Astrida Benita Carrizosa v. Republic of Colombia

Case summary

At a glance

Parties: Astrida Benita Carrizosa (United States) v. Republic of Colombia
Case no.: ICSID Case No. ARB/18/5
Forum and rules: ICSID Convention arbitration; ICSID Arbitration Rules 2006; place of proceeding Washington, D.C.
Treaty: United States–Colombia Trade Promotion Agreement (Chapter 12, Financial Services); Colombia–Switzerland BIT invoked through the most-favoured-nation clause
Tribunal: Prof. Gabrielle Kaufmann-Kohler (President), Prof. Diego P. Fernández Arroyo, Mr. Christer Söderlund
Sector: Banking; financial services
Outcome: Claims dismissed for lack of jurisdiction (Award of 19 April 2021). The claims fell outside the TPA's temporal scope and were time-barred.
Amount: Claimed: no less than USD 40,000,000. Awarded: nothing. The Claimant bears all arbitration costs of USD 588,896.12, which means paying USD 294,448.06 to Colombia, and pays USD 760,458 (50%) of Colombia's legal fees and other costs.

The dispute

Ms. Carrizosa, a US national, held an indirect 2.3307% interest in Granahorrar, a Colombian savings and housing finance institution, through three Colombian holding companies. Her family held 58.76% in total. During the 1997–2001 financial crisis, Colombian authorities acted in October 1998. The Superintendency issued a Capitalization Order, and Fogafín issued a Value Reduction Order that cut the shares' nominal value to COP 0.01. Fogafín then recapitalised Granahorrar and became its majority shareholder. In 2007 the Council of State awarded the family more than COP 226 billion. In 2011 the Constitutional Court quashed that judgment, and its 2014 Order refused to annul the 2011 Decision. The Claimant alleged expropriation and other breaches under Chapter 12 of the TPA. Colombia objected that the claims fell outside the Tribunal's jurisdiction ratione temporis, ratione voluntatis and ratione materiae.

Key holdings

The TPA entered into force on 15 May 2012 and does not apply to earlier acts (Article 10.1.3). Colombia's pre-treaty conduct, including the 1998 Measures and the 2011 Decision, cannot breach the TPA and is outside the Tribunal's jurisdiction. Award, Section IV.A.3
The temporal scope of the TPA is not limited to disputes that arose after it entered into force. Post-treaty conduct that is itself an actionable breach can fall within jurisdiction, even if the wider dispute began earlier. The Tribunal followed Mondev rather than ATA v. Jordan. Award, Section IV.A.3(a)
The 2014 Order is not an independently actionable breach. It only refused to annul the 2011 Decision. The Claimant raised no separate complaint against it, and the damages she claimed flowed from the pre-treaty measures. The claims are therefore outside the Tribunal's temporal jurisdiction. Award, Section IV.A.3(b)
The claims are also time-barred under the three-year limitation period in Article 10.18.1, which applies to Chapter 12 claims. The Claimant knew of the 2014 Order shortly after 25 June 2014 but filed only on 24 January 2018. Award, Section IV.B.3
The Claimant cannot use the MFN clause in Article 12.3.1 to borrow the five-year limitation period of the Colombia–Switzerland BIT. Article 12.1.2(b) limits Colombia's consent to four provisions (Articles 10.7, 10.8, 10.12 and 10.14), so applying the MFN clause is itself outside jurisdiction. The common position of the US and Colombia confirms this reading. In any event the claims would be time-barred under Article 11(5) of the BIT, because the dispute dates from 1998–2000, or at the latest from 2011. Award, Section IV.B.3(a)–(b)
Costs: the Claimant bears all arbitration costs of USD 588,896.12, and so pays Colombia USD 294,448.06. She also pays USD 760,458, which is 50% of Colombia's legal fees and other costs. No interest is awarded because the parties did not substantiate their claims for it. Award, Sections V–VI