Key Benefits:
1069 OF 2006
(July 31)
Official Journal No. 46.346 of 31 July 2006
CONGRESS OF THE REPUBLIC
By means of which the "Agreement between the Republic of Colombia and the Kingdom of Spain for the Promotion and Reciprocal Protection of Investments" is approved, made and signed in Bogotá, D. C., on March 31, 2005.
COLOMBIA CONGRESS
Having regard to the text of the "Agreement between the Republic of Colombia and the Kingdom of Spain for the Promotion and Reciprocal Protection of Investments", made and signed in Bogotá, D. C., on 31 March 2005, which reads:
(To be transcribed: photocopy of the full text of the International Instrument mentioned).
AGREEMENT BETWEEN THE REPUBLIC OF COLOMBIA AND THE KINGDOM OF SPAIN FOR THE PROMOTION AND RECIPROCAL PROTECTION OF INVESTMENTS.
PREAMBLE
The Republic of Colombia and the Kingdom of Spain, hereinafter "the Contracting Parties",
Wishing to intensify economic cooperation to the mutual benefit of both Contracting Parties.
Proposing to create favorable conditions for investments made by investors from each of the Contracting Parties in the territory of the other, and
Recognizing that the promotion and protection of investments under this Agreement stimulates initiatives in this field,
The following have been agreed:
DEFINITIONS.
For the purposes of this Agreement,
1. "Investor" means any natural or natural person or any legal person of one of the Contracting Parties who has made or makes investments in the territory of the other Contracting Party.
(a) by "natural or natural person" means any person who has the nationality of one of the Contracting Parties in accordance with their legislation;
(b) "legal person" shall mean any company or any other legal entity incorporated or duly organized in accordance with the laws of that Contracting Party and having its registered office in the territory of that Party Contracting party, such as public limited liability companies, collective companies or business associations.
2. 'Investments' means any type of economic asset that has been invested by investors of a Contracting Party in the territory of the other Contracting Party in accordance with the law of the other Contracting Party including in Not exclusively, but not exclusively, the following:
(a) the ownership of movable and immovable property, as well as other real property rights such as mortgages, garment rights, usufructs and similar rights;
(b) shares, securities, bonds and any other form of participation with an economic implication in companies;
(c) credit claims and any other contractual performance that has economic value and is linked to an investment. Without prejudice to the rights and obligations that correspond, they are excluded from this definition:
i. External credit operations that do not comply with the internal legal order of each Contracting Party;
ii. Public debt operations;
iii. pecuniary claims derived exclusively from:
(a) commercial contracts for the sale of goods or services by a national or company in the territory of a Contracting Party to a company in the territory of the other Contracting Party; or
(b) the granting of credit in connection with a commercial transaction, the maturity of which is less than three years, such as financing for trade.
d) Industrial property rights and intellectual property, technical procedures (know-how) and goodwill;
e) Concessions granted by law, by an administrative act or under a contract, including concessions to explore, cultivate, extract or exploit natural resources.
Investments made in the territory of a Contracting Party by a company of that same Contracting Party that is owned or effectively controlled, in accordance with the law of the Party receiving the investment, by Investors of the other Contracting Party shall also be considered investments made by these last investors provided that they have been made in accordance with the legal provisions of the first Contracting Party.
No change in the way in which the assets are invested or reinvested will affect their investment character as long as such modification is effected in accordance with the domestic legal order of the law of the Party. Contractor in whose territory the investment was admitted.
3. 'Investment income' means the amounts produced by an investment and, in particular, but not exclusively, profits, dividends, interest, capital gains, fees and fees.
4. The term 'territory' means land, inland waters, the territorial sea and the airspace of each of the Contracting Parties as well as the exclusive economic zone and the continental shelf which extend outside the territory of the territory of the the territorial sea boundary of each of the Contracting Parties on which they have or may have jurisdiction and/or sovereign rights in accordance with the respective laws and international law.
PROMOTING AND ADMITTING INVESTMENTS
1. Each Contracting Party shall promote in its territory, as far as possible, the investments of investors of the other Contracting Party. Each Contracting Party shall accept these investments in accordance with its legal provisions.
2. Where a Contracting Party has admitted an investment in its territory, it shall grant, in accordance with its legal provisions, the necessary permits in connection with such investment and with the performance of licensing contracts, technical, commercial or administrative. Each Contracting Party shall grant in accordance with its legal provisions, whenever necessary, the required authorisations in relation to the activities of consultants or qualified personnel, whatever their nationality.
