On 6 June 2019, the Colombian Constitutional Court announced its long-awaited decision (made public 2 July 2019) regarding the constitutionality of the 2014 Colombia – France Bilateral Investment Treaty (BIT). Using an innovative line of reasoning, the Colombian Court did not only rule on whether or not this text was constitutional. It further declared the BIT to be “conditionally constitutional” [condicionalmente exequible], requiring the issue of a joint interpretative note that would clarify the meaning of several standards of treatment contained in the BIT.
This is not the first time that a constitutional adjudicator has analyzed international investment agreements. In Europe, for instance, resistance to International Investment Agreements (IIAs), such as the Comprehensive Economic and Trade Agreement between Canada and the European Union (CETA), has been framed in constitutional terms. However, there are several factors which point to the importance of this judgement not only for the two countries involved but also, more broadly, for the way multilateralism is understood.
The Court decision and the remedy of ‘conditioned constitutionality’
On 10 July 2014, France and Colombia signed a BIT in order to establish a legal framework for foreign investment. In line with updates to other investment agreements in recent years, the revised Colombia – France BIT incorporates a series of features that aim to protect the regulatory space of states. However, the treaty also contains clauses that have been criticized (see here) for not protecting the interests of a developing state such as Colombia.
After a detailed analysis of all the provisions in the BIT and the arguments for and against the declaration of constitutionality, the Court decided that the treaty was compatible with the Colombian Constitution. However, for some clauses of the BIT, it made the declaration of constitutionality conditional on the implementation of a future interpretative declaration of the two countries that would clarify the meaning of the words used to draft substantive standards of treatment. The Court sketched its methodology in the following way: Read the rest of this entry…