Gran Colombia Gold v. Colombia

Case summary

At a glance

Parties: Gran Colombia Gold Corp. (Canada), later renamed GCM Mining Corp. and then Aris Mining Corporation, v. the Republic of Colombia
Case no.: ICSID Case No. ARB/18/23
Forum and rules: ICSID Convention arbitration; ICSID Arbitration Rules in force from 10 April 2006, as modified by Section B of Chapter Eight of the FTA; place of proceeding Washington D.C.
Treaty: Canada–Colombia Free Trade Agreement (signed 21 November 2008, in force 15 August 2011)
Tribunal: Ms. Jean E. Kalicki (President), Prof. Bernard Hanotiau, Prof. Brigitte Stern. The first president, Ms. Loretta Malintoppi, resigned after a disqualification proposal.
Sector: Gold and silver mining (Segovia and Marmato, Colombia)
Outcome: Colombia's denial-of-benefits objection was dismissed on 23 November 2020, and the case went on to the merits, with a hearing on jurisdiction and merits scheduled for September 2022. The published documents do not show a final award.

The dispute

Gran Colombia Gold Corp. (GCG), a British Columbia company, holds gold and silver mining titles in Colombia at Segovia (including title RPP-140, which covers the El Cogote mine) and at Marmato. It claims that Colombia failed to enforce eviction orders (amparos administrativos) against miners working inside its title areas without a mining title. It also challenges later measures, including Constitutional Court Judgment SU-133 of 28 February 2017 and fines and delayed environmental permits at Segovia. GCG claims indirect expropriation under Article 811 of the FTA, and breach of full protection and security and of fair and equitable treatment under Article 805. Colombia raised jurisdictional objections: a denial of benefits under Article 814(2), notified by letter of 31 May 2018; failure to meet the notice and cooling-off conditions of Article 821; and the 39-month limitation period. On the merits, it argued that GCG knowingly took on the risk posed by long-established artisanal and small-scale miners, caused its own losses and failed to mitigate them.

Key holdings

Bifurcation was granted only for the denial-of-benefits objection, on an accelerated timetable. The objections on conditions precedent and the limitation period were joined to the merits, because they could not dispose of the whole case and overlapped with the merits facts. The question of separating quantum from liability was deferred. Procedural Order No. 3, ¶¶ 29–36
Article 814(2) sets no time limit for denying benefits, and a tribunal may not read one in. A denial made after the arbitration has started is not a retroactive withdrawal of consent contrary to Article 25(1) of the ICSID Convention. The only limit comes from the arbitration rules: the deadline for the counter-memorial under ICSID Arbitration Rule 41(1). Colombia's denial, made one day after it received the Request for Arbitration, was therefore timely. Decision on the Bifurcated Jurisdictional Issue, ¶¶ 126–131
The two conditions in Article 814(2) are cumulative, so an investor defeats a denial of benefits by showing either one. The Tribunal therefore did not decide whether GCG was owned or controlled by Canadians, including the role of its founders Messrs. Iacono and de la Campa. Decision on the Bifurcated Jurisdictional Issue, ¶¶ 133–135
GCG has substantial business activities in Canada. The test requires a genuine, material connection to the home State, not a comparison with other countries, and the activities need not be in the same sector as the overseas business. GCG's Toronto headquarters with eight full-time employees, six Canadian bank accounts holding more than US$25 million, and more than US$500 million raised on Canadian markets met the test. The denial of benefits was therefore ineffective and the objection was dismissed. Decision on the Bifurcated Jurisdictional Issue, ¶¶ 136–141, 157(1)–(2)
GCG's ancillary claim that Colombia breached Article 814(2) by an unfounded denial of benefits is admissible under ICSID Arbitration Rule 40, because it arises directly out of the subject matter of the dispute. GCG's request for a declaration of breach was denied as premature, pending further briefing on whether relief is available. Costs were reserved. Decision on the Bifurcated Jurisdictional Issue, ¶¶ 153–157
The El Cogote miners' association was allowed to file a written submission of up to 20 pages on three issues: the local context of the mine, the history of the title and alleged corruption in the acquisition of RPP-140, and the dealings between the local population and GCG. It was refused leave on its other issues, and its request for a site visit was denied. Procedural Order No. 10, ¶¶ 28–40
The El Cogote association's later request for access to the parties' evidence and submissions was denied. Under Article 830(1) of the FTA, the parties had agreed that these documents would not be made public, and the Tribunal has no power to override that agreement. Procedural Order No. 13, ¶¶ 3–8

Procedural history

10 October 2016GCG delivers its Notice of Intent to submit the claim to arbitration.
25–29 May 2018Request for Arbitration (dated 25 May 2018) is received by ICSID on 29 May 2018. Colombia denies GCG the benefits of the FTA by letter of 31 May 2018. ICSID registers the case on 2 July 2018.
31 October 2018Tribunal constituted. After GCG proposed the disqualification of Ms. Malintoppi, she resigned, and the vacancy was notified on 5 February 2019. The Tribunal was reconstituted with Ms. Kalicki as President on 25 April 2019.
24 June 2019Procedural Order No. 1 sets the procedural rules, the provisional timetable and the transparency arrangements.
17 January 2020Procedural Order No. 3 bifurcates the denial-of-benefits objection and joins the other objections to the merits.
28–29 September 2020Remote hearing on the bifurcated jurisdictional issue. Canada attends as the non-disputing Treaty Party, having filed a written submission on 14 August 2020.
23 November 2020Decision on the Bifurcated Jurisdictional Issue: the denial-of-benefits objection is dismissed and the ancillary claim is admitted.
31 August 2021Procedural Order No. 10 partly grants the El Cogote association leave to file a non-disputing party submission.
7–16 September 2022In-person hearing on jurisdiction and merits scheduled at ICSID in Washington, D.C.
19 November 2025The claimant's press release on a settlement and termination agreement is listed among the case documents; its text is not included here.

Tribunal, counsel and experts

Decided by: Jean E. Kalicki President — appointed by the parties jointly (appointed 25 April 2019 to replace Loretta Malintoppi)
Bernard Hanotiau Co-arbitrator — appointed by the claimant
Brigitte Stern Co-arbitrator — appointed by the respondent
Loretta Malintoppi President — appointed by the parties jointly (resigned after a disqualification proposal; vacancy notified 5 February 2019)
For the claimant: Dentons · Dentons Europe LLP · Honlet Legum Arbitration
For the respondent: Agencia Nacional de Defensa Jurídica del Estado · Latham & Watkins LLP
For other participants: Trade Law Bureau, Government of Canada
Experts: José Alberro (claimant) · R. Bruce Kennedy (claimant) · Neill May (claimant) · Leonardo Güiza (claimant) · Adriana Martínez (claimant) · Graham A. Davis (respondent) · Mario E. Rossi (respondent) · Bernarda Elizalde Mora (respondent) · Natalia González Parias (respondent)