3. Investments made by investors of a Contracting Party in the territory of the other Contracting Party shall receive fair and equitable treatment and shall enjoy full protection and security, not in any way hindering, by means of arbitrary or discriminatory measures, the management, maintenance, use, enjoyment and sale or liquidation of such investments.
NATIONAL TREATMENT AND MOST FAVORED NATION CLAUSE
1. Each Contracting Party shall grant in its territory to the investments of investors of the other Contracting Party a treatment which shall not be less favourable than that granted, in similar circumstances, to the investments of its own investors or to investments by investors of any third State, which is more favourable to the investor.
2. Both Contracting Parties shall grant to the investors of the other Contracting Party, in respect of the management, maintenance, use, enjoyment and sale or, where appropriate, the liquidation of investments made in their territory, a treatment no less favourable than that agreed in similar circumstances, to its own investors or to investors of a third State, which is more favourable to the investor.
3. The treatment granted pursuant to paragraphs 1 and 2 of this Article shall not be construed as requiring any Contracting Party to extend to the investors of the other Contracting Party and its investments the the benefit of any treatment, preference or privilege resulting from their association or participation, current or future, in a free trade area, customs union, economic or monetary union or in any other form of regional economic organisation or international agreement of similar characteristics.
NATIONALIZATION AND EXPROPRIATION.
1. Investments by investors of a Contracting Party in the territory of the other Contracting Party shall not be subject to nationalization, expropriation or any other measure of similar effect (hereinafter "expropriation") except for reasons of of public utility or social interest, in accordance with due legal procedure, in a non-discriminatory manner and accompanied by the payment of an early, adequate and effective compensation.
2. The compensation will be equivalent to the fair market value that the expropriated investment had immediately before adopting the measure of expropriation or before the imminence of the same one out of public knowledge, what happens first (in "date of assessment").
3. The fair market value shall be calculated in a freely convertible currency, at the exchange rate prevailing on the market for that currency at the valuation date. The compensation shall include interest at a commercial rate fixed on the basis of market criteria for that currency from the date of expropriation to the date of payment. The compensation shall be paid without undue delay, effectively and freely transferable.
4. The affected investor shall be entitled, in accordance with the law of the Contracting Party making the expropriation, to the prompt review, by the judicial authority or other competent and independent authority of that Contracting Party, of their case for determining whether the expropriation and valuation of their investment have been adopted in accordance with the principles set out in this Article.
5. If a Contracting Party expropriates the assets of a company that is incorporated in its territory in accordance with its existing legislation and where there is investor participation of the other Contracting Party, the first Contracting Party it shall ensure that the provisions of this Article are applied in such a way as to ensure that such investors are promptly, appropriately and effectively compensated.
6. The Contracting Parties may establish, in accordance with the law and for reasons of public utility or social interest, monopolies that deprive an investor of developing an economic activity. The investor shall receive prompt, appropriate and effective compensation under the conditions laid down in this Article.
7. The Contracting Parties confirm that the issuance of compulsory licenses under the provisions of the WTO TRIPS Agreement cannot be challenged under the provisions of this Article.
LOSS COMPENSATION.
Investors of a Contracting Party whose investments in the territory of the other Contracting Party suffer losses due to war or other armed conflict, revolution, national state of emergency, insurrection, disturbance or any other similar event, shall enjoy in respect of restitution, compensation, compensation or other agreement, of the same treatment as the last Contracting Party grants to the own investors, or of the treatment granted by virtue of the clause of the Nation More Favoured.
TRANSFERS.
1. Each Contracting Party shall ensure that investors in the other Contracting Party are free to transfer all payments related to their investments, in particular, but not exclusively, the following:
(a) the initial capital and additional sums necessary for the maintenance, expansion and development of the investment;
(b) investment income as defined in Article 1
(c) the funds required for the repayment of loans linked to an investment;
(d) the compensation and compensation provided for in Articles 4 and 5
(e) the proceeds of the sale or settlement of an investment in whole or in part;
(f) salaries and other remuneration received by staff engaged abroad in relation to an investment;
g) payments resulting from dispute settlement.
2. The transfers referred to in this Agreement shall be made without delay or restrictions in accordance with the practices of the international financial centres. In particular, it shall not be more than three months from the date on which the investor has duly submitted the necessary requests for the transfer until such time as the transfer is actually effected. Therefore, each Contracting Party undertakes to comply with the formalities necessary for its transfer including those relating to information and the purchase of foreign currency prior to the aforementioned term.
