International Centre for Settlement of Investment
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INTERN ATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES ECO ORO MINERALS CORP. Claimant -v- THE REPUBLIC OF COLOMBIA Respondent ______________________________________ REQUEST FOR ARBITRATION 8 DECEMBER 2016 ______________________________________ 700 13th Street, NW 10th Floor Washington, DC 20005-3960 USA TABLE OF CONTENTS I. INTRODUCTION.....................................................................................................1 II. THE FACTS RELEVANT TO THE DISPUTE ..................................................5 A. ECO ORO ’S INVESTMENTS MADE IN RELIANCE ON COLOMBIA ’S COMMITMENTS .....................................................................................................5 B. COLOMBIA ’S MEASURES ................................................................................... 11 1. Legal Framework 1994-2014 ............................................................................ 11 2. Resolution 2090 of December 2014 and Law 1753 of 2015 .......................... 16 3. Constitutional Court decision............................................................................ 21 4. Effects of the Constitutional Court decision .................................................... 26 5. Impact on Eco Oro’s investments ..................................................................... 30 C. NOTIFICATION OF THE DISPUTE ...................................................................... 31 III. COLOMBIA’S VIOLATIONS OF THE TREATY ......................................... 31 A. COLOMBIA FAILED TO TREAT ECO ORO ’S INVESTMENTS IN ACCORDANCE WITH THE CUSTOMARY INTERNATIONAL LAW MINIMUM STANDARD , INCLUDING FAIR AND EQUITABLE TREATMENT AND FULL PROTECTION AND SECURITY ............................................................................................................ 32 B. COLOMBIA EXPROPRIATED ECO ORO ’S INVESTMENTS WITHOUT PROMPT , ADEQUATE AND EFFECTIVE COMPENSATION .................................................. 33 IV. ECO ORO’S INVESTMENTS ARE PROTECTED UNDER THE TREATY.................................................................................................................. 34 A. ECO ORO IS A PROTECTED INVESTOR UNDER THE TREATY .......................... 34 B. ECO ORO ’S INVESTMENTS ARE PROTECTED UNDER THE TREATY ............... 35 V. THE PARTIES’ CONSENT TO ARBITRATION UNDER THE TREATY AND THE ICSID CONVENTION ................................................... 36 A. THE REQUIREMENTS UNDER THE ICSID CONVENTION HAVE BEEN FULFILLED .......................................................................................................... 36 B. THE REQUIREMENTS TO ACCESS ARBITRATION UNDER THE TREATY HAVE BEEN FULFILLED ................................................................................................ 38 VI. CONSTITUTION OF THE ARBITRAL TRIBUNAL, PLACE AND LANGUAGE OF THE ARBITRATION AND CONFIDENTIALITY OF THIS REQUEST ............................................................................................. 42 VII. THE PARTIES TO THE DISPUTE ................................................................... 43 VIII. REQUEST FOR RELIEF..................................................................................... 44 I. INTRODUCTION 1. Eco Oro Minerals Corp. ( Eco Oro ), a corporation constituted under the laws of Canada, 1 hereby requests the institution of arbitration proceedings against the Republic of Colombia ( Colombia or the Government ) in accordance with Article 36 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention ), to which Colombia and Canada are parties. 2. This Request for Arbitration (the Request ) is submitted pursuant to Article 819 of the Free Trade Agreement between Canada and Colombia (the Treaty ), signed on 21 November 2008 and which entered into force on 15 August 2011. 2 3. Eco Oro has notified Colombia of its intent to submit the present claim to arbitration in its letter dated 7 March 2016 (the Notice of Intent ). 3 It has taken all the necessary internal actions to authorize the submission of this Request to ICSID and has duly authorized the undersigned to institute and pursue arbitration proceedings on its behalf against Colombia pursuant to the ICSID Convention and the Treaty. 4 Furthermore, Eco Oro has waived its right to initiate or continue proceedings with respect to the impugned measures before any administrative tribunal or court in Colombia in accordance with Article 821 of the Treaty. 