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Decision of the Canada-Colombia Joint Commission - Interpretation of Certain Chapter Eight Provisions

The Joint Commission, acting under subparagraph 3(a) of Article 2001 of the Canada鈥慍olombia Free Trade Agreement (hereinafter, the "Agreement"), reviewed Chapter Eight of the Agreement. In this respect, the Joint Commission decided that Articles 803, 804 and 805 be authoritatively interpreted as follows in order to clarify and reaffirm their meaning:

1. Investment and Regulatory Measures
   For the purpose of Chapter Eight, the Parties reaffirm the right of each Party to regulate within its territory to achieve legitimate policy objectives, such as the promotion or protection of safety, health, the environment, cultural diversity or gender equality, or social or consumer protection.
2. National Treatment and Most-Favoured-Nation Treatment
   1. Whether treatment is accorded in "like circumstances" under Articles 803 and 804 depends on the totality of the circumstances, including whether the relevant treatment distinguishes between investors or covered investments on the basis of legitimate policy objectives.
   2. The "treatment" referred to in Article 804 does not include procedures for the resolution of investment disputes between investors and States provided for in other international investment treaties and other trade agreements. In addition, substantive obligations in other international investment treaties and other trade agreements do not in themselves constitute "treatment", and thus cannot give rise to a breach of Article 804, absent measures adopted or maintained by a Party.
3. Minimum Standard of Treatment in Accordance with International Law
   1. The concept of "full protection and security" in Article 805 refers to a Party's obligations relating to the physical security of investors and covered investments.
   2. If an investor of a Party submits a claim under Section B of Chapter Eight, including a claim alleging that a Party has breached Article 805, the investor has the burden of proving all elements of its claim, consistent with general principles of international law applicable to international arbitration. This includes the burden to prove a rule of customary international law invoked under Article 805, through evidence of the elements of customary international law referred to in footnote 2 of Chapter Eight.

Closing provision

The adoption by the Joint Commission of this or any future interpretation does not indicate an absence of agreement between the Parties about other matters of interpretation of the Agreement.

Decided by the Joint Commission at Ottawa this 24 day of October 2017, and signed in duplicate in the English, French and Spanish languages, each version being equally valid.

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Representative of Canada on the Joint Commission

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Representative of Colombia on the Joint Commission