8. Once the investor has submitted the dispute to one of the litigants fora set out in paragraph 5 the choice shall be final.(15)
9. The consent under paragraph 7 and the submission of a claim to arbitration under this section shall satisfy the requirements of:
(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules for written consent of the Parties to the dispute; and
(b) Article II of the New York Convention for a "written agreement ".
(15) If a future international agreement of trade or investment in force for either of the Parties is empowered to investors, even after submission of the dispute to local courts, the possibility to proceed with any of the arbitration mechanisms provided for in this article, that Party shall permit in the same terms of this Agreement to an investor covered by this Agreement.
10. For the purposes of article I of the New York Convention, it shall be considered that the claim is submitted to arbitration under this section, arises out of a commercial relationship or transaction.
Article 14. Constitution of the Arbitral Tribunal
1. Unless the parties to the dispute otherwise agree, the arbitral tribunal shall be composed of three arbitrators. Each Party shall appoint an arbitrator and agree to appoint a third arbitrator who shall not be a national of any of the Parties and shall chair the Tribunal. If the arbitral tribunal has not been constituted within 90 days from the date on which the claim was submitted to arbitration, either because a contending party did not choose its arbitrator or because the contending parties do not reach an agreement on the President, the Secretary-General, at the request of either party, shall appoint, at its discretion and in consultation with the parties to the conflict, the arbitrator or arbitrators not appointed. When the Secretary-General appoints the Chair shall ensure that he or she is not a national of any of the Parties.
2. Arbitrators shall:
(a) Have experience or expertise in International Law, International Trade Law and International Investment Law;
(b) Be independent of the Parties and the contending investor and not be affiliated or receive instructions from any of them;
3. The parties may agree on the fees to be paid to the arbitrators.
Article 15. Place of Arbitration
Unless the parties involved so agree otherwise, the tribunal shall determine the place of arbitration in accordance with the applicable arbitration rules, provided that the place shall be in the territory of a party to the New York Convention.
Article 16. The Arbitral Proceedings
1. A tribunal established under this section shall decide the issues in dispute in accordance with this Agreement and the rules and principles of International Law.
2. Without prejudice to the power of the Tribunal to hear other objections as a preliminary issues, such as an objection that the dispute is not within the jurisdiction of the Court, the court shall hear and decide any question as a preliminary objection by the respondent that as a matter of law, a claim submitted is not a claim for which an award can be made in favour of the investor in accordance with article 18.
(a) Such objection shall be submitted to the Tribunal as soon as possible after the Tribunal is constituted and in any event, after the deadline set by the Tribunal for the respondent to submit its response Memorial (or in the case of an amendment to the notice of arbitration, the Tribunal fixes the date for the respondent to submit its response to the amendment).
(b) When an objection under this paragraph is submitted, the Tribunal shall suspend any proceedings on the merits of the case, shall establish a schedule for the objection consistent with any schedule it has established for considering any preliminary question and will issue a decision or award on the objection, containing a statement of the reasons.
(c) In deciding an objection under this paragraph, the Tribunal shall assume to certain facts presented by the contending investor as a basis of any claim in the notice of arbitration (or any amendment thereof) and in disputes brought under the UNCITRAL Arbitration Rules, the facts presented by the contending investor in the statement of claim referred to in article under the UNCITRAL Arbitration Rules. The Tribunal may also consider any relevant fact which has not been contested.
(d) The respondent does not waive any objection as to competence or any argument on the merits, whether or not it makes an objection under this paragraph or make use of the expedited procedure set out in paragraph 3(16)
3. In the event that the respondent so requests within 45 days after the Tribunal is established, the Tribunal shall decide on an expedited basis an objection under paragraph 2 and any objection that the dispute is not within the competence of the Tribunal. The Tribunal shall suspend any proceedings on the merits and not later than 150 days after the date of such a request, shall deliver a reasoned decision or award on the objection(s). However, if a Party requests a hearing the Tribunal may take an additional 30 days to issue the decision or award. Regardless of whether a hearing is requested, the Tribunal shall show a special reason to postpone the issuance of its decision or award by an additional brief period which may not exceed 30 days,
(16) For greater certainty, this includes any objection or any argument with respect to article 29.