3. Without prejudice to the provisions of paragraphs 1 and 2 of this Article, each Contracting Party may delay or prevent a transfer by means of the equitable, non-discriminatory and good faith application of measures:
a) Destined to protect the rights of creditors;
(b) In relation to criminal offences and decisions or judgments in administrative and judicial proceedings;
The above, provided that such measures and their application are not used as a means to circumvent the commitments or obligations of the Contracting Party under this Article.
4. By way of derogation from paragraphs 1 and 2 of this Article, in circumstances of macroeconomic imbalances which seriously affect the balance of payments or the threat to which they may affect the balance of payments, the Contracting Parties may temporarily restrict transfers, provided that such restrictions are compatible or are issued in accordance with or apply at the request of the IMF and are established in a fair, non-discriminatory and in good faith manner.
OTHER PROVISIONS.
1. If the legal provisions of one of the Contracting Parties or of the obligations arising out of International Law outside this Agreement, current or future, between the Contracting Parties, result in a general or special regulation by virtue of which investment by investors of the other Contracting Party is to be accorded more favourable treatment than that provided for in this Agreement, such regulation shall prevail over this Agreement as soon as it is more favourable.
2. The more favourable conditions than those of this Agreement which have been agreed by one of the Contracting Parties to the investors of the other Contracting Party shall not be affected by this Agreement.
3. Nothing in this Agreement shall affect the provisions of the International Treaties governing the intellectual property rights in force at the time of signature of the Agreement.
SUBROGATION.
1. If a Contracting Party or the agency designated by it is to make a payment under an insurance or guarantee contract awarded against non-commercial risks in connection with an investment by any of its investors in the territory of the other Contracting Party, the latter Contracting Party shall recognize the subrogation of any right or title of such investor in favour of the first Contracting Party or its designated agency and the right of the first Contracting Party or its agency designated to exercise, by virtue of the subrogation, any right or title to the same extent as their previous holder. This subrogation shall make it possible for the first Contracting Party or the agency designated by it to be direct beneficiaries of all types of compensation or compensation payments to which the initial investor may be creditor.
2. Where a Contracting Party or a body authorized by the Contracting Party has subrogated itself to the rights of the investor, that investor shall not be entitled to claim its rights and benefits to the other Contracting Party, unless expressly authorized by the first Contracting party or authorised body.
SOLUTION OF DISPUTES BETWEEN THE CONTRACTING PARTIES.
1. Any dispute between the Contracting Parties concerning the interpretation or application of this Agreement shall be resolved, as far as possible, by diplomatic means.
2. If the dispute cannot be resolved in that way within six months of the start of the negotiations, it shall be submitted, at the request of either Contracting Party, to an arbitration tribunal.
3. The arbitration tribunal shall be constituted as follows: each Contracting Party shall appoint an arbitrator and these two arbitrators shall elect a citizen of a third State with which both Contracting Parties maintain diplomatic relations, such as president. The arbitrators shall be appointed within three months and the chairman within five months of the date on which either Contracting Party has communicated to the other Contracting Party its intention to subject the conflict to a court of arbitration.
4. If, within the time limits provided for in paragraph 3 of this Article, no necessary appointments have been made, any of the Contracting Parties may, in the absence of another agreement, invite the President of the International Court of Justice to make the necessary designations. If the President of the International Court of Justice is unable to perform such a function or is a national of any of the Contracting Parties, the Vice-President shall be invited to carry out the relevant designations. If the Vice-President is unable to perform such a function or is a national of any of the Contracting Parties, the designations shall be made by the member of the International Court of Justice who follows him in seniority other than national of the Contracting Parties. none of the Contracting Parties.
5. The court of arbitration shall decide on the basis of the provisions contained in this Agreement and the generally accepted principles of International Law.
6. Unless otherwise decided by the Contracting Parties, the court shall establish its own procedure.
7. The court shall take its decision by a majority vote and shall be final and binding on both Contracting Parties.
8. Each Contracting Party shall bear the costs of the arbitrator designated by it and those related to its representation in the arbitral proceedings. Other expenditure, including those of the President, shall be borne by equal parties by both Contracting Parties.
DISPUTES BETWEEN A CONTRACTING PARTY AND INVESTORS FROM THE OTHER CONTRACTING PARTY.
1. In the case of administrative acts, in order to submit a complaint to the internal forum or to the arbitration provided for in this Section, it will be essential to use the governmental route in advance when the legislation of the Party so requires.
2. Any dispute relating to investments arising between one of the Contracting Parties and an investor of the other Contracting Party in respect of matters governed by this Agreement shall be notified in writing, including detailed, by the investor to the Contracting Party receiving the investment. As far as possible, the parties to the dispute will try to settle these differences through a friendly agreement.
