For DR. Adeline Zoe modification

International Investment Law – Moot Court

Eco Oro Minerals Corp. v. The Republic of Colombia

RESPONDENT

I) Introduction:

1. Dear Madam Presiding Arbitrator, dear Members of the Arbitral Tribunal, my name is XX and today I joined by my co-counsels XX here on behalf of Respondent, the Republic of Colombia in these ICSID proceedings Claimant, Eco Oro Minerals Corp.

2. Today, we will structure our pleadings as …

1. Summary of Dispute:

3. Let me begin by providing an overview of the facts that have brought us here today.

4. This dispute arises out of environmental protection measures that Respondent adopted in connection with the paramo ecosystem in Santurbán. Claimant is now baselessly alleging that these measures deprived it of its mining rights under a concession contract. The concession contract was entered into between Eco Oro and INGEOMINAS on 8 February 2007 for the exploration and exploitation of a deposit of different precious metals and minerals like gold, silver, zinc, copper and tin.

5. This contract relates to the Angostura gold and silver deposits located in the Soto Norte region of the department of Santander, within the Vetas California gold district in Colombia.

II) Preliminary Matters: Jurisdiction

6. We begin by respectfully arguing that the Tribunal lacks jurisdiction to hear the merits of this case. We submit four reasons why this is so. First …, Second…, Third.. and Finally…

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II) Colombia has validly denied the benefits of Chapter Eight of the FTA to Eco Oro in accordance with art. 814(2) of the Treaty

8. The Tribunal lacks jurisdiction because Respondent validly denied the benefits of the FTA to Eco Oro. Respondent submits that art. 814(2) permits State parties to deny the advantages of the Treaty, including access to international arbitration, to companies which are owned or controlled by nationals of third States and have no substantial business in their State of incorporation.

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II) Eco Oro Is Not A Protected Investor Under The FTA, Because It Assigned Its Claims to Non-Canadian Nationals

10. The Tribunal lacks personal jurisdiction over Eco Oro because the true beneficiary of the claim is a Delware-incorporated US company (Trexs) to whom Eco Oro assigned the benefit of its claim in July 2016.

11. Look at art. 838 of the FTA

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II) Eco Oro Failed To Comply With Four of the Mandatory Conditions Precedent to Arbitration, Including Failing to Bring Its Claims Within the Limitation Period

13. The Tribunal lacks jurisdiction because Eco Oro has failed to comply with four mandatory conditions precedent set forth in art. 821 FTA. Failure to comply with the conditions in art. 821 results in nullification of Colombia’s consent to arbitrate.

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II) Eco Oro’s Claim Falls Outside the Tribunal’s Temporal and Subject-Matter Jurisdiction

15. First, Eco Oro’s claims relate to a prohibition on mining in the paramo areas which has been in force since 2010. This was before the entry into force of the FTA on 15 August 2011 and the dispute between the Parties therefore arose before this entry into force. Eco Oro’s claims therefore fall outside the temporal scope of the FTA.

16. Second, Eco Oro’s claims fall outside the substantive scope of the FTA. Respondent argues that art. 2201(3) of the FTA should be construed as providing that nothing in the FTA is to be read as restricting the Contracting Parties’ ability to adopt measures “necessary to protect human, animal or plant life or health” and for “the conservation of living or non-living exhaustible natural resources”. Therefore, Respondent did not consent to arbitrate disputes that relate to such measures and fall outside the scope of the covered measures, under Section A of the FTA.

17. Eco Oro’s claims fall squarely within the Environmental Exception of the FTA and therefore outside of the Tribunal’s jurisdiction. The measures were all necessary for the protection of human, plant and animal life, namely the paramo ecosystem and for the conservation of non-living exhaustible natural resources, namely water.

18. Opinion of the Court of Justice of the European Union that states that environmental exceptions in investment instruments can act as a bar to jurisdiction over claims concerning measures for the protection of the environment.

III) Substantive Claims

19. If this Tribunal were to find, against our primary submission, that it does in fact have jurisdiction to hear this case, we would like to submit the following arguments on the merits, contesting all of the allegations that Claimant has brought forward:

III) Colombia Did Not Unlawfully Expropriate Eco Oro’s Investment

III) First, the FTA establishes the primacy of environmental protection over trade and investment.

20. A good faith reading of the FTA proves that the primacy of environmental protection over trade and investment is clear.

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III) Second, Respondent did not expropriate Eco Oro’s investment

22. The measures complained by Claimant did not have an effect equivalent to direct expropriation as there was no deprivation.

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III) Third, Claimant’s legitimate expectations were not disappointed

24. The claimant failed to produce facts and legal opinions to generate legitimate expectations for the award of mining rights in Colombia, even with knowledge about the existence of the páramo ecosystem.

25. Claimant failed to produce evidence on the measures to ensure compliance with the regulatory safeguards by the Colombian government to ensure environmental protection.

26. Claimant did not offer justifiable expectations that would provide the basis for safeguards to protect the páramo ecosystem upon the award of mining rights per Article 811.

27. Claimant did not offer legitimate expectations on minimum standard treatment of foreign investors as stipulated in Article 805 of the Free Trade Agreement.

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III) Fourth, Respondent’s measures were not arbitrary, capricious nor disproportionate

29. The articles of the FTA do not provide for proportionality, unreliability, non-arbitrariness in the standard treatment of aliens.

30. Respondent offered strong evidence and opinions on Article 811 of the FTA that make the actions balanced and reliable in supporting the case and providing equal investment protection.

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III) Fifth and finally, The regulatory regime was transparent and predictable

32. As enshrined in Article 811, the regulatory regime is transparent in providing complete protection and security toward a justifiable public welfare objective.

