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LAW 1462
(June 29)
Official Journal No. 48.116 of 30 June 2011
CONGRESS OF THE REPUBLIC
By means of which the "Bilateral Agreement for the Promotion and Protection of Investments between the Government of the Republic of Colombia and the Government of the People's Republic of China" is approved, signed in Lima, Peru, on 22 November of 2008.
THE CONGRESS OF THE REPUBLIC
Having regard to the text of the "Bilateral Agreement for the Promotion and Protection of Investments between the Government of the Republic of Colombia and the Government of the People's Republic of China"signed in Lima, Peru, on 22 November 2008, which to the letter says:
(To be transcribed: photocopy of the full text of the above international instruments is attached).
2010 BILL NUMBER 60
by means of which the "Bilateral Agreement for the Promotion and Protection of Investments between the Government of the Republic of Colombia and the Government of the People's Republic of China" is approved, signed in Lima, Peru, on 22 November 2008.
The Congress of the Republic
Having regard to the text of the "Bilateral Agreement for the Promotion and Protection of Investments between the Government of the Republic of Colombia and the Government of the People's Republic of China"signed in Lima, Peru, on 22 November 2008, which to the letter says:
(To be transcribed: Full and faithful photocopy of the Spanish text of the Bilateral Agreement for the Promotion and Protection of Investments between the Government of the Republic of Colombia and the Government of the People's Republic of China, taken from the original text, an instrument that rests in the archives of the Legal Office of the Ministry of Foreign Affairs, which consists of thirteen (13) folios).
BILATERAL AGREEMENT FOR THE PROMOTION AND PROTECTION OF INVESTMENTS BETWEEN THE GOVERNMENT OF THE REPUBLIC OF COLOMBIA AND THE GOVERNMENT OF THE PEOPLE ' S REPUBLIC OF CHINA
PREAMBLE
The Government of the Republic of Colombia and the Government of the People's Republic of China, hereinafter referred to as the "Contracting Parties";
Eager to increase economic cooperation for the mutual benefit of the Contracting Parties,
With the intention of generating and maintaining favorable conditions for investors ' investments of one of the Contracting Parties in the territory of the other Contracting Party;
Recognizing that the encouragement, promotion and reciprocal protection of these investments will lead to the generation of business initiatives by investors and increase prosperity in the two nations;
You have agreed to the following:
For purposes of this Agreement:
1. Investment
1.1 The term investment refers to any type of economic asset that has been invested by the investors of a Contracting Party in the territory of the other Contracting Party in accordance with the legislation[1] last, including in particular, but not exclusively, the following:
(a) Property on movable and immovable property and other property rights, such as mortgages, garments and other similar;
b) Actions, capital and any other type of economic participation in companies;
c) Claims of money or any other benefit, including obligations that have a monetary value associated with an investment;
d) Intellectual property rights, including in particular copyright and related rights, and industrial property rights, such as patents, technical processes, trademarks and trademarks, trade names, designs industrial, know-how and goodwill;
e) Concessions granted by law or an administrative act or under a contract under the law, including concessions to explore, cultivate, extract or exploit natural resources;
f) All foreign loan operations over three years of maturity, as established by the law of each Contracting Party with respect to an investment.
Investment does not include:
i. Public debt operations;
ii. Pecuniary claims derived exclusively from:
(a) Commercial contracts for the sale of goods and services by a national or a legal entity in the territory of a Contracting Party to a national or legal entity in the territory of the other Contracting Party; or
b) Credits granted in connection with a business transaction.
1.2 Any change in the manner in which the assets are invested or reinvested does not affect their investment character, provided that such change is made in accordance with the law of the Contracting Party in whose territory the investment.
1.3 In accordance with paragraph 1 of this article, the minimum characteristics of an investment must be:
a) The input of capital or other resources;
b) The expectation of profit or profit;
c) The assumption of a risk by the investor.
2. Investor
2.1 The word "investor" means:
(a) Natural persons having the nationality of any of the Contracting Parties, in accordance with the law of that Contracting Party;
(b) Legal entities including companies, associations, companies and other organizations incorporated under the law of any of the Contracting Parties, having their headquarters as well as substantial economic activities in the territory of such Contracting Party;
c) Legal entities not established under the law of that Party, but effectively controlled by natural persons as defined in paragraph 2.1.a or by legal entities as defined in paragraph 2.1.b.
2.2. This Agreement shall not apply to investments made by natural persons who are nationals of the two Contracting Parties.
3. Income
The term "rents" refers to amounts generated by an investment, including earnings, dividends, interest, capital gains, royalties, fees, and other legitimate income.
4. Territory
The term "territory" means the territory of any of the Contracting Parties, including land territory, internal waters, territorial sea and airspace above these, as well as any maritime area beyond the territorial sea over which, under international law and national law, the Contracting Party exercises sovereign rights or jurisdiction with respect to the waters, the sea floor, the subsoil and the natural resources thereof.
ARTICLE 2. PROMOTION, ADMISSION AND PROTECTION OF INVESTMENTS.
1. Each Contracting Party shall promote in its territory the investments of investors of the other Contracting Party and support them in accordance with its legislation.
2. Without prejudice to their legislation, no Contracting Party shall take unreasonable or discriminatory measures against the administration, maintenance, use, enjoyment, disposal and settlement of such investments.
3. Each Party shall grant fair and equitable treatment to investors ' investments from the other Contracting Party in accordance with customary international law and shall grant them full protection and security on their territory.
4. For clarity,
a) The concepts "fair and equitable treatment" and "full protection and security" do not require additional treatment of that required under the minimum standard of treatment of foreigners in accordance with the standard of customary international law.
(b) The determination of the existence of a violation of another provision of this Agreement or other international agreement does not imply that there is a violation of the minimum standard of treatment of foreigners.
c) "Fair and equitable treatment" includes the prohibition of denying justice in criminal, civil or administrative proceedings, in accordance with the generally successful principles of customary international law.
d) The standard of "full protection and security" does not in any way imply a better treatment than that granted to nationals of the Contracting Party where the investment has been made.
5. Subject to their legislation, a Contracting Party shall provide assistance and facilities for the entry and obtaining of work permits to nationals of the other Contracting Party involved in activities related to investments. carried out in the territory of that Contracting Party.
ARTICLE 3. INVESTMENT TREATMENT.
1. Without prejudice to its law at the time when the investment is made, each Contracting Party shall grant to the investors ' investments of the other Contracting Party a treatment no less favourable than that which it grants, in similar circumstances, to the investments of its own investors with respect to the operation, management, use, enjoyment or disposal of investments.
2. Each Contracting Party shall grant to the investments of the investors of the other Contracting Party a treatment no less favourable than that which it grants, in similar circumstances, to the investments of investors of any third party with respect to the operation, management, use, enjoyment or disposal of investments.
3. The most favorable treatment to be granted in similar circumstances referred to in this Agreement, does not include mechanisms for the settlement of investment disputes, such as those contained in Articles 8 (Resolution of Disputes between the Parties). Contractors) and 9o (Dispute Resolution between a Contracting Party and an Investor of the other Contracting Party) of this Agreement, which are established, in international investment agreements or agreements.
