Abstract

ALVAREZ CONTRERAS, JUAN MIGUEL. The Constitutional Review of International Investment Agreements and the Protection of the Right to Equal Treatment of Domestic Investors. Rev. Derecho Estado [online]. 2022, n.52, pp.409-440.  Epub Jan 15, 2023. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n52.13.

The present article assesses the role of the Colombian constitutional judge in the protection of the right to equal treatment of domestic investors against the International Investment Agreements (IIA) concluded by Colombia. Globally, IIA have been accused of creating discriminatory treatments against domestic investors by providing foreign investors with more favorable procedural and substantial rights. Even though the Colombian Constitutional Court has always been in charge of conducting the constitutional review of the IIA concluded by Colombia, only recently, in the context of the review of the IIA concluded with France and Israel, the Court used its constitutional powers to address the alleged violation of the right to equal treatment of the local investors as a consequence of the conclusion of IIA. The article analyzes the manner in which the Constitutional Court conducted the constitutional review of the IIA with France and Israel, particularly regarding its decisions to protect the right to equal treatment of domestic investors. The author concludes that the constitutional judge, prompted by the willingness to take part in the modern debate about IIA, may have overlooked the nature and historical context of these treaties and its own case law on the protection of the right to equal treatment. Furthermore, the article shows that the Constitutional Court did not apply its standard of review in a uniform and consist manner with regard to all the provisions of the IIA, and that its decisions create new issues that may become in obstacles for the negotiation and conclusion of IIA by the Colombian government in the future.

Keywords : International Investment Agreements (IIA); Bilateral Investment Treaties (BIT); investment chapters in Free Trade Agreements (FTA); right to equal treatment; Colombian Constitutional Court; investor-State investment dispute settlement.

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