3. If the dispute cannot be resolved in this way within six months from the date of the written notification referred to in paragraph 2, the dispute may be submitted, at the choice of the investor, to:
(a) the competent courts of the Contracting Party on whose territory the investment was made; or
(b) an ad hoc arbitration tribunal established in accordance with the Arbitration Rules of the United Nations Commission for International Trade Law; or
(c) the International Center for Settlement of Investment Disputes (C.I.A.D.I.) created by the "Convention on the Settlement of Differences Relating to Investments between States and Nationals of Other States", opened for signature in Washington on 18 March 1965, when each State party to this Agreement has acceded to that Agreement. If one of the Contracting Parties is not a Contracting State to the said Convention, the dispute may be resolved in accordance with the Supplementary Mechanism for the Administration of Conciliation, Arbitration and Verification Procedures. made by the Secretariat of the C.I.A.D.I.
4. Provided that the period provided for in paragraph 3 has elapsed and that the challenger investor has notified in writing 90 days in advance of the Contracting Party's intention to submit the claim to arbitration, the investor Contender may submit the claim to arbitration.
The notice provided for in this paragraph shall be based on the claim that the Contracting Party has violated an obligation established in this Agreement and that the investor has suffered loss or damage under the violation or as a result of it. The notification shall specify the name and address of the claimant, the provisions of the Agreement which it considers to be in breach, the facts and the estimated value of the damages and compensation.
5. The investor will not be able to file a claim if more than 3 years have elapsed since the date on which he became aware of or should have been aware of the alleged violation of this Agreement, as well as any losses or damages. suffered.
Without prejudice to paragraph 1 of this Article, in the case of administrative acts, the 3 years referred to in this paragraph shall be counted from the fact that such acts are considered to be final or final.
6. Each Contracting Party gives its prior and irrevocable consent that any dispute of this nature may be subject to any of the arbitral proceedings referred to in subparagraphs (b) and (c) of paragraph 3 of this Article.
7. Within 30 days following the submission of a claim to arbitration by an investor from one of the Contracting Parties, the other Contracting Party may request the financial authorities of the Contracting Parties to consult each other. whether the origin of the dispute is an equitable, non-discriminatory and bona fide prudential measure on the financial sector. The consultations will be held for 120 days. If the authorities of both Contracting Parties consider that the origin of the dispute is an equitable, non-discriminatory and bona fide prudential measure, the responsibility of the Contracting Party that is a party to the dispute shall be excluded. For the purposes of this paragraph, prudential measures on the financial sector are defined as those that are taken for the maintenance of the financial institutions ' security, solvency, integrity or financial liability.
8. Once the investor has submitted the dispute to the competent court of the Contracting Party on whose territory the investment or some of the arbitral proceedings referred to above have been admitted, the choice of one or another forum will be final.
9. Arbitration shall be based on the provisions of this Agreement, the national right of the Contracting Party on whose territory the investment has been made, including rules on conflicts of law, and on rules and principles generally admitted under international law.
10. The Contracting Party which is a party to the dispute shall not be able to invoke in its defence the fact that the investor, under an insurance or guarantee contract, has received or is to receive compensation or other compensation for the total or part of the losses incurred in accordance with the provisions of Article 8.
11. Arbitration decisions will be final and binding on the parties to the dispute. Each Contracting Party undertakes to execute the judgments in accordance with its national law.
12. The Contracting Parties shall refrain from dealing with diplomatic channels, matters relating to disputes, and a Contracting Party and an investor from the other Contracting Party subject to judicial proceedings or international arbitration. in accordance with the provisions of this Article, except where one of the parties to the dispute has failed to comply with the judgment or the award of the arbitral tribunal, in the terms set out in the respective judgment or Arbitration award.
SCOPE.
1. This Agreement shall apply to investments made, before or after the entry into force of this Agreement, by investors of a Contracting Party in the territory of the other Contracting Party in accordance with the legal provisions of this Agreement. last. However, it shall not apply to disputes which may have arisen prior to its validity or to disputes relating to events occurring prior to its entry into force, even if its effects remain after the entry into force.
2. Nothing in this Agreement shall require any Contracting Party to protect investments made with funds or assets of illicit origin, nor shall it be construed as preventing a Party from adopting or maintaining measures. intended to preserve public order.
3. The provisions of this Agreement shall not apply to tax matters.
4. In the event that the investor is a natural or natural person who holds the nationality of both Contracting Parties, this Agreement shall apply only in respect of those investments in the territory of the State in respect of the which the investor is not effectively exercising nationality.
