Perimetral Oriental De Bogota, S.A.S. v. Agencia Nacional De Infraestructura

At a glance

Parties

Perimetral Oriental de Bogotá, S.A.S. (Colombia), petitioner, v. Agencia Nacional de Infraestructura (ANI) and the Republic of Colombia, respondents

Case no.

Civil Action No. 25-1099 (JDB), U.S. District Court for the District of Columbia

Forum and rules

Petition to confirm and enforce a foreign arbitral award under the New York Convention and the Federal Arbitration Act (9 U.S.C. §§ 203, 207); sovereign immunity under the Foreign Sovereign Immunities Act

Treaty

New York Convention (the Panama Convention also applies and is treated as substantively identical); arbitration clause in the ANI–POB road contract

Court

Judge John D. Bates, United States District Court for the District of Columbia

Underlying award(s)

Award of an International Centre for Dispute Resolution tribunal sitting in Bogotá, applying Colombian law, finding ANI liable for breach of contract

Sector

Road infrastructure; toll road concession

Outcome

Memorandum Opinion of 14 August 2026: the petition against Colombia is dismissed without prejudice for lack of subject matter jurisdiction, with leave to amend; ANI's motion to dismiss for lack of personal jurisdiction and forum non conveniens is denied; jurisdictional discovery is denied without prejudice.

Amount

The award granted POB 1.33 trillion Colombian Pesos (the court states this is approximately 425 million dollars). The opinion does not rule on confirmation of the award.

The dispute

In 2014 Perimetral Oriental de Bogotá (POB), a Colombian company, contracted with Colombia's Agencia Nacional de Infraestructura (ANI) to design, build, operate and maintain a 95-mile toll road between Sopó and Cáqueza. After natural springs were found along the route, ANI suspended part of the project. POB started arbitration under the contract's international arbitration clause. An ICDR tribunal sitting in Bogotá found ANI liable for breach of contract and awarded POB 1.33 trillion Colombian Pesos. ANI has asked the Colombian Council of State to set the award aside, and that request is pending. POB petitioned the U.S. court to confirm and enforce the award against ANI and against the Republic of Colombia, seeking to impute ANI's liability to the State. Colombia argued that it is immune because it never agreed to arbitrate and ANI is legally separate from it. ANI argued that the court lacks personal jurisdiction because ANI has no property in the United States and the dispute has no U.S. nexus; in the alternative it relied on forum non conveniens.

Key holdings

1. Whether ANI's agreement to arbitrate binds Colombia is a question of substantive attribution governed by the Bancec framework. It does not turn on whether ANI is an "instrumentality" under the FSIA's service-of-process provision as construed in Transaero. pp. 8–13
2. ANI is a juridical entity separate and independent from Colombia and enjoys Bancec's presumption of separateness. The court relied on ANI's own legal personality, its administrative, financial and technical autonomy, its own assets and liabilities, and its board-based governance. Colombia's 97% share of ANI's capital budget, ANI's tax-offset duty, regulatory oversight and the ministers on its board did not defeat that status. pp. 14–22
3. POB did not rebut the presumption. It showed no principal–agent relationship, because there was no evidence that Colombia directed any specific ANI decision or received ANI's profits. Its bare allegations of undercapitalization did not establish fraud or injustice. The FSIA arbitration exception therefore does not apply to Colombia. pp. 22–25
4. The implied waiver exception also fails. POB alleged none of the three recognised forms of implied waiver. Even under the Second Circuit's Seetransport reasoning, Colombia never made an agreement to arbitrate. The petition against Colombia is dismissed without prejudice for lack of subject matter jurisdiction. pp. 25–26
5. POB is granted leave to amend, because the request was timely, made in good faith and not futile. Jurisdictional discovery is denied without prejudice until an amended petition pleads specific facts crucial to immunity. pp. 26–28
6. The court has personal jurisdiction over ANI. Under CC/Devas, the FSIA requires only an applicable immunity exception and proper service, and ANI conceded both. As a separate instrumentality, ANI is a "person" protected by the Fifth Amendment. Assuming without deciding that jurisdiction must be reasonable after Fuld, it is reasonable here, given the federal policy favouring arbitration, POB's interest in a judgment against possible future U.S. assets, and the minimal burden on ANI. pp. 28–32
7. Forum non conveniens is not available in proceedings to confirm a foreign arbitral award, even where the debtor currently has no U.S. assets. p. 33

Procedural history

1. 2014POB wins the tender and contracts with ANI to build the Sopó–Cáqueza toll road.
2. Date not statedAfter natural springs are discovered, ANI suspends part of the project, and POB starts arbitration before an ICDR tribunal sitting in Bogotá.
3. Date not statedAfter four years of proceedings, the tribunal finds ANI liable for breach of contract and awards POB 1.33 trillion Colombian Pesos.
4. Date not statedANI asks the Colombian Council of State to set the award aside; the request is pending at the time of the opinion.
5. Date not statedPOB petitions the U.S. District Court for the District of Columbia to confirm and enforce the award against ANI and Colombia. Both respondents move to dismiss, and the court requests supplemental memoranda on Fuld.
6. 14 August 2026Memorandum Opinion: Colombia's motion to dismiss and POB's request for leave to amend are granted; ANI's motion to dismiss and POB's request for jurisdictional discovery are denied.

Tribunal, counsel and experts

Decided by

• John D. Bates Judge, United States District Court for the District of Columbia

Run a conflict check on these names →

Keywords

• New York Convention
• Panama Convention
• enforcement
• Foreign Sovereign Immunities Act
• arbitration exception
• implied waiver
• Bancec
• presumption of separateness
• alter ego
• principal-agent relationship
• state instrumentality
• personal jurisdiction
• Fifth Amendment due process
• Fuld
• CC/Devas
• forum non conveniens
• jurisdictional discovery
• toll road

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