4. The provisions of this Agreement relating to the granting of a treatment no less favourable to that which is granted to investors ' investments of each Contracting Party or any third party shall not be construed as obliging a Contracting Party to extend to the investments of the investors of the other Contracting Party the benefit of any treatment, preference or privilege resulting from: any area of free trade current or future, customs union, market common, economic union and any international agreement resulting in similar institutions; any related international agreement or agreement in its entirety or primarily with taxation; or any international agreement for the facilitation of cross-border trade in border areas, of which a Contracting Party is a party or do in part.
ARTICLE 4. EXPROPRIATION AND COMPENSATION.
1. No Contracting Party shall expropriate, directly or indirectly, nationalize or adopt other similar measures (hereinafter "expropriation") against the investments of the investors of the other Contracting Party in its territory, unless the following conditions are met:
a) for public interest, public purpose or social interest;
b) under national legal procedures and respecting due process;
c) without discrimination; and
d) with compensation.
2. It is understood that:
(a) Indirect expropriation is the result of a measure or series of measures of a Contracting Party having an effect equivalent to a direct expropriation without the formal transfer of the title or right of ownership;
(b) The determination of whether a measure or series of measures of a Contracting Party constitutes indirect expropriation requires a case-to-case analysis, based on the facts and considering:
i) The economic impact of the measure or series of measures; however, the mere fact that a measure or series of measures have adverse effects on the economic value of an investment does not imply that an indirect expropriation has occurred;
(ii) the extent of the measure or series of measures and their interference with reasonable and distinguishable expectations regarding investment;
c) Non-discriminatory measures of the Contracting Party designed and applied for public purposes or social interests or with objectives such as public health, safety and environmental protection do not constitute indirect expropriation. Except in exceptional circumstances, such as when such a measure or series of measures are too severe for their purposes, that they cannot be reasonably considered to be adopted and applied in good faith.
3. The allowance referred to in paragraph 1 of this Article shall be appropriate. In this sense, the compensation must be equal to the fair market value of the investments expropriated immediately before the expropriation is adopted or the imminence of the expropriation is of public knowledge, what happens first, (hereinafter, "date of assessment"). Compensation will also be paid as soon as possible, effectively and will be freely transferable.
4. The fair market value shall be calculated in a currency freely convertible at the exchange rate of the valuation date. The compensation shall include interest at the commercial rate fixed in accordance with the market criteria for that currency, accumulated from the date of expropriation to the date of payment. The compensation shall be paid without undue delay, shall be effectively and freely transferable.
5. Subject to this Article, the Contracting Parties may establish State monopolies, provided that they are for reasons of public utility or social interest. In this case, the investor will receive prompt, appropriate and effective compensation, taking into account the conditions set forth in this article.
6. The Contracting Parties confirm that the issuance of compulsory licenses granted in accordance with Articles 30 and 31 of the WTO TRIPS Agreement shall not be challenged under the provisions of this Article.
ARTICLE 5. COMPENSATION FOR DAMAGES OR LOSSES.
Investors of a Contracting Party whose investments in the territory of the other Contracting Party suffer losses due to war, armed conflict, revolution or state of national emergency, insurrection, disturbances or any other similar event, shall enjoy, in respect of restitution, compensation, compensation or other arrangements, of a treatment not less favorable to that granted to its own investors or to investors of a third party, whichever is more favorable for the investor involved.
1. Each Contracting Party, after meeting the requirements laid down in its legislation, shall without undue delay allow the investors of the other Contracting Party to make, in currency of free convertibility, the transfer of:
(a) The initial capital and additional sums necessary for the maintenance, expansion and development of the investment;
(b) Income as defined in Article 1 (Definitions);
(c) Payments made by a loan related to investments;
d) Nothing in paragraph 1o of this article will affect the free transfer of compensation paid under Articles 4 (Expropriation and Compensation) and 5o (Damage or Loss Compensation) to this Agreement;
e) The proceeds of the sale or settlement of an investment in whole or in part;
(f) The remuneration of nationals of the other Contracting Party working in connection with an investment in their territory.
2. The abovementioned transfers shall be made in a freely convertible currency and the exchange rate applicable in the Contracting Party which admitted the investment and the date of transfer.
3. The provisions of the preceding paragraphs of this Article shall not prevent any Contracting Party from imposing currency restrictions in accordance with its applicable laws and regulations.
If a Contracting Party or the agency designated by it makes a payment to its investors under a guarantee or an insurance contract awarded against non-commercial risks in connection with an investment made in the territory of the other Contracting Party, the latter shall recognise:
(a) subrogation, either by law or by a legal transaction in the Contracting Party, of any of the rights or claims by investors to the Contracting Party or the agency designated by it, as well as;
b) that the Contracting Party or the agency designated by it, is entitled under the subrogation, to exercise the rights, to demand the claims of that investor and to assume the obligations related to the investment to the same extent as the investor.
ARTICLE 8. RESOLUTION OF DISPUTES BETWEEN CONTRACTING PARTIES.
1. Disputes arising between Contracting Parties with respect to the interpretation and application of this Agreement, including a complaint alleging that the other Contracting Party has violated one of the obligations of this Agreement and accordingly has caused injury to an investor, should be resolved, as far as possible, with consultations through diplomatic channels.
2. If a dispute cannot be resolved in the following six (6) months, it shall be referred, at the request of any of the Contracting Parties, to an ad hoc Arbitration Tribunal, in accordance with the provisions of this Agreement. Article.
3. The Court of Arbitration shall be composed of three members, and unless otherwise agreed by the Parties, it shall be constituted as follows: within two (2) months of the date of notification of the request for arbitration, each Contracting Party appoint an arbitrator. These two arbitrators, within three (3) months of the date of the last appointment, shall then appoint a third member, who shall be a national of a third State with which both Contracting Parties maintain diplomatic relations, and who will preside over the court.
4. If the Court of Arbitration has not been constituted within five months of receipt of the written notification of the request for arbitration, any Contracting Party may, in the absence of any other agreement, request the President of the International Court of Justice to make the appointments of the case. If the President is a national of either of the Contracting Parties or is not entitled to exercise those functions, the member of the International Court of Justice who follows him in seniority and is not a national of any of the Contracting Parties or is not disabled to exercise those functions, will be requested to make the appointments of the case.
5. The Court of Arbitration shall decide on the basis of the provisions of this Agreement and the principles of international law applicable to the matter in question. The Court will take its decisions with the majority of votes and determine its own rules of procedure. The award shall be final and binding on both Contracting Parties. The Court shall, at the request of any of the Contracting Parties, explain the reasons for the award.
6. Each Contracting Party shall bear the costs of the arbitrator it designates and its representation in the arbitration process. Costs related to the President and other costs of the tribunal shall be assumed in equal parts by the Contracting Parties.
1. In the case of acts of a governmental authority, to submit a complaint to arbitration, under the provisions of this article or to a Local Court, the local administrative resources shall be exhausted if required by the law of the Contracting Party. In no event shall such a procedure exceed six months from the date of its initiation by the investor and shall not prevent the investor from requesting the conduct of consultations as set out in paragraph 3 of this Article. Article.
2. Any dispute between an investor of a Contracting Party and the other Contracting Party in connection with an investment in the territory of the other Contracting Party shall be settled, as far as possible amicably. Any difference shall be notified with the written submission of a notice of intent, including detailed information of the facts and the grounds of law, by the investor to the Contracting Party receiving the investment.
3. Nothing in this article shall be construed as preventing the Parties from a dispute, by mutual agreement, from attending an ad hoc or institutional mediation or conciliation, before or during the arbitration process.