4. When deciding on the objection of the respondent party, the Tribunal shall rule on the costs and attorneys fees incurred during the proceeding. The Tribunal may, if it is warranted, rule in favour of the opposing side appropriate reasonable costs and attorneys fees incurred in submitting or opposing the objection. The Tribunal shall consider whether the claim of the claimant or the objection of the respondent is frivolous and shall give to the contending parties a reasonable opportunity for comments. In the case of a claim is frivolous or an objection was frivolous the Tribunal shall rule on the costs and attorneys fees incurred during the proceeding, taking into consideration if the claim or the objection was frivolous.
Article 17. Measures of Protection and Provisional Diplommatic Channels
1. Neither party shall prevent the applicant of a request for interim measures of protection to any one of the fora referred to in paragraph 5 of Article 13 for the preservation of its rights and interests, provided that such measures do not involve the payment of damages or resolution of the substance of the dispute before the judicial or administrative tribunals of the respondent party.
2. Neither party shall give diplomatic protection, or bring an international claim in respect of a dispute which one of its investors and the other party shall have consented to submit or have submitted to arbitration under this section unless the other party has failed to comply with the award rendered in such dispute. Diplomatic protection for the purposes of this paragraph, shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute.
Article 18. Award
Footnote (17)
1. When a tribunal issues a final award unfavourable to the complaining Party only the tribunal may grant separately or in combination:
(17) In accordance with international law and where relevant and appropriate, the Tribunal shall take into account the law of the respondent party. However, the court is competent to determine the legality of a measure in accordance with this Agreement and the principles of international law, the Tribunal shall not be competent to rule on the Legality of the measure as a matter of domestic law.
(a) Monetary damages and interest, and
(b) Restitution of property in which case the award shall provide that the respondent party may pay monetary damages and interest that originate in lieu of restitution.
2. A tribunal may also award costs and attorney fees in accordance with this section and the applicable arbitration rules.
3. A tribunal may not award punitive damages.
4. Any arbitral award shall be final and binding to the parties to the dispute. Each Party shall ensure the recognition and enforcement of the award in accordance with its applicable laws and regulations.
5. When a claim is submitted on behalf of an enterprise of the respondent party, the arbitral award shall be on the company.
6. In any arbitration conducted pursuant to this section, at the request of either of the contending parties, the court, before making a decision or award on liability, shall transmit its proposed decision or award to the parties to the conflict. Within 60 days after such proposed decision or award warring parties may submit written comments to the Tribunal concerning any aspect of its proposed decision or award. The Tribunal shall consider any such comments and issue its decision or award not later than 45 days after the expiration of the 60 days comment.
Article 19. Accumulation
1. In cases in which two or more claims have been submitted to arbitration separately under this section and the claims raised in a common question of fact or law and arise out of the same events or circumstances, any party to the dispute may seek a consolidation order in accordance with the agreement of all parties involved in respect of which the order is sought or cumulation in accordance with the terms of this article.
2. The opposing side seeking a consolidation order under this article shall deliver a written request to the Secretary-General and to all the contending parties against which the order is sought cumulation and shall specify in the request: the names and addresses of all the contending parties against which the order is sought accumulation; the nature of the order sought; and the axcumulation grounds supporting the request.
3. Unless within thirty days after receiving a request under paragraph 2 the Secretary-General determines that it is manifestly unfounded, the Tribunal shall be established under this article.
4. Unless all parties involved in the order of accumulation decide otherwise, the Tribunal established under this article shall be composed of three arbitrators.
(a) One arbitrator appointed by agreement of the contending investors;
(b) One arbitrator appointed by the respondent; and
(c) The Chairman of the arbitral tribunal who shall be appointed by the Secretary-General, provided however that the Chairman shall not be a national of one of the Parties.
5. If within 60 days after the Secretary-General receives a request made under paragraph 2 to the respondent party or parties investors fail to appoint an arbitrator in accordance with paragraph 4, the Secretary-General, at the request of any party combatant covered by the order of cumulation shall appoint the arbitrator or arbitrators not yet appointed.