5 1 See Articles of Incorporation of Eco Oro, 5 May 2005, C-10 ; Certificate of Change of Name of Eco Oro issued by the Registrar of Companies of British Columbia, Canada, 16 August 2011, C-23 ; Certificate of good standing of Eco Oro issued by the Registrar of Companies of British Columbia, Canada, 26 February 2016, C-45 ; Notice of Articles of Eco Oro issued by the Registrar of Companies of British Columbia, Canada, 13 October 2016, C-56 . All exhibits referred to herein consist of true copies of original documents. Where exhibits consist of excerpts of documents, these excerpts constitute true and complete excerpts of the relevant parts of said documents. 2 Free Trade Agreement between Canada and the Republic of Colombia, signed on 21 November 2008 (the Treaty ), C–22 . The Treaty entered into force on 15 August 2011. See Circular No 024 of the Directorate of Foreign Commerce of the Ministry of Commerce concerning the entry into force of the Treaty, 3 August 2011, C-21 . 3 Notice of intent to submit the claim to arbitration, 7 March 2016, C-48 . 4 Power of Attorney granted by Eco Oro to attorneys of Freshfields Bruckhaus Deringer US LLP, 7 December 2016, C-59 ; Eco Oro Board Resolution, 7 December 2016, C-60 . 5 Letter from Eco Oro to the Secretary General of ICSID, 7 December 2016, C-58 . 1 4. Eco Oro brings this claim in relation to Colombia’s measures that have destroyed the value of Eco Oro’s investments in the Colombian mining sector, and have deprived Eco Oro of its rights under its principal mining title, Concession Contract 3452. This concession comprises the Angostura gold and silver deposit in the department of Santander in the east of the country, one of the largest in Colombia. 5. Eco Oro, then known as Greystar Resources Limited, was one of the first foreign mining companies to invest in the Colombian gold mining sector. It first invested in Permit 3452 – which was later converted into Concession Contract 3452 – in 1994. 6. Since then, Eco Oro has invested over US$250 million to develop the Angostura mining project by completing more than 360,000 meters of drilling and approximately 3,000 meters of underground development. As a result of these investments, Eco Oro declared resources for the Angostura deposit where none existed before, and it more than doubled those resources between 1999 and 2015, declaring approximately 3.25 million ounces of gold and 13.5 million ounces of silver (comprising measured, indicated and inferred resources). 6 7. These investments were made in reliance upon the specific commitments made by Colombia under Permit 3452 and subsequently Concession Contract 3452, including: (a) the exclusive right to explore and exploit mineral resources on the entirety of the concession area; (b) the right to sell the mineral resources that it extracted on the international market subject to the payment of applicable royalties and taxes; and (c) the right to a stabilized mining legal framework such that only those new, more favorable mining laws enacted after the execution of Concession Contract 3452 in 2007 would apply to its concession. 8. At the time that Eco Oro acquired its investments, Colombia was aware of the presence of páramo ecosystems in proximity to Concession Contract 3452. 6 See para 24, below. 2 Páramo ecosystems are high mountain ecosystems located between the upper limit of the Andean forest and the lower limit of glaciers or permanent snow, dominated by grass and shrubs. No restrictions on mining in páramo ecosystems existed in Colombia nor were there any delimited páramo ecosystems protected by law at the time of Eco Oro’s investments in Permit 3452 in 1994 and its conversion into Concession Contract 3452 in 2007. 9. Throughout the years, Colombia publicly and privately supported Eco Oro’s Angostura Project and took steps to uphold its stabilization commitments. For instance, at the time the first laws seeking to restrict mining in páramo ecosystems were enacted in Colombia in 2010 and 2011 (laws that should not have applied to the Angostura Project in light of the stabilization of the mining framework applicable to Concession Contract 3452), the National Mining Agency declared the Angostura Project to be a Project of National Interest – a designation reserved for projects of special importance to the State in view of their economic, social and environmental impact, entitling those projects to expedited, centralized permitting and processing. The Angostura Project was so designated in February 2011, and then again in June 2013. During that period, the national environmental licensing authority also granted Eco Oro terms of reference to carry out the Environmental Impact Assessment that was required to build and exploit the Angostura underground mine. 10. Subsequently, when the delineation of the Santurbán Páramo ecosystem in the area of the Angostura Project was carried out through a Ministry of Environment resolution in December 2014, the Government sought to respect stabilized mining rights, exempting Concession