4. If the dispute has not been settled in the nine (9) months following the date of written notification referred to in paragraph 2 of this article, it may be referred, at the choice of the investor to:
a) The Competent Court of the Contracting Party that is a Party to the dispute;
b) The International Center for Settlement of Investment Disputes (ICSID), under the rules of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, opened for signature in Washington D. C. on March 18, 1965.
In the event that one of the Contracting Parties is not a Contracting State to that Convention, the dispute may be settled in accordance with the ICSID Regulation on the Supplementary Mechanism for the Administration of Conciliation Procedures, Arbitration and Fact Check; or
(c) A Court of Arbitration under any other arbitration institution or any other arbitration rules, agreed by the Contracting Parties.
5. The challenger investor may only submit a claim to arbitration if the term set forth in paragraph 4 of this article has elapsed and the challenger investor has notified in writing and ninety (90) days prior to the Contracting party of its intention to submit a complaint to arbitration. Such notification shall indicate the name and address of the challenger investor, the provisions of the Agreement deemed to have been violated, the facts on which the dispute is based, the estimated value of the damages and the compensation expected.
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 established in paragraphs 4. (b) and (c) of this Article.
7. Once the investor has submitted the dispute to the competent local court of the Contracting Party that corresponds to or to the ICSID or any of the arbitration mechanisms mentioned above the choice of one or another forum will be final. However, the investor may initiate or continue a precautionary measure that does not involve the payment of monetary damages to a court or administrative court of the defendant, provided that such action has been initiated for the sole purpose of preserve the rights and interests of the investor during the suspension of the arbitration. The initiation or continuation of such action shall not be considered as a final choice of one of the two forums indicated in this paragraph.
8. The arbitration award shall be final and binding on the parties to the dispute. Both Contracting Parties shall commit to the observance of the award.
9. The Contracting Parties shall refrain from dealing with diplomatic channels, matters relating to disputes between a Contracting Party and an investor from the other Contracting Party subject to legal proceedings or international arbitration of agreement. with the provisions of this article, unless one of the parties to the dispute has not complied with the judicial decision or the arbitral award, under the terms set forth in the respective judicial decision or arbitration award.
10. An investor will not be able to file a claim if more than three (3) years have elapsed since the date the investor became aware or should have been aware of the violation alleged to this Agreement, as well as the losses and damages alleged.
11. The dispute settlement mechanisms established in this Agreement shall be based on the provisions of this Agreement, in the national law of the Contracting Party on whose territory the investment has been made, including the rules related to conflict of laws, in general principles of law, and in principles evidenced by the general practice of states and accepted as the right and opinion juris.
12. Before deciding on the substance of the case, the court will decide on the preliminary questions of competence and admissibility.
In deciding on the defendant's objection, the court will have to rule on the costs and legal fees incurred during the process, considering whether or not the objection prospered.
The court will consider whether the plaintiff's claim or the defendant's objection is frivolous or not and should provide the contending parties with a reasonable opportunity to comment. Following the applicable arbitration rules, in the event of a frivolous lawsuit, the court must pay the plaintiff's costs.
13. Where a Court makes a final ruling against a defendant, it may declare the violation of a provision set out in this Agreement and order the payment of monetary damages and any applicable interest as a result of such violation, and may order the payment of costs and legal fees in accordance with this article and applicable arbitration rules. The court will not have jurisdiction to rule on the legality of the measure under domestic law[2]. This provision shall not affect the application of paragraph 11 of this Article.
1. Yes, of the legal provisions of a Contracting Party or of current or future obligations arising out of international law, other than those contained in this Agreement, is a general or particular regulation between the Parties. Contracting parties, establishing a more favourable treatment of investor investment than that provided in this Agreement, such regulation shall prevail over this Agreement to the extent that it is more favourable.
2. The submission of the notification of intention and of other documents relating to the dispute resolution mechanisms shall be made at the place designated by the Contracting Parties in Annex I.
1. This Agreement applies to investments existing at the time of its entry into force, as well as to investments made by investors of the other Contracting Party from that time on the territory of a Contracting Party, the legislation of the latter. However, this Agreement only applies to disputes arising from the entry into force of this Agreement.
2. Nothing in this Agreement shall require any Contracting Party to protect investments made with capital or assets from illicit activities.
1. Nothing in this Agreement shall be construed as preventing a party from adopting or maintaining measures in order to preserve public order, including measures to protect the essential security interests of the State, provided that those measures:
(a) Only apply where there is a genuine and sufficiently serious threat to one of the fundamental interests of society;
b) Do not apply in such a way as to constitute arbitrary discrimination[3];
c) Do not constitute a hidden constraint on investment;
d) Be proportional to the goal they intend to achieve;
e) Be required and are applied and maintained only as long as necessary; and
f) Be applied in a transparent manner and in accordance with national legislation.
For clarity, nothing in this case should be interpreted to limit the review of a case by an arbitration tribunal when that exception is invoked.
ARTICLE 13. PRUDENTIAL MEASURES IN THE FINANCIAL SECTOR.
Notwithstanding any other provision of this Agreement, a Party may not be prevented from adopting or maintaining measures related to financial services for prudential reasons[4], including for the protection of investors, depositors, policy holders or to ensure the integrity and stability of the financial system. If such measures are not in accordance with the provisions of this Agreement, they shall not be used to evade the commitments or obligations of the Party under such provisions, in particular those obligations under the provisions of this Agreement. Articles 4 (Expropriation and Compensation) and 6o (Transfers).
1. Except as provided in this article, nothing in this Agreement shall apply to tax measures.
2. Nothing in this Agreement shall affect the rights and obligations of the Contracting Parties under any tax convention. In the event of any inconsistency between the provisions of this Agreement and those of any such convention, the provisions of such a convention shall apply to the extent of inconsistency.
3. The provisions of Article 4 (Expropriation and Compensation) shall apply to tax measures alleged to be expropriatory.
4. The provisions on Dispute Resolution of this Agreement apply with respect to paragraph 3 of this article.
5. If an investor invokes article 4or (Expropriation and Compensation) as the basis for a claim to arbitration, pursuant to article 9or (Resolution of Disputes Between a Contracting party and an investor from the Other Contracting Party) the following procedure shall apply:
First, the investor must refer to the competent tax authority of the receiving Party to verify whether the tax measure in question involves an expropriation. In the case of such a referral, the competent tax authorities of both parties shall be consulted. Only if within the six months following the referral do not agree on whether the measure does not involve an expropriation, or in the event that the competent tax authorities of the Contracting Parties do not consult each other, the investor may submit its claim to arbitration under Article 9or (Dispute Resolution between a Contracting Party and an Investor of the other Contracting Party).
The Contracting Parties shall consult each other, any matter related to the application or interpretation of this Agreement.
1. Both Contracting Parties shall notify each other, through diplomatic means, that they have completed the internal procedures necessary for the entry into force of this Agreement. This Agreement shall enter into force on the day sixty (60) after receipt of the last notification.
2. This Agreement will remain in force for a period of ten years and will be automatically extended for a further period of ten years. After the first ten years, this Agreement can be denounced at any time by any of the contracting parties, with a prior notification of twelve months sent by diplomatic means.
3. With respect to investments made before the date on which the notification of termination of this Agreement becomes effective, the provisions of this Agreement shall remain in force for an additional period of ten (10) years from that date. date.
