Análisis jurídico de la potencial violación al estándar de trato justo y equitativo del derecho internacional de las inversiones en el caso Eco Oro Minerals Corp. vs Colombia

Abstract

The standard of fair and equitable treatment henceforth, FET, is one of the main guarantees that signatories of international treaties have for the protection of their nationals investment, which is why it has been the mostly invoked standard by foreign investors when trying to enforce the rights they have acquired with the states benefiting from their investments, as well as the recognition of their allegedly violated expectations. However, its effectiveness depends on the application made in each case of the FET, as it must be approached in conjunction with the provisions of customary international law and not only with what has been expressly agreed in the international instrument that contains it. At this point, the actual challenge lies in the harmonization of the content of this standard with the regulatory power that states have in terms of protection of human rights and the environment, since on multiple occasions, areas with vulnerable populations or protected ecosystems have coincided with being the object of settlement of various investment projects. In this context, this paper intends to conduct a case study of the controversy presented by the Canadian company Eco Oro Minerals Corp against Colombia before the International Centre for Settlement of Investments Disputes. In effect, it seeks to identify the feasibility of the company's allegations, looking for a possible violation of the FET standard contained in Article 805 of the Canada-Colombia FTA, through the positions on the matter provided by the doctrine and international arbitration courts.