6. When a tribunal established under this article has verified that two or more claims that have been submitted to arbitration under article 13 (arbitral proceedings), have a question of law or fact in common arising out of the same events or circumstances, the Tribunal may in the interest of fair and efficient resolution of the claims and after consulting the parties - through procedural order:
(a) Assume jurisdiction and hear and determine together all or part of the claims;
(b) Assume jurisdiction and hear and determine one or more of the claims, which will support for the resolution of the other claims; or
(c) Instruct a tribunal previously established under article 14 (Constitution of the Tribunal) to assume jurisdiction to hear and determine jointly, on the whole or part of the claims, provided that:
(i) The Tribunal, at the request of any contending investor recovers with its original members, provided that the applicant has not been previously opposing side before that Court and except for the appointment of the arbitrator the contending investor shall follow the procedure referred to in paragraphs 4 (a) and 5; and
(ii) That Tribunal shall decide whether any prior hearing shall be repeated.
7. When a tribunal has been established under this article, a contending investor who has submitted a claim to arbitration under article 13 (arbitral procedure) and that has not been involved in the application of accumulation of paragraph 2, may submit a written request to the Tribunal that it would be taken into account through any order made under paragraph 6, specifying:
(a) Name and address;
(b) The nature of the order sought; and
(c) The reasons for the request.
The requesting party shall deliver the request and a copy thereof to the Secretary-General.
8. A tribunal established under this article shall conduct its proceedings in accordance with the UNCITRAL Arbitration Rules, except as modified by this section.
9. A tribunal established under article 14 (Establishment of the Arbitral Tribunal) does not have jurisdiction to decide a claim or a part of a claim over which a tribunal established under this article has assumed jurisdiction.
10. At the request of a contending Party a Tribunal established under this article may, pending its decision under paragraph 6, provide that the proceedings of a tribunal established under article 14 (Constitution of the Tribunal) be suspended, unless the latter has already suspended procedures.
Article 20. Delivery of Documents
Delivery of a notice and other documents to a party shall be made to the named place for that Party in Annex 3.
Second section: settlement of disputes between the parties
Article 21. Scope of Application
This section applies to the settlement of disputes between the parties arising out of the interpretation or application of the provisions of this Agreement.
Article 22. Consultations
1. Any Party may request in writing, consultations on the interpretation or application of this Agreement. If a dispute arises between the parties concerning the interpretation and application of this agreement should, as far as possible be settled amicably through consultations.
2. When the dispute is not resolved by the tool referred to in the preceding paragraph within six months from the written request for consultations, either party may refer the dispute to an ad hoc arbitral tribunal established under this section or by agreement of the Parties, to another international tribunal.
Article 23. Constitution of the Arbitral Tribunal
1. The Arbitral Tribunal shall consist of three members.
2. The arbitral proceedings shall be initiated by a written notification provided by a party (hereinafter referred to as the "applicant") to the other party (hereinafter referred to as the "respondent party"). Such notification shall express the provisions of chapter II alleged to have been breached; the legal and factual basis for the claim, a summary of the development and the results of consultations and negotiations under article 22 (consultations), the intention of the requesting Party to initiate proceedings under this section and the name of the arbitrator appointed by that Party.
3. Within 30 days of the delivery of the notification, the responding party shall notify the requesting party of the name of the arbitrator appointed.
4. Within 30 days from the date of appointment of the second arbitrator, the Parties shall designate by common agreement the third arbitrator who shall be the Chair of the arbitral tribunal. In the event that the parties are unable to reach agreement on the appointment of the third arbitrator, the arbitrators appointed by the Contracting Parties shall, within 60 days, appoint the third arbitrator. The third arbitrator shall not be a national of any of the Parties.
5. Arbitrators shall:
(a) Have experience or expertise in International Law, International Trade Law and International Law of investments; or
(b) Be independent of the Parties and the contending investor and not be affiliated or receive instructions from any of them;
6. The parties may agree on the fees to be paid to the arbitrators.
7. If within the periods specified in paragraphs 3 and 4 of this article have not been completed the necessary appointments, any Party may, unless otherwise agreed, request the President of the International Court of Justice to make the necessary appointments. If the President of the International Court of Justice, for any reason, is prevented from discharging the said function or if that person is a national of either party, the appointment shall be made by the Vice-President of the International Court of Justice, and if the latter is prevented or if that person is a national of either party, the appointment shall be made by the member of the International Court of Justice to continue in seniority who is not a national of either party.