4. This Agreement may be amended by written agreement between the Contracting Parties. Any amendments shall enter into force under the same procedures as are required for the entry into force of this Agreement.
IN FE OF THE CUAL, the undersigned, duly authorized by their respective Governments, sign this Agreement.
Signed in duplicate in Lima, Peru, on November 22, 2008, in Chinese, Spanish and English, each text being equally authentic. In case of differences in interpretation, the English text will prevail.
1 In the context of this Agreement, the term "legislation" refers to the respective legal system of the Contracting Parties.
2 For clarity, this will not prevent any of the contending parties from being able to submit, in fact, evidence related to the legality of a measure under domestic law.
3 For clarity, this article shall not be construed as an exception to the obligations laid down in Article 4or (EXPROPRIATION AND COMPENSATION) with respect to compensation.
4 It is understood that the term "prudential reasons" includes the maintenance, soundness, integrity or financial responsibility of individual financial institutions or cross-border financial service providers.
ANNEX I
Presentation of documents to a Party, in relation to article 9or
China
The place of presentation of the notification of intent and other documents related to conflict resolution according to article 9or, in China is as follows:
Ministry of Commerce
2, East Chang An Ave.
Beijing, China
Post Code: 100731
Colombia
The place of filing of the notice of intent and other documents related to the resolution of disputes under article 9or, in Colombia is:
Foreign Investment and Services Management
Ministry of Commerce, Industry and Tourism
Ca1le 28 No 13 A-15
Bogotá, D. C.-Colombia
Honorable Senators and Representatives:
On behalf of the National Government, and pursuant to items 150 numeral 16, 189 numeral 2, and 224 of the Political Constitution, we present to the Honorable Congress of the Republic the bill " for which the ' Bilateral Agreement for the Promotion and Protection of Investments between the Government of Colombia and the Government of the People's Republic of China, signed in Lima, Peru, on 22 November 2008 '.
The People's Republic of China has consolidated itself in recent years as one of the world's emerging economic powers. Strengthening economic ties with the "Asian giant" is an imperative for any developed or developing economy. The Agreement on the Promotion and Protection of Investments, which is presented for consideration by the Congress of the Republic, is an important step for the strengthening of the Colombian-Chinese economic relations.
Today, China is one of the most important emerging economies in the world. Its export capacity increased between 2007 and 2008 by 132%. Their ability to demand goods and services, especially for their demographic density, makes it an attractive market for investors. In 2008, China received $108 billion in FDI, making it the world's third largest recipient of foreign investment [1].
Strengthening relations with this eastern country through this Agreement is an important approach from Colombia to the Asian Pacific, which has become one of the most dynamic poles of the world economy, a core of development and economic growth, an epicenter of trade and investment, a leader in technological advances and an important scenario of economic integration and cooperation, as acknowledged by the multiple missions of members of the Congress of the Republic and the National Government that have visited that country.
The potential of Asian countries as capital exporters is reflected in the 2009 World Investment Report (UNCTAD), according to which FDI outflows from South, East and Southeast Asia increased by 7% in 2008, reaching $186 billion, mainly due to large flows from China.
China has gained ground as a major source of FDI: in 2008 it ranked 13th in the world and third among all developing and transition economies. China's FDI amounted to $52 billion in 2008, up 132% from 2007. At the beginning of 2009, the country's outflow has continued to increase. According to the 2009 World Investment Report (UNCTAD), China was the main recipient of FDI from Asian countries in 2008. Hong Kong followed, with inflows of U$ 63.003 million.
It is further evidence that Asia is being structured as an important axis of the world economy and development. Colombia cannot be an alien to this process and we have been working on a strong strategy of rapprochement with the Asian Pacific, which consists of several elements, including the negotiation of International Investment Agreements as tools. fundamental for the attraction of FDI to our country and for the protection of investment by Colombians in Asia.
The Colombian Government and Congress have been working together for several years to provide greater legal certainty and a better climate of business, in such a way that better conditions for investment in the country are given. Within this context we emphasize the following events:
-- The Honorable Congress of the Republic approved Law 963 of 2005 that seeks to build trust for domestic and foreign investors by subscribing to Legal Stability Contracts. This initiative is an indispensable tool to stimulate the increase in private investment needed by the country to obtain the expected economic growth.
-- Changes have been made to the Statute of International Investments (Decree 2080 of 2000) that aim to guarantee the contribution of investments to the country's economic growth as well as to purge the registration procedures of the investment. In this way, both the control by the State and the simplicity and clarity of the procedures that the investor must carry out in order to make their investment effective.
[El Salvador] The Honorable Congress of the Republic has recently approved several treaties with similar characteristics to the one presented today. Such treaties will also strengthen conditions in Colombia to attract foreign investment:
The Agreement for the Promotion and Reciprocal Protection of Investments between Colombia and Spain, which is in full force, was approved by the Honorable Congress of the Republic by Law 1069 of 2006. Likewise, the Honorable Congress approved similar agreements concluded by Colombia with Peru (Laws 279 of 1996 and 801 of 2003), Switzerland (Law 1198 of 2008), as well as Free Trade Agreements that have an investment chapter, such as those signed with Chile (Law 1189 of 2008) and with Honduras, Guatemala and El Salvador-Northern Triangle-(Law 1130 of 2008).
The improvement of physical and legal security conditions and the rebound in economic growth have been perceived positively by foreign investors who acknowledge Colombia's efforts to improve the investment climate, highlighting the country's favorable conditions for developing its business. The approval by the Honorable Congress of the Republic and the consequent ratification of the Bilateral Agreement for the Promotion and Protection of Investments between the Government of Colombia and the Government of the People's Republic of China will promote the making new reciprocal investments and motivating foreign investors to stay in the country. In addition, it represents one more achievement within the strengthening of our relations with the People's Republic of China.
This paper consists of four parts. The first set out the public policy on foreign investment. In the second, the importance of foreign investment for economic development, supported by figures on foreign investment between Colombia and China, is highlighted. In the third, the content of the Agreement is set out and the conclusions are presented in the fourth.
1. PUBLIC POLICY ON INVESTMENT
This Agreement is part of the forecasts of the National Development Plan "Community State: Development for All" 2006-2010 whose Chapter IV establishes that the Government will develop a comprehensive policy to attract foreign investment, taking into account that foreign capital flows facilitate access to technologies and knowledge and contribute to the macroeconomic consistency of the country[2]. Also, this Development Plan recognizes the emergence of China and India in the global market[3].
But the interest in attracting foreign investment to the country is not limited to the 2006-2010 Development Plan. This is a consistent policy that goes back to the "Towards a Community State" Development Plan, which raised the subscription of bilateral investment treaties as a public policy aimed at economic development.
The positive relationship between the Investment Agreements signed with highly capital-exporting countries and the increase in foreign direct investment flows into a country has been analyzed in econometric studies[4] conclude that these types of agreements are not only important instruments for the country's economic development, in accordance with the provisions of the National Development Plan. Additionally, these agreements also allow for the protection of domestic investments abroad.
Following these guidelines, the Superior Council of Foreign Trade, in its 81st Session of March 27, 2007, determined the guidelines to be followed in the area of investment negotiations, giving priority to the negotiations and consequently, the strengthening of trade relations, with those countries that meet a number of elements such as foreign investment installed in Colombia, recent investment flows, Colombian investment reception, highly exporting countries capital, countries with the greatest potential to invest in technology, among others.
