Aris Mining Corporation (formerly known as GCM Mining Corp. and Gran Colombia Gold Corp.) v. Republic of Colombia

At a glance

Parties

Aris Mining Corporation (formerly GCM Mining Corp. and Gran Colombia Gold Corp.), Canada, v. Republic of Colombia

Case no.

ICSID Case No. ARB/18/23

Forum and rules

ICSID Convention; ICSID Arbitration Rules 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

Jean E. Kalicki (President), Bernard Hanotiau, Brigitte Stern

Sector

Gold and silver mining (Marmato and Segovia projects)

Outcome

Colombia's denial-of-benefits objection was rejected (23 November 2020). After a full hearing, the parties settled, and the Tribunal took note of the discontinuance on 2 December 2025. No award on the merits was issued.

The dispute

Gran Colombia Gold Corp. (later renamed GCM Mining Corp. and then Aris Mining Corporation) is a company incorporated in British Columbia. It held indirect investments in two gold mining projects in Colombia, centred on the municipalities of Marmato and Segovia. It claimed that Colombia failed to protect these investments from miners working without titles inside its mining titles, including by not enforcing eviction orders at the El Cogote mine. It alleged indirect expropriation (Article 811 of the FTA) and breaches of full protection and security and fair and equitable treatment (Article 805). It sought the fair market value of the investments or, in the alternative, restitution of its out-of-pocket investment in the Marmato Project, plus damages. Colombia denied the claimant the benefits of the FTA by letter of 31 May 2018 under Article 814(2). It argued that the company was owned or controlled by non-Canadians (its founders, Messrs. Iacono and de la Campa) and had no substantial business activities in Canada. Colombia also raised objections based on the FTA's conditions precedent and its time limit for claims.

Key holdings

1. The denial of benefits was timely. Article 814(2) sets no time limit, and the Tribunal will not read one into it. Investors are on notice from the FTA's entry into force that its protections depend on these conditions, so a later denial is neither retroactive nor a withdrawal of consent under Article 25(1) of the ICSID Convention. The only deadline comes from ICSID Arbitration Rule 41(1), which requires objections by the counter-memorial. Colombia's denial, one day after it received the Request for Arbitration, met that deadline. Decision on the Bifurcated Jurisdictional Issue, ¶¶ 126–131
2. The two conditions of Article 814(2) are cumulative. An investor defeats a denial of benefits by showing either that it is owned or controlled by home-State nationals or that it has substantial business activities in its home State. The Tribunal therefore did not decide the ownership and control questions. Decision on the Bifurcated Jurisdictional Issue, ¶¶ 133–135
3. The claimant had substantial business activities in Canada, so the denial of benefits was ineffective. The record showed core corporate functions in Toronto and eight full-time employees there, paid over CAD 1.2 million in 2018. It also showed six Canadian bank accounts holding more than US$25 million and more than US$500 million raised on Canadian markets. The FTA does not require home-State activities of the same kind as those abroad, so no mining in Canada was needed. Decision on the Bifurcated Jurisdictional Issue, ¶¶ 136–141
4. The claimant's new claim that the unfounded denial of benefits itself breached Article 814(2) is admissible as an ancillary claim under ICSID Arbitration Rule 40. It arises directly out of the subject matter of the dispute and was filed in time. The request for a declaration of breach was denied as premature, pending further briefing on whether any relief is available. Costs were reserved. Decision on the Bifurcated Jurisdictional Issue, ¶¶ 142–157
5. Bifurcation was granted only for the denial-of-benefits objection, which could dispose of the whole case and did not overlap with the merits. The objections on the notice of intent, the cooling-off period and the time limit were joined to the merits. Procedural Order No. 3, ¶¶ 29–36
6. The Asociación Mutual de Mineros "El Cogote" was allowed to file a non-disputing party submission of up to 20 pages on three issues only. Its invitation to a site visit was denied. Its later request for access to the case documents was refused (Procedural Order No. 13), because the parties had agreed under Article 830(1) of the FTA that those documents would not be made public. Procedural Order No. 10, ¶ 40
7. The parties reached a full and final settlement. On their joint request, the Tribunal took note of the discontinuance of the proceeding under ICSID Arbitration Rule 43(1). Order Taking Note of the Discontinuance, ¶¶ 71–76

Procedural history

1. 10 October 2016The claimant delivers its Notice of Intent.
2. 25–31 May 2018The Request for Arbitration is filed (dated 25 May 2018). Colombia denies the benefits of the FTA by letter of 31 May 2018.
3. 2 July 2018ICSID registers the case. The Tribunal is constituted on 31 October 2018 with Loretta Malintoppi as President.
4. 26 November 2018 – 25 April 2019The claimant proposes Ms. Malintoppi's disqualification, and she resigns (vacancy notified 5 February 2019). The Tribunal is reconstituted on 25 April 2019 with Jean E. Kalicki as President.
5. 17 January 2020Procedural Order No. 3: only the denial-of-benefits objection is bifurcated.
6. 23 November 2020Decision on the Bifurcated Jurisdictional Issue: the denial-of-benefits objection is rejected, after a remote hearing on 28–29 September 2020 at which Canada attended as non-disputing State Party.
7. 31 August 2021Procedural Order No. 10 grants El Cogote's non-disputing party application in part.
8. 7–16 September 2022Hearing on jurisdiction, merits and quantum in Washington, D.C. Closing arguments follow on 7 December 2022 in Miami.
9. 20 November 2023The proceeding is suspended at the parties' request for settlement talks. The suspension is extended repeatedly until 1 November 2025.
10. 2 December 2025Order taking note of the discontinuance of the proceeding after the settlement.

Tribunal, counsel and experts

Decided by

• Jean E. Kalicki President — appointed by the parties jointly (appointed 25 April 2019 after the resignation of Loretta Malintoppi)
• Bernard Hanotiau Co-arbitrator — appointed by the claimant
• Brigitte Stern Co-arbitrator — appointed by the respondent

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) · Bernarda Elizalde Mora (respondent) · Natalia González Parias (respondent) · Mario E. Rossi (respondent)

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Keywords

• denial of benefits
• Article 814(2)
• substantial business activities
• ownership and control
• timeliness of denial of benefits
• Canada–Colombia FTA
• gold mining
• Marmato
• Segovia
• El Cogote
• illegal mining
• indirect expropriation
• full protection and security
• fair and equitable treatment
• ancillary claim Rule 40
• bifurcation
• non-disputing party submission
• discontinuance settlement

Summary generated with AI from the published documents — refer to the award for the authoritative text.