América Móvil S.A.B. de C.V. v. Republic of Colombia
ICSID · Investment (ICSID and treaty) · Colombia · 7 May 2021
Why it matters
This award is significant for its detailed analysis of the relationship between domestic law and international investment law, particularly regarding the existence of property rights. The Tribunal held that an investor cannot claim expropriation of a right that never existed under domestic law, even if the investor had legitimate expectations. It also clarified the deference owed to domestic court decisions on questions of national law, setting a precedent for similar cases where investors challenge regulatory changes.
Summary
América Móvil, a Mexican company, held shares in Comcel, a Colombian mobile phone operator. In 1994, Comcel obtained a 20-year concession to provide mobile services, with a clause requiring that at the end of the concession, certain assets (excluding radio frequencies) would revert to the State. In 2013, Colombia's Constitutional Court ruled that the reversion clause was valid and that the assets must revert. América Móvil argued that under Colombian law, the assets should not revert because the concession had been extended and the law had changed. It claimed that the reversion amounted to an unlawful expropriation under the Mexico-Colombia Free Trade Agreement. The Tribunal first rejected Colombia's jurisdictional objections, finding that the dispute was not purely contractual and that the investor had standing. On the merits, the Tribunal (by majority) examined whether the alleged 'right to non-reversion' existed under Colombian law. It relied on decisions of Colombian courts, including the Constitutional Court and domestic arbitral tribunals, which had consistently held that the reversion clause was enforceable and that no right to non-reversion existed. The Tribunal found no reason to depart from these domestic rulings. It also rejected América Móvil's argument that legitimate expectations under international law could create a property right where none existed under domestic law. Consequently, the majority held that there was no expropriation because there was no protected right to expropriate. The Tribunal ordered América Móvil to pay half of Colombia's legal costs. One arbitrator dissented.
The detail
Parties: América Móvil S.A.B. de C.V. v. Republic of Colombia
Case number: ICSID Case No. ARB(AF)/16/5
Outcome: The Tribunal, by majority, dismissed América Móvil's expropriation claim and ordered América Móvil to pay 50% of Colombia's costs plus interest.
Applicable law: Free Trade Agreement between Mexico and Colombia (1994), Colombian law (including Ley 37, Ley 422, Ley 1341), ICSID Additional Facility Rules
Issues in play: The case involved a conflict between the investor's claimed right to non-reversion of assets under Colombian law and the State's sovereign right to regulate telecommunications. The Tribunal had to determine whether the alleged right existed under domestic law and whether its elimination could constitute expropriation under international law.
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