News 09 Nov. 2021

Law360 quotes Simon Batifort on Eco Oro v. Colombia Arbitration Decision

Law360 quoted Partner Simon Batifort in an article published on November 4, entitled, “Critics Take Aim at ‘Dead Wrong’ Decision in Colombia Case.” The article focuses on the ICSID tribunal’s September ruling in favor of Eco Oro Minerals Corp. in its international arbitration case against Colombia.

In the article, Mr. Batifort said, “The treaty at issue in Eco Oro was not one of the old-generation bilateral investment treaties that’s just a few pages long and has a lot of areas of ambiguity and silence on key issues…The treaty between Colombia and Canada, that’s a comprehensive free trade agreement with a lengthy investment chapter that contains many limitations that you don’t find in traditional old-generation [bilateral investment treaties].”

“We’ve been telling our clients, ‘Be careful with these treaties. There’s a tendency for arbitrators to interpret them expansively,’ and then you still have negotiators who include [investor-state dispute settlement] in their treaties”… With the Eco Oro case, “we see that even with an express exception, where the tribunal did not dispute that the measures fell within it, they found a way to get around it. It vindicates what we've been saying about the dangers of this mechanism.”

“In a way,” Batifort added, the decision “sends the wrong message to states that have had enough with expansive interpretations of investment treaties. It’s telling them that no matter how clear they make their intention in the treaty, there’s always a risk that tribunals will find a way to render a decision that circumvents that intention and that’s favorable to the claimant.”