In this prioritization carried out by a judicious economic study of these elements for several countries, the Higher Council of Foreign Trade placed China in the number 12 of the countries of priority in terms of subscription of Agreements of Promotion of Investment, within the Agenda of Negotiations established for the Government. Agreements with 6 countries (Switzerland, Mexico, the United States, Canada, Peru, and the United Kingdom) have already been signed by the 11 countries that start the agenda, and agreements are being negotiated with three countries (Japan, France, and Germany).
The ratification of the Bilateral Investment Treaty between Colombia and China is part of a coherent and generalized trend, since at the global level and in Colombia, the importance of this type of agreements has been repeatedly seen. to attract the direct investment flows of the capital-exporting countries to developing countries, in order to take advantage of their positive impact on investment-recipient countries.
In addition to responding to the global trend in investment promotion, this Convention is a way for Colombia to compete competitively against other developing countries that already offer a large number of investments. investment treaties.
2. IMPORTANCE OF THE AGREEMENT FOR COLOMBIA
Why is foreign investment important for Colombia?
According to the 2008 Global Investment Report[5], developing countries received the largest foreign direct investment (FDI) inflows ever achieved ($500 billion), which represents an increase of 21% compared to 2006. The least developed countries (LDCs) attracted 13 billion US dollars in FDI in 2007, which is also a record high. At the same time, developing countries became increasingly important as sources of FDI, as their investments reached a new high of 25 billion dollars, mainly thanks to the expansion of transnational companies. Overseas Asian countries.
For the year 2009, according to the 2009 Global Investment Report[6], FDI flows would fall from $500 billion to $400 billion due to the international financial crisis. However, despite the sharp decline in levels for developing countries, they remain high.
One of the main concerns of developing countries such as Colombia is the ability to attract foreign investment, for this reason, great efforts and resources focus on achieving substantial improvements in issues such as security and security. physical, legal certainty and investment climate as factors that stimulate the attraction of foreign investment. In recent years Colombia has managed to consolidate itself as one of the most attractive countries as destinations for foreign investment at Latin American and global levels.
In this sense, according to the 2009 World Bank report Doing Bus, in 2008 Colombia ranked within the leading countries in reforms that facilitate business to world level and first in Latin America. The ease of starting businesses is one of the factors that investors take into account in the decision to initiate an investment. In this same report for the year 2010, Colombia was 16 places in the ranking of countries where it is easier to create a business and start a business, moving from position 53 in 2007 to 37 in 2010 among 181 countries, exceeding in Latin America to long-tradition countries in attracting foreign investment such as Chile (position 49) and followed by Mexico (51) and Peru (56). As the effort of the National Government is clear, it is reflected internationally since in a matter of three years 2007-2010 Colombia has risen 42 positions in the list of countries where it is easier to do business of the World Bank-report Doing Business.
Foreign Direct Investment (FDI) encourages domestic economic development by complementing local sources of finance. Evidence of this in our midst is gathered in the words of the Honorable Constitutional Court " In the judgment of this Corporation, the demands of the contemporary world and the interdependence of the States, the achievement of greater flows of foreign investment They will complement national savings, finance major infrastructure projects, and support industrial expansion, is an indispensable need to achieve adequate levels of economic development and social welfare. " (Statement C-150/09. Case No LAT-328. Constitutional revision of Law 1198 of 2008 (June 6) for which the "Convention between the Republic of Colombia and the Swiss Confederation on the Promotion and Reciprocal Protection of Investments and its Protocol" is approved. M. P. MAURICIO GONZÁLEZ (VO).
In the same sentence, the Minister of Commerce Industry and Tourism said: " Foreign investment represents important benefits for Colombia in the face of the need to encourage investment that goes beyond the internal. In addition, it helps to counteract the low level of private savings; to increase the tax base for tax purposes and to have financing resources other than traditional ones such as oil, whose production falls. "
The importance of foreign investment for Colombia is reflected in key elements for the development of the country such as the generation of jobs, the transfer of technology, the contribution to the growth of the economy among others. In order not to go further, a study by the Foundation for Education and Development (Fedesarrollo) called "Impact of Foreign Investment in Colombia"[7] sheds significant conclusions on the importance of foreign investment. for our country, which are summarized below:
-- "Foreign direct investment in Colombia has contributed at least one percentage point of annual GDP growth on average over the past five years."
Thanks to the policy of the National Government in material of attraction to foreign investment, in 2008 Colombia reported a record number of FDI reception. For 2008, the total amount of foreign investment accumulated in the country reached US$ 10.564 million, representing an increase of 16.7% from the accumulated in 2007[8]. This is the largest amount of FDI in economic history. of the country.
As a percentage, this means that since 2002, the growing foreign investment has contributed more than 1% to the annual national GDP; a trend that has been progressive in time to reach the extraordinary proportion of 4.4%. of Colombia's GDP in 2008.
In Latin America and the Caribbean, the increase was 13% in 2008, taking into account that for the same year the fall in FDI in the world was 14%, and the preliminary figures for 2009 of 96 countries showed a drop in 44% compared to the year immediately before. For this reason, competition for the attraction of FDI among developing countries becomes one of the main concerns of the post-crisis.
-- "Foreign investment plays a central role in mitigating the effects of the international crisis on the Colombian economy."
The above results are even more relevant at the juncture of the global financial crisis, where the availability of resources for foreign investment is declining and the trend is usually the disinvestment. The fact that foreign investment had increased substantially in 2008 and that the 2009 reduction was below the global level clearly shows the confidence that foreign investors continue to place in our country. Despite the current adversities faced by the world's and the region's markets.
Additionally, FDI booms have contributed favorably to the financing of the current deficit in the economy, constituting an important source of accumulation of international reserves, while contributing to the strengthening the Colombian peso, giving greater liquidity and external solvency to the economy.
Finally, it is worth mentioning that several of the infrastructure projects that the government intends to implement as part of its countercyclical plan, have a foreign investment contribution of foreign origin. The linking of foreign investors is vital for the development of an energy, transport and modern communications infrastructure that will align production costs for domestic consumption and for export, as required. in Colombia in the 21st century.
-- "Companies with foreign direct investment use more skilled labor."
Our country has become a regional hub and an export platform for some foreign companies in recent years. Multinational companies (EMN) have carried out rationalization processes and have centralized their administrative, production, marketing and service (accounting, advertising, etc.) headquarters in our country.
The performance of EMNs in Colombia has defined some characteristics of the recipient companies, among which the highest utilization of skilled labor is highlighted.
Given the high degree of sophistication of EMNs, generally involved in high-complexity industrial or commercial sectors, it is often the case that they require specialized workers, with sufficient technical expertise. to meet the requirements of the economic activity developed.
-- "Companies with foreign direct investment pay higher wages."
The business survey carried out by Fedesarrollo showed that, compared to Colombian companies belonging to the same sector, multinational companies usually pay higher wages and better employment benefits for their employees. The reason why EMNs tend to be more efficient and productive, which would allow them to invest larger sums in human capital.
-- "Companies with foreign direct investment develop more research and development."
The contribution of FDI has resulted in increased industrialization and increased investments in public services (electrical energy, telecommunications and infrastructure), in mining (coal and ferro nickel), in hydrocarbon and sector sectors. financial.
