dispute stems from cumulative string of actions, some of which took place after treaty entered into force
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Claimant “made” an investment by expanding resources after having initially passively acquired title to the relevant assets
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By entirely controlling local branch, claimant can invoke this branch’s only asset as its investment for the purpose of the treaty
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Claimant never acquired title to the concession, which therefore does not qualify as a protected investment under the FTA – but potential investment remains relevant
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Actions by Secretary-General are entitled to presumption of validity to enhance predictability of proceedings
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Tribunal has jurisdiction to review Acting Secretary-General’s decision not to discontinue case, although that decision should in principle be respected
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Rule 45 does not mandate automatic discontinuance of the proceedings
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Background: Colombia bans high-altitude mining, and Constitutional Court later strikes down grandfathering regime as unconstitutional
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Order on costs is rectified based on parties’ advance payments
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Omission of reference to compound interest in dispositive part of award can be remedied through rectification
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Cost of debt in Peru is reflected by standard US bond rate plus Peru’s country risk premium at the date of the Award
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Tribunal confirms previous reasoning on reference date for interest, opining that substantive revisions do not fall within scope of rectification proceedings
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Partial bifurcation is against procedural efficiency if it cannot lead to disposal of arbitration
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Tribunal finds that, prima facie, analysis of the merits is necessary to deal with most jurisdictional objections
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