Astrida Benita Carrizosa v. Republic of Colombia
ICSID · Investment (ICSID and treaty) · Colombia · 19 Apr 2021
Why it matters
This award clarifies the strict application of temporal limitations in investment treaty arbitration, particularly the three-year limitation under the US-Colombia TPA and the five-year limit under the Colombia-Switzerland BIT. It also addresses the use of MFN clauses to import more favorable dispute resolution provisions, ultimately finding that the MFN clause in the TPA's financial services chapter did not extend to jurisdictional matters. The case underscores the importance of filing claims within prescribed time limits.
Summary
Astrida Benita Carrizosa, a US national, owned indirect shareholding interests in Granahorrar, a Colombian financial institution. Following Colombia's 1997-2001 economic crisis, the government took fiscal and administrative measures that allegedly caused the loss of her shares. She initiated ICSID arbitration under the US-Colombia Trade Promotion Agreement (TPA) and the Colombia-Switzerland BIT, claiming violations of fair and equitable treatment, expropriation, and other protections. Colombia objected to jurisdiction on several grounds, including that the dispute fell outside the TPA's temporal scope (the TPA entered into force in 2012, while most measures occurred earlier) and that the claim was time-barred under Article 10.18.1 TPA (three years from knowledge of breach) and Article 11(5) of the Colombia-Switzerland BIT (five years). The Tribunal first held that the TPA did not apply retroactively to measures taken before its entry into force, and that the alleged continuing effects did not bring the dispute within its temporal scope. Second, the Tribunal found that even if the MFN clause in the TPA's financial services chapter could import the Colombia-Switzerland BIT's consent to arbitrate, the claim was time-barred under that BIT's five-year limitation period, as Carrizosa knew of the events giving rise to the dispute by 2011 at the latest. Consequently, the Tribunal declined jurisdiction and dismissed all claims. It also ordered Carrizosa to bear the arbitration costs and 50% of Colombia's legal fees.
The detail
Parties: Astrida Benita Carrizosa v. Republic of Colombia
Case number: ICSID Case No. ARB/18/5
Outcome: The Tribunal upheld Colombia's jurisdictional objections and dismissed all claims for lack of jurisdiction. Claimant ordered to pay USD 294,448.06 of arbitration costs and USD 760,458 of Respondent's legal fees.
Applicable law: US-Colombia Trade Promotion Agreement (TPA), Colombia-Switzerland BIT, ICSID Convention
Issues in play: The temporal scope of the TPA (whether measures predating its entry into force were covered) and the limitation period under Article 10.18.1 TPA (three years from knowledge of breach) and Article 11(5) Colombia-Switzerland BIT (five years) were at issue.
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