Colombia - Korea, Republic of BIT (2010) - Electronic Database of Investment Treaties (EDIT)

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Colombia - Korea, Republic of BIT (2010)

2. In order to submit a claim for settlement under this Article, domestic administrative remedies shall be exhausted in accordance with applicable laws and regulations. Such procedure shall normally not exceed three (3) months, and in no case exceed six (6) months, from the date of its initiation by the investor.

3. Nothing in this Article shall be construed as to prevent the parties of a dispute from referring their dispute, by mutual agreement, to ad hoc or institutional mediation or conciliation before or during the arbitral proceeding.

4. If the dispute has not been settled within nine (9) months from the date of the written notification mentioned in paragraph 1 of this Article, a notice of request for arbitration ("request for arbitration' 1) may be submitted, at the discretion of the investor:

a. to any competent court or administrative tribunal of the Contracting Party to the dispute;

b. in accordance with any dispute settlement procedure agreed upon prior to the dispute; or

c. by arbitration in accordance with this Article under:

i. the Convention on the Settlement of Investment Disputes between States and Nationals of other States (the "ICSID Convention'), if the ICSID Convention is available;

ii. the Additional Facility Rules of the Centre for Settlement of Investment Disputes ("ICSID Additional Facility'), if the ICSID Additional Facility is available;

iii. the Arbitration Rules of the United Nations Commission on International Trade Law ("UNCITRAL"); or

iv. if agreed by both parties to the dispute, any other arbitration institution or any other arbitration rules.

5. Each Contracting Party hereby gives irrevocable consent to the submission of a dispute to international arbitration established in paragraphs 4.b. and c. of this Article, in accordance with the procedures set out in this Agreement. The consent and the submission of a claim to arbitration under this article shall satisfy the requirements of:

a. Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules with regards to the written consent of the parties to the dispute; and

b. Article II of the New York Convention for an "agreement in writing."

6. The consent under paragraph 5 only applies on the condition that the investor whether on its own behalf or on behalf of a juridical person of the Contracting Party in dispute that the investor owns or controls directly or indirectly, waives in writing the right to initiate any other dispute settlement procedure with respect to the same dispute.

For greater clarity, once the investor has submitted the dispute to either a competent tribunal of the Contracting Party in whose territory the investment has been admitted or any of the arbitration mechanisms stated above, the choice of the procedure shall be final and the investor shall not submit the same dispute to a different forum.

7. The seeking of interim relief not involving the payment of damages, from judicial or administrative tribunals, by a party to a dispute submitted to arbitration under this article, for the preservation of its rights and interests pending resolution of the dispute, is not deemed a submission of the dispute for resolution for purposes of a Contracting Party's limitation of consent under paragraph 6, and is permissible in arbitration under any of the provisions of paragraphs 4.b. and c.

8. The disputing investor may only submit a request for arbitration if the term established in paragraph 4 of the present Article has elapsed, and the disputing investor has notified, in writing a hundred and eighty (180) days in advance, the Contracting Party of his intention to submit a request for arbitration ("notice of intent").

Such a notice shall specify:

a. the name and address of the disputing investor and the investment;

b. the provisions of this agreement alleged to have been breached and any other relating provisions;

c. the issues and the factual basis for the claim; and

d. the relief sought, including the approximate amount of any damages claimed.

9. An investor may not file a complaint if more than three years and three months have elapsed since the date the investor had knowledge or should have had knowledge of the events which gave rise to the dispute, as well as of the alleged losses and damages.

10. Unless the disputing parties otherwise agree, the tribunal shall comprise three arbitrators, one arbitrator appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, appointed by agreement of the disputing parties. If a tribunal has not been constituted within the terms established under the applicable arbitration rules from the date a claim is submitted to arbitration under this Article, the Secretary General of ICSID, on the request of a disputing party, shall appoint, in his or her discretion, prior consultations to the parties, the arbitrator or arbitrators not yet appointed. The Secretary General of ICSID shall not appoint a national of either Contracting Party as the presiding arbitrator.

11. The disputing parties may agree on the legal place of any arbitration under the arbitral rules applicable under paragraph 4(c). If the disputing parties fail to reach an agreement, the tribunal shall determine the place in accordance with the applicable arbitral rules, provided that the place shall be in the territory of a State that is a party to the New York Convention.

12. A Contracting Party shall not assert as a defence, counter-claim, right of set-off or for any other reason, that indemnification or other compensation for all or part of the alleged damages has been received or will be received pursuant to an indemnity, guarantee or insurance contract except to the extent that indemnification or other compensation for the alleged damages has been received or will be received pursuant to an indemnity, guarantee or insurance of non commercial risks as provided for under Article 7.

13. The arbitral tribunal, in its award shall set out its findings of law and fact, together with the reasons for its ruling and may, at the request of a party, provide the following forms of relief:

a. a declaration that the Contracting Party has failed to comply with its obligations under this Agreement;

b. pecuniary compensation, which shall include interest from the time the loss or damage was incurred until the payment was made;

c. restitution in kind as appropriate, provided that the Contracting Party may pay pecuniary compensation in lieu thereof where restitution is not practicable; and

d. with the agreement of the parties to the dispute, any other form of relief.