The incidence of FDI in these sectors of high demand for capital goods has a direct impact on the country's renovation and technological upgrading. In the case of Colombia, the recent evolution of international markets with the presence of foreign investment generates great opportunities for entrepreneurs in obtaining an integrated system of production, distribution and marketing. of a globalized market for goods and services[9].
-- "Companies with foreign direct investment are more deeply rooted in the culture of social responsibility."
Corporate Social Responsibility is a concept that originated in Anglo-Saxon business models. Little by little and on account of globalization, corporate social responsibility has been spreading around the world. Colombia is no exception. The arrival of EMN brings with it the implementation of models of good corporate governance, based on actions of social impact and on the involvement with the community of companies.
To the extent that corporate responsibility can change consumer behavior (who can show predilection for products from socially responsible companies), a healthy competition is created that gives added value to the companies that practice it. Thus, the corporate responsibility practiced by the EMN can have the multiplier effect of being imitated by the national companies that want to compete with the multinationals.
And how is this reflected in the flow of investments between Colombia-China?
Between 2000 and 2009, Colombia received US$ 13.9 million from China, which for the last 5 years was mainly destined for the transport sectors, with 80.6% of the total investment flow; followed by the trade sector, with the 13.9% of total FDI in the period 2005-2009; industry, with a share of 2.3%; and mining with 1.9%. The remaining 1.4% is in other sectors.
Within the Asian countries that invest most in Colombia between 2000 and 2009, China ranks fourth with a 7.3% share within the total figure for this region that was US$ 190.7 million.
in 2009, China's investment in Colombia increased by 221.3 percent, from less than 300,000 dollars to 600,000 dollars. Of the FDI that comes from Asia to Colombia during 2009, it is found that 6.4% corresponds to China. During 2009, FDI in Colombia from China was exclusively directed to the industrial sector, capturing 100% of total flow.
Now, enough has been shown about the benefits that foreign investment is reporting to Colombia as a capital recipient country, and it has been stated that increasing foreign direct investment is the primary interest of our country in signing up to the the Agreement. However, it should be noted that due to the bilateral nature of the Convention between the Republic of Colombia and the People's Republic of China on the Promotion and Reciprocal Protection of Investments, Colombian investors in China will also enjoy the benefits and standards of protection agreed between the two countries.
It should be said about Chinese investors in Colombia and Colombians in China, that in addition to the agreement granting them legal certainty for the treatment of their investments, the treatment offered by the recipient country at no time will be less favourable than that granted to their own nationals.
For the arguments set forth in this document, it is beneficial for our country to ratify the Agreement on the Promotion and Reciprocal Protection of Investments to the extent that the economic ties between the two nations are narrowing. China is creating a favorable atmosphere for Colombian businessmen to seek new market niches in China, and a climate of security and confidence is taking hold for investments coming from China. The current situation provides an important opportunity for Colombia, through this Agreement, to promote the inflow of investment flows and to consolidate it as a mechanism for promoting the economy.
Additionally, it should be noted that the ratification of this Agreement puts Colombia at the height of other states in the region that compete directly with our country for attracting investments, such as Chile, Argentina, Bolivia, Costa Rica, Cuba, Ecuador and Peru-among others-who currently have APPRI [10]subscribed to Chinaadditional reason to consider the ratification of this Agreement as an element to keep Colombia within the competition to attract investment China.
Given the above, it is evident that this Agreement, and the other instruments and actions of integration, will be a contribution to the dynamism and strengthening of the relations between Colombia and China. Your content will then be analyzed.
3. THE AGREEMENT TO PROMOTE AND PROTECT INVESTMENTS BETWEEN COLOMBIA AND CHINA
The recent developments, both in the world and in the Hemisphere, generate important challenges in the field of law, in the face of which the design of instruments such as the Agreements on the Promotion and Reciprocal Protection of the Investments that, while maintaining their compatibility with internal regulations, encourage the attraction of capital by guaranteeing the protection of foreign investment according to international standards.
The main objective sought by the states in negotiating a treaty on the promotion and mutual protection of investments (APPRI or BIT) is to establish a fair and transparent legal framework that promotes investment through the creation of an environment favourable to the investor, its investment and related flows, without creating obstacles to investments from the other party of the treaty. In other words, it seeks to establish clear rules of play for investors from both sides, which provide protection and mutual security in the treatment of investments in the spirit of generating incentives for attracting investment. foreign.
To achieve this objective, in this instrument, commitments related to the treatment that will be granted to the investor (national treatment and most favored nation treatment), the standards of responsibility assumed by the States with (a) to the investors of the other State (minimum level of treatment), the establishment of rules for the compensation of the investor in the event of expropriation, and the transfer of capital linked to the investment. In addition, clear dispute settlement procedures are established through these treaties.
It is important to note that for a correct understanding and application of the agreement it is necessary to define clearly who are the subjects addressed to this (definition of investor) and what type of economic activities or transactions will be covered by the same (investment definition). Other necessary elements must also be defined to give greater clarity and effectiveness to the agreement, such as, the rules for its entry into force, termination and the conditions of application in time and space.
to negotiate this Agreement, the Colombian negotiators took into account the legal, economic and political peculiarities of the country, as well as the previous statements by several members of the Congress of the Republic and the Honorable Constitutional Court in relation to Agreements with similar characteristics to the present.
This is how clauses that are compatible with our Constitution were reiterated and the Honorable Constitutional Court has referred to when it has had the opportunity to review the laws approving other treaties of this very nature. In order to respect the provisions of Article 100 of our Constitution, the Treaty provides that nothing in the Treaty is intended to be interpreted as preventing a Party from adopting or maintaining measures intended to preserve order. public. Likewise, for the treaty to be compatible with article 336 of the Constitution it was agreed that the Parties may establish, in accordance with the law and for reasons of public utility or interest social, monopolies that deprive an investor of developing an economic activity. In the same way, for the treaty to be consistent with article 58 of the Constitution it was agreed that only for reasons of public utility or social interest and according to the law can to expropriate investments provided that the payment of compensation is paid. Finally, to respect the autonomy of the Bank of the Republic, it was agreed that in circumstances of macroeconomic imbalances or problems or threats to the balance of payments, the State may temporarily restrict transfers. who develop the acquired commitments are described below:
In the Preamble, it is established that the Agreement aims to intensify economic cooperation for the mutual benefit of both countries, creating favorable conditions for investments made by investors and the generation of business initiatives by investors from both countries.
Item 1o. Definitions.
The definition of "investor", "investment", "income" and "territory" is included here. This article incorporates into the Agreement an investment definition that includes acts that are of an investment character (such as acquisition of property, shares, patent registration, etc.). In addition, the minimum characteristics of an investment are considered: capital contribution, profit expectation and risk taking.
Those operations that should not be understood as protected under the agreement are excluded from this definition. These are the operations of public debt or external commercial credit (such as a credit requested by the State to a private bank), the contracts clearly commercial with a state entity (such as the supply of stationery to a company ). Finally, it is established that the agreement will not apply to those investors who, being natural persons, have dual nationality.
Article 2o. Promotion, Admission, and Protection
The Agreement preserves the two countries ' right to admit investments by nationals or companies of the other Party on their territory, in accordance with their domestic laws.
In the same way it is established that each Party must give the investors of the other party a minimum level of treatment that includes a "fair and equitable" treatment and "full protection and security" to its investments. This treatment must be granted by China or Colombia in accordance with an international minimum standard, keeping equivalence with that treatment given to the national investors themselves.