33. The delimitation process lacked the minimum requirements, such as transparency and unpredictability, against the regulatory measures guiding the protection of public interests among member states of the FTA.

34. Claimant’s allegations that the regulatory measures seeking to protect the páramo ecosystem affected Eco Oro’s mining concession disregard Colombia’s constitutional obligations and expectations

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III) Colombia Did Not Violate Art. 805 of the FTA and the Minimum Standard of Treatment

36. Respondent treated Claimant’s investment in accordance with the minimum standard of treatment under customary international law.

37. It is clear from art. 805 (footnote 2) that both FET and FPS under this provision do not require treatment “in addition to or beyond” the MST.

38. First, Eco Oro’s claims relate to a prohibition on mining in the paramo areas which has been in force since 2010. This was before We now turn to

III) In Any Case, Colombia’s Actions Are Justified Under the FTA’s Environmental Exception

39. Respondent submits that art. 2201(3) of the FTA should be construed as providing that nothing in the FTA is to be read as restricting the Contracting Parties’ ability to adopt measures “necessary to protect human, animal or plant life or health” and for “the conservation of living or non-living exhaustible natural resources”. Therefore, Respondent did not consent to arbitrate disputes that relate to such measures and fall outside the scope of the covered measures, under Section A of the FTA.

40. Eco Oro’s claims fall squarely within the Environmental Exception of the FTA and therefore outside of the Tribunal’s jurisdiction. The measures were all necessary for the protection of human, plant and animal life, namely the paramo ecosystem and for the conservation of non-living exhaustible natural resources, namely water.

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42. As Sourav already elaborated on jurisdictional grounds,

IV) Concluding Remarks and Request For Relief

43. Madam Presiding Arbitrator, Members of this Tribunal, you are faced today not just with a mere dispute concerning a mining investment. This is not just about preserving the Santurbán Páramo. It isn’t even limited to protecting an environmentally vulnerable wetland with a major influence on natural water distribution throughout the country.

44. The way you rule on this case will set a precedent for how the international investment law world and future Tribunals faced with similar questions view the importance of environmental protection. How do legitimate police powers in the service of the environment relate to investment protection?

45. This case turns on a struggle between competing societal objectives which pull in opposite directions: on the one hand, you have the protection of the treaty rights of an international investor; on the other hand, the ability of a community to take legitimate measures to conserve its environment.

46. J In the age of climate change and significant loss of biological diversity, it is clear that society finds itself in a state of transition. The law – including international law – must take account of that state of transition, which gives rise to numerous uncertainties. Adjudicators – judges and arbitrators – recognise the need to proceed with caution at a time of transition and uncertainty. Indeed, the precautionary principle has been developed to assist in the taking of decisions in times of uncertainty, and the Tribunal has correctly determined that the application of the precautionary principle – treated as being applicable as a rule of law in accordance with Article 832 of the FTA – to this case has contributed to the conclusion that there has been no actionable violation of Article 811 of the FTA. Yet in respect of Article 805, it seems that precaution has no place for the Majority.

47. Claimant went into this project with its eyes open, knowing that it was investing in a parámo which was already subject to certain protections, and it knew – or should have known – that over time those protections were likely to become even more restrictive.

48. Canada on behalf on Claimant has submitted in its briefs, that “trade and environment policies are mutually supportive” arguing that “that neither environmental protection nor investment protection is subservient to the other, they must co-exist in a mutually beneficial manner.”

We therefore submit the following prayers for relief:

1. First, we request that the Tribunal dismiss Eco Oro’s claims for lack of jurisdiction.

Even if this Tribunal were to assume jurisdiction, we request:

2. That the Tribunal dismiss Eco Oro’s claims in their entirety and declare that there is no basis of liability owed by the Republic of Colombia under the FTA, neither under art. 805 nor art. 811 of the FTA.

3. That the Tribunal order Eco Oro to pay the Republic of Colombia all costs associated with these proceedings, including arbitration costs and all professional fees and disbursements, as well as the fees of the arbitral tribunal, plus interest.

4. That the Tribunal grant such relief that the Tribunal may deem just and appropriate.

Table of Contents

I) Introduction: 1

1. Summary of Dispute: 1

II) Preliminary Matters: Jurisdiction 1

II) Colombia has validly denied the benefits of Chapter Eight of the FTA to Eco Oro in accordance with art. 814(2) of the Treaty 1

II) Eco Oro Is Not A Protected Investor Under The FTA, Because It Assigned Its Claims to Non-Canadian Nationals 2

II) Eco Oro Failed To Comply With Four of the Mandatory Conditions Precedent to Arbitration, Including Failing to Bring Its Claims Within the Limitation Period 2

II) Eco Oro’s Claim Falls Outside the Tribunal’s Temporal and Subject-Matter Jurisdiction 2

III) Substantive Claims 3

III) Colombia Did Not Unlawfully Expropriate Eco Oro’s Investment 3

III) First, the FTA establishes the primacy of environmental protection over trade and investment. 3

III) Second, Respondent did not expropriate Eco Oro’s investment 3

III) Third, Claimant’s legitimate expectations weren’t disappointed 3

III) Fourth, Respondent’s measures were not arbitrary, capricious nor disproportionate 3

III) Fifth and finally, The regulatory regime was transparent and predictable 4

III) Colombia Did Not Violate Art. 805 of the FTA and the Minimum Standard of Treatment 4

III) In Any Case, Colombia’s Actions Are Justified Under the FTA’s Environmental Exception 4

IV) Concluding Remarks and Request For Relief 4