14. The Tribunal shall be competent to rule on the consistency of the measures at issue with this Agreement and International Law. For greater clarity, this shall not preclude any disputing party from submitting, as a matter of fact, evidence related to the legality of a measure under domestic law.

15. Pursuant to this Article and the law of the host Contracting Party, each Contracting Party shall provide for the enforcement of an award in its territory.

16. The Contracting Parties shall refrain from pursuing through diplomatic channels matters related to disputes between a Contracting Party and an investor of the other Contracting Party submitted to court proceedings or international arbitration, in accordance with the provisions of this article, unless one of the parties to the dispute has failed to comply with the court decision or arbitral award, under the terms established in the respective decision or arbitral award.

17. The dispute settlement mechanisms provided in this Agreement will be based on the provisions of the present Agreement, the national law of the Contracting Party in whose territory the investment has been made, including the rules related to conflict of laws, on the general principles of law and international customary law.

18. Before ruling on the merits, the tribunal shall rule on the preliminary questions of competence and admissibility. When deciding about the objection of the respondent, the tribunal shall rule on the costs and fees of attorneys incurred during the proceedings, considering whether or not the objection prevailed.

The tribunal shall consider whether either the claim of the claimant or the objection of the respondent is frivolous, and shall provide the disputing parties a reasonable opportunity for comments. In the event of a frivolous claim the tribunal shall award costs against the claimant.

19. The presentation of the notice of intent and other documents to a Party will be done in the place designated by that Party in the Annex. (Presentation of Documents Regarding Article 12).

Article 13. Application of other Rules

If the laws and regulations of either Contracting Party or obligations under international law existing at present or established hereafter between the Contracting Parties in addition to this Agreement contain provisions, whether general or specific, entitling investments by investors of the other Contracting Party to a treatment more favourable than is provided for by this Agreement, such provisions shall prevail over this Agreement to the extent they are more favourable.

Article 14. Application of the Agreement

1. This Agreement is applicable to existing investments at the time of its entry into force, as well as to investments made thereafter in the territory of a Contracting Party in accordance with the law of the latter by investors of the other Contracting Party. For greater certainty, the provisions of this Agreement shall not apply to claims arising out of events which occurred, or to claims which had arisen or had been settled, prior to its entry into force.

2. The provisions of this Agreement shall not apply to tax matters.

3. Nothing contained in this Agreement shall apply to measures adopted by any Contracting Party, in accordance with its law, with respect to the financial sector for prudential reasons, including those measures aimed at protecting investors, depositors, insurance takers or trustees, or to safeguard the integrity and stability of the financial system.

Article 15. Denial of Benefits

1. A Contracting Party may deny the benefits of this Agreement to an investor of the other Contracting Party that is a juridical person of such other Contracting Party and to investments of such investor if persons of a non-Contracting Party own or control the juridical person and the denying Contracting Party adopts or maintains measures with respect to the non-Party or a person of the non-Contracting Party that prohibit transactions with the juridical person or that would be violated or circumvented if the benefits of this Agreement were accorded to the juridical person or its investments.

2. By way of notification, a Contracting Party may confirm that it denies the benefits of this Agreement to an investor of the other Contracting Party that is a juridical person of such other Contracting Party and to investments of such investor if the juridical person has no substantial business activities in the territory of the other Party and persons of a non-Contracting Party, or of the denying Contracting Party, own or control the juridical person.

Article 16. Security Exception

Nothing in this Agreement shall be construed to:

a. require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests;

b. prevent a Party from taking any actions or measures necessary to preserve its public order or protect its own essential security interests;

c. prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security; or

d. require a Party to protect investments made with capital or assets derived from illegal activities.

Article 17. Entry Into Force, Duration and Termination

1. The Contracting Parties shall notify each other of the compliance with the internal requirements of each of the Contracting Parties in connection with the entry into force of this Agreement. This Agreement shall enter into force forty five (45) days after the date of receipt of the latter notification.

2. This Agreement shall remain in force for a ten (10) year period and shall be extended indefinitely thereafter. After ten years, this Agreement may be denounced at any time by any of the Contracting Parties, upon a twelve-month prior notice, sent through diplomatic channels.

3. With respect to investments admitted before the date on which the notice of termination of this Agreement becomes effective, the provisions of this Agreement shall remain in force for an additional term of ten (10) years from such a date.

4. The Agreement may be revised by mutual consent of the Contracting Parties. Any revision or termination of this Agreement shall be effected without prejudice to any rights or obligations accruing or incurred under this Agreement prior to the effective date of such revision or termination.

Conclusion

IN WITNESS WHEREOF, the undersigned, duly authorized thereto by their respective Governments, have signed this Agreement.

DONE in duplicate at Seoul on the 6th day of July 2010, in the Korean, Spanish and English languages, all texts being equally authentic. In case of any divergence of interpretation, the English text shall prevail.

FOR THE GOVERNMENT OF THE REPUBLIC OF KOREA

FOR THE GOVERNMENT OF THE REPUBLIC OF COLOMBIA