Additionally, the Agreement requires the Parties to protect and not impede the investments of the other Party's investors, subject to their domestic laws and regulations.
Article 3o. Deal with investment.
The so-called "national treatment" is established, whereby the Parties undertake to treat investors ' investments of the other Party as if they were made by nationals of the territory itself, prohibiting any type of discrimination.
The "Most Favoured Nation" treatment is established by which one Party undertakes to treat the other's investment in the same way as it deals with the investments of a third country, which eventually has additional benefits to those granted by the Agreement.
These more favorable dealings, however, do not apply in the matter of dispute settlement mechanisms, nor, in the case of more favored nation treatment, to more favorable agreements given under any area of free trade, unions customs, common markets or economic unions.
Also, these two deals involve a comparison between investors and their investments, either with domestic investors and their investments in the case of domestic treatment, or with foreign investors from a third country and their investments, in similar circumstances.
Article 4o. Expropriation and Compensation
This article establishes one of the most important provisions of this Agreement, as it provides that in the event of an expropriation, the State must provide prompt, adequate and effective compensation. This provision has clear constitutional support, since Article 58 of our Political Charter, as interpreted by the Constitutional Court, states that the State is "responsible" and must compensate for the expropriations it makes.
In addition, it is made explicit that the reasons for "public utility and social interest" in our Political Constitution are valid reasons for making the expropriations under the light of this Article, and it is also recognized that the State can avail itself of the reasons for public utility and social interest to establish state monopolies.
Finally, it is important to note that the article excludes from its application the issuance of compulsory licenses within the framework of what was agreed at the WTO[11].
Article 5o. Compensation for damages or losses
This article states that when investors suffer losses due to war or other armed conflict they will receive compensation and compensation in respect of restitution, compensation and compensation, the same treatment granted by the State in which the damage was caused to their families. investors or investors from a third State.
Article 6o.
This article guarantees the transfer of funds related to investments in free currency convertibility. The article provides for some restrictions on this principle relating to the protection of third parties ' rights and the enforcement of administrative or judicial arrangements. Similarly, it is established that a Contracting Party imposes currency restrictions in accordance with its applicable laws and regulations.
Article 7o. Subrogation
With this provision, it is sought to prevent an investor who has already been compensated by an insurer against non-commercial risks, for example, political risks, to sue the State seeking compensation. Likewise, it seeks that the contracting party or the agency designated by it, has, by virtue of the subrogation, the ability to exercise the rights, to demand the claims of the investor and to assume the obligations related to the investment in the same measure that the investor.
Article 8o. Resolving disputes between Contracting Parties.
In the event of a conflict between the two Contracting States, that is, the Republic of Colombia and the People's Republic of China, concerning the interpretation or application of the Convention, it will be resolved, as far as possible, through diplomatic negotiations. If it cannot be resolved within six months, the investor may submit it to a court of arbitration appointed by common agreement by the parties.
Article 9o. Resolving disputes between a Party and an investor from the other Party
This article establishes the procedure to resolve disputes arising between any of the States and investors of the other State.
The Agreement provides, once the consultation and negotiation phases have been exhausted, that an investor may subject their differences to local courts or international arbitration under the Convention of the International Center for Settlement of Investment (ICSID) or other ad hoc mechanism under the rules of the United Nations Conference on International Trade Law (UNCITRAL) unless it is agreed differently by the parties. For these purposes, both Colombia and China, as members of the ICSID, agreed by the Treaty to grant their final, binding and unreserved consent so that any dispute between a Party and an investor from the other Party may be submitted to the ICSID arbitration procedure. They also agreed to submit the dispute between a Party and an investor from the other Party to any other arbitration institution or under other arbitration rules that the Parties agree to.
Additionally the article provides that once the investor makes the selection of the forum, this will be final.
Among its provisions is worth noting the possibility of settling disputes through friendly agreements, the maximum period of 3 years to submit a dispute under this article and the final and binding nature of the decision taken. by the court that knew the controversy. It also requires the exhaustion of the gubbernative path-dealing with administrative acts-before submitting the complaint to local courts or to arbitration.
Regarding the possibility that an investor would go to international arbitration, and in particular the ICSID, was declared to be exequable by the Honorable Constitutional Court by its judgment C-442/96, as well as in other related Sentences with the approval of Agreements on the Promotion and Reciprocal Protection of Investments, within which it is worth noting the one signed with Great Britain (C-358/96), Cuba (C-379/96), Peru (C-008/97) and Spain (C-494/98), among others. It is then understood that going to international arbitration tribunals for dispute resolution is a valid and constitutionally viable mechanism.
Article 10. Other
This article provides that any agreement or regulation that is more favorable to the investor will prevail over this Agreement.
Article 11.
As for the scope of the Agreement, the standards described above will apply to investments made at any time (i.e. before and after the entry into force of the APPRI). This seeks to encourage the reinvestment of those investors who made investments in the country prior to the Agreement. However, the Agreement shall not apply to disputes which have arisen prior to its validity.
Of course, the Agreement will not apply to investments made with capital or assets from illicit activities.
Article 12.
This article expressly clarifies the governmental authority to adopt measures for reasons of public order, provided that they are applied in a way that is necessary, proportional, transparent and justified, respecting the principle of equality. contemplated by the constitutional order.
Article 13. Prudential measures in the financial sector
Another exception is established in the sense that the State may adopt measures related to financial services, provided that such measures are based on prudential reasons, to maintain the soundness and integrity of the institutions. Country financial.
Article 14. Tax
This article stipulates that the Treaty shall not apply in tax matters, with the exception of Article 4 (Expropriation and Compensation) and Article 9o (Dispute Resolution between State and Investors).
Article 15. Queries
This article provides that the parties may consult with each other on any matter related to the application or interpretation of the treaty.
Article 16. Final Provisions
It is noted that the treaty will remain in force for an initial period of ten years and that, after that period, it will continue in effect indefinitely unless it is denounced by any of the Parties. In addition, it is established that for investments made prior to the date of denunciation, the Agreement will have an additional period of validity of ten years from this date.
4. OPINION
The Agreement that we are now considering is an important tool that establishes a favorable framework for reciprocal international investments between Colombia and China. It also serves as a mechanism for promoting China's investments in Colombia. It contributes to the generation of advantages inherent in the entry of foreign capital such as technological innovation, the transfer of knowledge, the creation of employment and the economic and social development of the country, achieving this consolidate the process of modernization of the Colombian economy and the proper insertion of the country into the global market.
Colombia is offering foreign investors, with the ratification of this Agreement, a clear message of acceptance of international standards for the protection of investments.
Congressmen, Colombia has a strategic geographic position on the continent, it is a country favored by nature and we have an exceptional human resource. However, isolated factors of physical and legal insecurity have turned our country's foreign investment away. For this reason, progress must be made in a joint effort so that existing foreign investment will be consolidated and promoted to future investments.
El Comercio] Taking into account the reasons outlined above, the National Government, through the Ministers of Foreign Affairs and Trade, Industry and Tourism, respectfully requests the Honorable Congress of the Republic to approve the bill. "for which the 'Bilateral Agreement for the Promotion and Protection of Investments between the Government of Colombia and the Government of the People's Republic of China', signed in Lima, Peru, is approved on 22 November 2008."
Of the honorable Senators and Representatives,
The Foreign Minister,
Jaime Bermudez Merizalde.
The Minister of Commerce, Industry and Tourism,
Luis Guillermo Plata Paez.