5. For the purposes of the preceding paragraph, the State of the effective nationality shall mean that the investor maintains full political links and has established in him his habitual domicile under the provisions of the Convention of dual nationality between Spain and Colombia of 27 June 1979 and its Additional Protocol of 14 September 1998.
QUERIES.
The Contracting Parties shall consult each other on any matter related to the application or interpretation of this Agreement.
ENTRY INTO FORCE, DURATION, AND TERMINATION.
1. This Agreement shall enter into force 60 days after the date on which the Contracting Parties have notified each other that the respective constitutional formalities required for the entry into force of international agreements have been fulfilled. It will remain in force for an initial period of ten years. After the expiry of the initial period of validity, it shall continue in force indefinitely unless it is denounced by any of the Contracting Parties by written notification to the other Contracting Party. The complaint shall take effect 12 months after such notification.
2. With respect to investments made prior to the date of termination of this Agreement, the provisions contained in the other Articles of this Agreement shall continue to be in force for an additional period of ten years from the date of termination of the Agreement.
Made in double copy in Bogotá, D. C., on March 31, 2005 in Spanish, both texts being equally authentic.
By the Republic of Colombia,
CAROLINA BOAT,
Minister of Foreign Affairs.
By the Kingdom of Spain,
MIGUEL ANGEL MORATINOS,
Minister of Foreign Affairs
and Cooperation.
EXECUTIVE BRANCH OF PUBLIC POWER
PRESIDENCY OF THE REPUBLIC
Bogotá, D. C., May 4, 2005
Approved. Submit to the consideration of the honorable National Congress for the constitutional effects.
(Fdo.) ALVARO URIBE VELEZ
The Foreign Minister,
(FDO.) CAROLINA BOAT ISAKSON.
DECRETA:
Article 1o. Approve the "Agreement between the Republic of Colombia and the Kingdom of Spain for the Promotion and Reciprocal Protection of Investments", made and signed in Bogotá, D. C., on 31 March 2005.
Article 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the "Agreement between the Republic of Colombia and the Kingdom of Spain for the Promotion and Reciprocal Protection of Investments", made and signed in Bogotá, D. C., on 31 March 2005, Article 1o of this law shall be adopted, shall bind the country from the date on which the international link with respect to it is perfected.
Article 3o. This law governs from the date of its publication.
Dada en Bogotá, D. C., a ...
Presented to the honorable Congress of the Republic by the Minister of Foreign Affairs, the Minister of Finance and Public Credit and the Minister of Commerce, Industry and Tourism.
The Foreign Minister,
SHIP CAROLINA.
The Minister of Finance and Public Credit,
ALBERTO CARRASQUILLA.
The Minister of Commerce, Industry and Tourism,
JORGE HUMBERTO BOTERO.
EXECUTIVE BRANCH OF PUBLIC POWER
PRESIDENCY OF THE REPUBLIC
Bogotá, D. C., May 4, 2005
Approved. Submit to the consideration of the honorable National Congress for the constitutional effects.
(Fdo.) ALVARO URIBE VELEZ
The Foreign Minister,
(FDO.) CAROLINA BOAT ISAKSON.
DECRETA:
Article 1o. Approve the "Agreement between the Republic of Colombia and the Kingdom of Spain for the Promotion and Reciprocal Protection of Investments", made and signed in Bogotá, D. C., on 31 March 2005.
Article 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the "Agreement between the Republic of Colombia and the Kingdom of Spain for the Promotion and Reciprocal Protection of Investments", made and signed in Bogotá, D. C., on 31 March 2005, Article 1o of this law shall be adopted, shall bind the country from the date on which the international link with respect to it is perfected.
Article 3o. This law governs from the date of its publication.
The President of the honorable Senate of the Republic,
BARBERI ' S CLAUDIA BLUM.
The Secretary General of the honorable Senate of the Republic,
EMILIO RAMON OTERO DAJUD.
The President of the honorable House of Representatives,
JULY E. GALLARDO ARCHBOLD.
The Secretary General of the honorable House of Representatives,
ANGELINO LIZANO RIVERA.
COLOMBIA-NATIONAL GOVERNMENT
Communicate and comply.
Execute, upon revision of the Constitutional Court, pursuant to article 241-10 of the Political Constitution.
Dada en Bogotá, D. C., at 31 July 2006.
ALVARO URIBE VELEZ
The Foreign Minister,
CAROLINA BOAT ISAKSON.