8. If an arbitrator appointed under this article resigns originating or unable to act as a successor shall be appointed in the same manner as prescribed for the appointment of the original arbitrator and he or she shall have the same powers and duties of the original arbitrator.
9. Each Party shall bear the costs of its appointed arbitrator and of any legal representation in the proceeding. The costs of the Chairman of the arbitral tribunal and other expenses associated with the conduct of the arbitration shall be borne in equal parts, unless the arbitral tribunal decides that a higher proportion of costs be borne by one of the Parties.
Article 24. Place of Arbitration
Unless the parties agree otherwise, the place of arbitration shall be determined by the Tribunal.
Article 25. The Arbitral Proceedings
1. A tribunal established under this section shall decide the issues in its jurisdiction and subject to any agreement between the parties, shall determine its own procedure. At any stage of the proceedings of the arbitral tribunal may propose to the parties that the dispute be settled amicably. At any time, the arbitral tribunal shall ensure a fair hearing to the parties.
2. The arbitral tribunal shall decide the issues in dispute in accordance with this Agreement and the rules and principles of International Law.
3. The tribunal shall reach its decision by a majority of votes. the award shall be in writing and shall set out the findings of fact and law. a signed copy of the award shall be delivered to each party.
4. The decision of the Tribunal shall be final and binding to the parties.
Article 26. Delivery of Documents
The delivery of notices and other documents to a party shall be done in the place designated by This Annex 3.
Article 27. General Exceptions
1. Provided that such measures are not applied in a manner that constitutes arbitrary or unjustifiable discrimination against the other party or their investors when it is applied to similar conditions, or a disguised restriction on investments of investors of the other party in the territory of a party, nothing in this Agreement shall be construed to prevent a Party from adopting or implementing measures:
(a) Necessary to protect moral or to maintain public order(18);
(b) Necessary to protect the life and health of individuals and animal or plants(19);
(c) Necessary to secure compliance with laws and regulations that are not inconsistent with the provisions of this Agreement including those relating to:
i) The prevention of fraudulent practices or misleading practices and to deal with the effects of a default on contracts;
ii) The protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
iii) The security;
(d) Related to the conservation of exhaustible natural resources if such measures are applied in conjunction with restrictions on domestic production or consumption.
(18) The public order exception may be invoked only when a genuine and sufficiently serious threat to one of the fundamental interests of society.
(19) The Parties understand that the measures of paragraph 1 (b) of this article include environmental measures necessary to protect human, animal or plant life or health.
2. Notwithstanding any other provision of this Agreement, a Party shall not be prevented from taking measures for prudential reasons, including the protection of investors, depositors, policy-holders, settlers, or to ensure the integrity and stability of the financial system. When such measures do not conform to the provisions of this Agreement shall not be used as a means of avoiding party's commitments or obligations under this Agreement.
Article 28. Security Exceptions
1. Nothing in this Agreement shall be construed as:
(a) To require a party to provide access to any information the disclosure of which would be contrary to its essential security interests;
(b) To prevent a Party from taking measures which it considers necessary for the protection of its essential security interests:
(i) Relating to the manufacture of weapons, ammunition and implements of war;
(ii) Relating to the supply of services direct or indirectly to ensure the supply of a military establishment;
(iii) Relating to fissionable and fusionable materials or to those in which they are derived;
(iv) Issued in time of war or other emergency in international relations.
(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.
2. For greater certainty, nothing in this Agreement shall be construed as preventing a party from taking measures that it considers necessary for the protection of its critical public infrastructure, including but not limited to, the communications infrastructure, energy, water or deliberate attempts which pretend to disable or damage such infrastructure.
Article 29. Denial of Benefits
Subject to prior notification, a Party may deny the benefits of this Agreement to an investor of the other Party that is an enterprise of such party and to the investments of the investor where such party establishes that the enterprise is owned or controlled by persons of a country that is not a party, or of denying the party; and has no substantive business operations in the territory of the other party.