1998 424 LAW
(January 13)
by which follow the international conventions signed by Colombia.
The Congress of Colombia
DECRETA:
Article 1o. The National Government through the Foreign Ministry will submit annually to the Senate and Senate Foreign Relations Committees, and within the first thirty days of the legislative period, which begins every 20 years. July, a detailed report on how the existing International Conventions signed by Colombia with other States are being complied with and developed.
Article 2o. Each dependency of the National Government responsible for implementing the International Treaties of its competence and requiring reciprocity in them, will transfer the relevant information to the Ministry of Foreign Affairs and the Ministry of Foreign Affairs. Second.
Article 3o. The full text of this law shall be incorporated as an annex to any and all International Conventions that the Ministry of Foreign Affairs presents to the Congress.
Article 4o. This law governs from its enactment.
The President of the honorable Senate of the Republic.
AMILKAR ACOSTA MEDINA.
The Secretary General of the honorable Senate of the Republic,
PEDRO PUMAREJO VEGA.
The President of the honorable House of Representatives,
CARLOS SQUIRLA BALLESTEROS.
The Secretary General of the honorable House of Representatives,
DIEGO VIVAS TAFUR.
COLOMBIA-NATIONAL GOVERNMENT
Publish and execute.
Dada en Santa Fe de Bogota, D. C., on January 13, 1998.
ERNESTO SAMPER PIZANO
The Foreign Minister,
MARIA EMMA MEJIA VELEZ.
THE UNDERSIGNED COORDINATOR OF THE INTERNAL WORKING GROUP OF TREATIES OF THE DIRECTORATE OF INTERNATIONAL LEGAL AFFAIRS OF THE MINISTRY OF FOREIGN RELATIONS OF THE REPUBLIC OF COLOMBIA
CERTIFIES:
That the reproduction of the text above is a faithful and complete copy of the Spanish language version of the " Bilateral Agreement for the Promotion and Protection of Investments between the Government of the Republic of Colombia and the Government of the People's Republic of China "signed in Lima, Peru, the twenty-two (22) November of two thousand eight (2008), document that rests in the archives of the Internal Working Group Treaties of the Directorate of International Legal Affairs of this Ministry.
Dada en Bogotá, D. C., at nine (30) days of the month of June of two thousand eleven (2011).
The Coordinator of the Internal Treaty Working Group, Directorate of International Legal Affairs,
ALEJANDRA VALENCIA GARTNER.
EXECUTIVE BRANCH OF PUBLIC POWER
PRESIDENCY OF THE REPUBLIC
Bogotá, D. C., March 24, 2009
Authorized. Submit to consideration by the honorable Congress of the Republic for the constitutional effects.
(Fdo.) ALVARO URIBE VELEZ
The Foreign Minister
(Fdo.) Jaime Bermudez Merizalde
DECRETA:
Article 1o. Approve the Bilateral Agreement for the Promotion and Protection of Investments between the Government of the Republic of Colombia and the Government of the People's Republic of China,in Lima, Peru, on 22 November 2008.
Article 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the "Bilateral Agreement for the Promotion and Protection of Investments between the Government of the Republic of Colombia and the Government of the People's Republic of China", signed in Lima, Peru, on November 22, 2008, which is approved by article 1 of this law, will force 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 and the Minister of Commerce, Industry and Tourism.
The Foreign Minister.
Jaime Bermudez Merizalde.
The Minister of Commerce, Industry and Tourism,
Luis Guillermo Plata Paez.
EXECUTIVE BRANCH OF PUBLIC POWER
PRESIDENCY OF THE REPUBLIC
Bogotá, D. C., March 24, 2009
Authorized. Submit to consideration by the honorable Congress of the Republic for the constitutional effects.
(Fdo.) ALVARO URIBE VELEZ
The Foreign Minister
(Fdo.) Jaime Bermudez Merizalde
DECRETA:
Article 1o. Approve the Bilateral Agreement for the Promotion and Protection of Investments between the Government of the Republic of Colombia and the Government of the People's Republic of China,in Lima, Peru, on 22 November 2008.
Article 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the "Bilateral Agreement for the Promotion and Protection of Investments between the Government of the Republic of Colombia and the Government of the People's Republic of China", signed in Lima, Peru, on November 22, 2008, which is approved by article 1 of this law, will force 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,
ARMANDO BENEDETTI VILLANEDA.
The Secretary General of the honorable Senate of the Republic,
EMILIO RAMON OTERO DAJUD.
The President of the honorable House of Representatives,
CARLOS ALBERTO ZULUAGA DIAZ.
The Secretary General of the honorable House of Representatives,
JESUS ALFONSO RODRIGUEZ CAMARGO.
COLOMBIA-NATIONAL GOVERNMENT
Communicate and comply.
Execute, upon review of the Constitutional Court, pursuant to article 241-10 of the Political Constitution.
Dada in Bogotá, D. C., on June 29, 2011.
JUAN MANUEL SANTOS CALDERÓN
The Foreign Minister,
MARIA ANGELA HOLGUIN HANG.
The Minister of Commerce, Industry and Tourism,
SERGIO DIAZGRANADOS GUIDA.
* * *
1 ... Mundial de Inversiones, UNCTAD 2009.
2 National Development Plan. 2006-2010. "Community State: Development for All". Presidency of the Republic. National Department of Planning, pp. 254 and 262.
3 Ibid., page 258.
4 Salaccuse, Jeswald W.; Sullivan, Nicholas P. "Do BITs really work?: an evaluation of Bilateral Investment Treaties and their grand bargain", at Harvard International Law Journal; p. 105; Harvard University Press, Winter 2005. See also, UNCTAD, "Bilateral Investment Treaties in the mid-1990s", UN Doc.; UNCTAD/ITE/IIT/IIA/7, page 110, (1998.
5 UNCTAD, "World Report on Investment 2008: Transnational companies and the infrastructure challenge". 2008.
6 UNCTAD, "World Investment Report 2009: Global Trends, Died Flows in Decline". 2009.
7 Fedesarrollo. "Impact of foreign investment in Colombia." February 6, 2009.
8 Source: Bank of the Republic. For the year 2008, the foreign investment in the oil sector was US$ 3.571 million, with an increase of 7.1% compared to the previous year. A significant increase was observed in mining industries (including coal), with $2.116 billion, representing a growth of 92.3% over the previous year. Trade, restaurants and the hotel industry reached US$ 1,029 million, with an increase of 28.3%; followed by transport, bodegage and communications, with US$ 746 million, which united presented an 80% growth. In the years 2006 and 2007, FDI in Colombia had been in its entirety of US$ 6,656 and US$ 9.049 million, respectively.
9 The latest trends indicate that foreign investment is undergoing a shift to the services market. UNCTAD, "World Report on Investment 2004: The Turn to Services." New York and Geneva. 2004.
10 Source. Unctad.org, Bilateral Investment Treaties Online, Country: China.
11 The exclusivity inherent in most intellectual property rights gives its holder the legal power to prevent third parties from using, producing or marketing the invention, sign or job protected. That power is not absolute. Article 30 of the TRIPS allows for derogations, which are regulated by Article 31 of the same agreement and include compulsory licences. The granting and effective exploitation of a compulsory license may limit the economic benefits that the patent holder can obtain. It is therefore necessary to express that the granting of a compulsory licence cannot be the subject of claims for expropriation.
