Canada/Colombia Free Trade AgreementOn several occasions it has been mentioned that EOM could have recourse under this Agreement. Cutting through the legalize it appears to me there are openings, it is a matter of how enthusiasticly our Government is willing to actively pursue it. They have been loathe to infringe on the sovereignty of countries in the past, particularly as relates to crime.
I have posted a few of the relevant clauses of the agreement, the first covers expropriation of property and compensation, the second refers to the right of Colombia to impose environmental laws. Both sections, and I am sure there are more, appears to leave room for an EOM challenge.
I hope the existence of the FTA does not exclude EOM takingthe case to international arbitration. That court could rule that the FTA is the applicable dispute mechanism!
Chapter 8 of the Agreement contains the following:
Article 811: Expropriation
1. Neither Party may nationalize or expropriate a covered investment either directly, or indirectly through measures having an effect equivalent to nationalization or expropriation (hereinafter referred to as "expropriation"), except:
(a) for a public purpose;
(b) in a non-discriminatory manner;
(c) on prompt, adequate, and effective compensation in accordance with paragraphs 2 to 4; and
(d) in accordance with due process of law.
2. Such compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place ("date of expropriation"), and shall not reflect any change in value occurring because the intended expropriation had become known earlier. To determine fair market value a Tribunal shall use appropriate valuation criteria, which may include going concern value, asset value including the declared tax value of tangible property, and other criteria.
3. Compensation shall be paid without delay and shall be fully realizable and freely transferable. Compensation shall be payable in a freely convertible currency and shall include interest at a commercially reasonable rate for that currency from the date of expropriation until the date of payment.
4. The investor affected shall have a right under the law of the expropriating Party, to prompt review of its case and of the valuation of its investment by a judicial or other independent authority of that Party in accordance with the principles set out in this Article.
5. This Article shall not apply to the issuance of compulsory licenses granted in relation to intellectual property rights, or to the revocation, limitation or creation of intellectual property rights, to the extent that such issuance, revocation, limitation or creation is consistent with the WTO Agreement.
There is and Exception Section later on that includes the right of a country to impose environmental conditions which Colombia would rely on.
3. For the purposes of Chapter Eight (Investment), subject to the requirement that such measures are not applied in a manner that constitute arbitrary or unjustifiable discrimination between investment or between investors, or a disguised restriction on international trade or investment, nothing in this Agreement shall be construed to prevent a Party from adopting or enforcing measures necessary:
- To protect human, animal or plant life or health, which the Parties understand to include environmental measures necessary to protect human, animal or plant life and health;
- To ensure compliance with laws and regulations that are not inconsistent with this Agreement; or
- For the conservation of living or non-living exhaustible natural resources...
4. Nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining measures relating to nationals of the other Party aimed at preserving public order , subject to the requirement that such measures are not applied in a manner that constitutes arbitrary or unjustifiable discrimination. Without prejudice to the foregoing, the Parties understand that the rights and obligations under this Agreement, in particular the rights of investors under Chapter Eight (Investment), remain applicable to such measures.