Article 30. Entry Into Force, Duration and Termination
1. Each Party shall notify the other party of the fulfillment of the domestic legal requirements for the entry into force of this Agreement. This Agreement shall enter into force thirty days after the notification of the latter party.
2. This Agreement may be amended by mutual consent of the Parties in writing. The amendments shall enter into force in accordance with the same legal procedure prescribed under the first paragraph of the present article.
3. This Agreement shall remain in force for a period of ten years and shall continue in force thereafter unless after the expiry of the initial period of nine years, either party notifies the other party in writing of its intention to terminate this Agreement. The notice of termination shall be effective one year after it has been received by the other party
4. With respect to investments admitted prior to the date when the notice of termination becomes effective, the provisions of this Agreement shall remain in force for an additional 10 years from that date.
Signed in Bogotá, Colombia, on 16 July 2013, in two originals in the English and Spanish languages, each text being equally authentic. In case of any divergence, the English text shall prevail.
Conclusion
For the Government of the Republic of Singapore Lim Hng Kiang Minister of Commerce and Industry, For the Government of the Republic of Colombia Sergio Diaz-Granados Guida Minister of Commerce, Industry and Tourism
Attachments
1. Notwithstanding the exclusion of public debt of the definition of "investment" in article 1 (definitions) public debt operations are subject to articles 5 and 6) (National Treatment (most-favoured-nation treatment). No award may be made in favor of a claimant for a claim submitted to arbitration under article 13 (arbitral proceedings) with respect to default or non-payment of public debt operations, unless the claimant can prove that such default or non-payment constitutes a breach of articles 5 (National Treatment) and 6 (most-favoured-nation treatment)
2. For greater certainty, a claim submitted to arbitration under article 13 (arbitral proceedings) for violation of obligations under Articles 5 (National Treatment) and 6 (most-favoured-nation treatment), with respect to default or non-payment of public debt operations shall be based only on the breach of the obligations set out in articles and not be based on the violation of any other article of Chapter II and article 7 (expropriation).
The Parties confirm their mutual understanding that:
1. An action or a measure or a series of actions or measures by a party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or property interest in an investment.
2. Paragraph 1 of article 7 (expropriation) addresses two situations. The first is where an expropriation, direct investment is expropriated or nationalized otherwise directly through formal transfer of title or the right of ownership.
3. The second situation addressed by paragraph 1 of article 7 (expropriation) is indirect expropriation, where an act or measure or a series of actions or measures of a Party has an effect equivalent to expropriation without direct formal transfer of title or the right of ownership.
4. It is understood that:
(a) The determination of whether an action or measure or a series of actions or measures of a Party in a specific fact situation, constitutes an indirect expropriation requires a factual investigation, case by case, such determination shall include:
(i) The economic impact of the Government Action although the fact that an action or measure or action or series of actions by a Party has an adverse effect on the economic value of an investment alone does not establish that an indirect expropriation has occurred;
(ii) The extent to which the Government Action interferes with unambiguous expectations and reasonable investment; and
(iii) The character of the measure or action or series of actions or governmental measures
(b) Non-discriminatory regulatory actions or measures of a Party that are designed and applied to protect legitimate public welfare objectives (20), such as public health, safety and environment do not constitute indirect expropriations; except in exceptional circumstances as when such acts are so severe that they cannot reasonably be viewed as adopted and applied in good faith to achieve its objectives.
(20) For greater certainty, the list of "public welfare objectives" in subparagraph is not exhaustive
The Republic of Singapore
The place of delivery of the notice of intent and other documents relating to the settlement of disputes between the parties and the settlement of disputes between a party and an investor, the Republic of Singapore is:
Director (Clúster of International Trade.
Ministry of Commerce and Industry 100 High Street # 09-01 179434 Singapore
The Republic of Colombia
The place of delivery of the notice of intent and other documents relating to the settlement of disputes between the parties and the settlement of disputes between a party and an investor in the Republic of Colombia is:
Department of Foreign Investment Services and Ministry of Commerce, Industry and Tourism street 28 # 13 Bogotá A-15 D.C Colombia