Decoding the Colombian Supreme Court Ruling denying the recognition of the PV Investors v Kingdom of Spain Award: at the crossroads of investor protection

'The ready enforceability of arbitral awards is the single strongest component of the architecture that undergirds international arbitration.'[1] However, a recent decision of Colombia's Supreme Court ('Supreme Court') shakes this bedrock by denying recognition of an award against Spain under the Energy Charter Treaty ('ECT'). This article analyses the rejection of the application for recognition of the award filed by Swiss Renewable Power S.A.R.L ('Swiss Renewable') in which the Supreme Court held that Spain benefits from absolute immunity from enforcement measures in Colombia, despite it consenting to arbitration under the United Nations Commission on International Trade Law Rules ('UNCITRAL rules').

In examining the ruling, this article will provide background on the underlying renewable energy dispute. It will outline Colombia's legal framework for recognition of foreign awards and summarise the Supreme Court's analysis. The dissenting opinion will also be explored for its alternate perspective. Most importantly, this article will parse the Supreme Court's adherence to absolute enforcement immunity versus emerging doctrines on restrictive immunity and discuss the implications of the rigid stance taken. It will spotlight that the enforcement of investment arbitral awards under the New York Convention may be becoming more complex in Colombia. This highlights the need to reconsider Colombia's approach to sovereign immunity in the context of international arbitration.

Background

The investment dispute that underlies the arbitral award at issue arose from Spain's legislative reforms in the renewable energy sector. These legislative reforms led to arbitral awards with inconsistent approaches on certain issues, such as whether general regulations can give rise to specific commitments not to change the regulations.[2]

PV investors (including Swiss Renewable) initiated arbitration proceedings against Spain in 2012 under the ECT, alleging that Spain's new regulations violated some of the treaty protection afforded to investors. In 2020, the arbitral tribunal issued a final award[3] holding that '[a]lthough the claimants had no legitimate expectations that an immutable regulatory framework would protect their investments, the investors did have legitimate expectations to receive a reasonable return on their investment'; they were awarded EUR 90,000,000.[4] Swiss Renewable, as the claimants' assignee,[5] filed applications seeking recognition and enforcement of the PV Investors v Kingdom of Spain[6] Award in Brazil, the US and Colombia.

According to publicly available information, the Brazilian Superior Tribunal de Justiça's decision in response to Swiss Renewable's application for recognition and enforcement has yet to be issued.[7] On 24 February 2023, Swiss Renewable filed a petition with the US District Court for the District of Columbia seeking to confirm the PV Investors v Kingdom of Spain Award, which is also pending.[8]

However, in a previous case filed by AES Solar and others concerning the same award, the United States District Court for the District of Columbia refused to recognise it. The court held that it lacked subject-matter jurisdiction because under EU law, as determined by the Court of Justice of the European Union, Spain lacked the legal capacity to make a valid offer to arbitrate with the investors, which were EU investors. Without a valid arbitration agreement between the parties, the court could not recognise the tribunal's award.[9]

Colombia's legal framework on recognition of foreign awards and the Supreme Court's decision

The recognition and enforcement of international arbitration awards in Colombia is mainly governed by the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ('New York Convention'), which was approved in Colombia by means of Law 39, 1990. The Civil Chamber of the Supreme Court has jurisdiction to recognise awards between private parties, while the Council of State has jurisdiction over cases where a Colombian public entity is a party.[10]

In the first instance ruling, the Civil Chamber of the Supreme Court rejected Swiss Renewable's application seeking recognition of the PV Investors v Kingdom of Spain Award in Colombia. It concluded that it lacked jurisdiction to summon Spain as a defendant in Colombia: '[…] the matter raised is not one that in exempt from the principle of jurisdictional immunity that shields States and prevents them from being summoned before (other State's) Courts.'[11]

Swiss Renewable filed an appeal against the first instance decision, arguing that the Supreme Court invoked a non-existent ground for dismissal instead of entertaining the application after verifying formal requirements were met. It also argued that the Supreme Court incorrectly raised Spain's jurisdictional immunity sua sponte when Spain itself had waived immunity under the ECT and the New York Convention.

On 13 September 2023, the Supreme Court upheld its previous decision, reiterating its decision that it lacked jurisdiction over Spain.[12] It underscored that Swiss Renewable's application was actually seeking enforcement against Spain's assets in Colombia and it was not exempt from the customary international law principle of immunity from execution that shields States from foreign courts' coercive measures. The Supreme Court emphasised that Colombia lacks domestic legislation on State immunity: 'It is reiterated that Colombia lacks legal regulation on immunities - the United Nations Convention on Jurisdictional Immunities of States and Their Property of 2004 has not been incorporated into domestic law.'[13]

According to the Supreme Court, under customary international law, '[…] the contested principle of immunity from execution, prevents Colombian judges from enforcing a foreign judgment in Colombia - against the Kingdom of Spain.'[14]

Parsing jurisdictional immunity v enforcement immunity

The distinction between jurisdictional immunity and enforcement immunity became pivotal on appeal. The appeal ruling delved deeper into immunity concepts under customary international law and reiterated that Colombia lacks comprehensive domestic legislation codifying State immunity principles.

In sum, the Supreme Court considered that: (i) States' jurisdictional immunity is a procedural rule-prerogative based on principles such as sovereignty and is recognised as customary international law; (ii) there is also the more restrictive rule-prerogative of immunity from execution which aims to prevent coercive measures against foreign States' property; (iii) to overcome immunity from execution, there must be proof of a general or specific practice, uniform, consistent and generally accepted as law (opinio juris), that allows this prerogative to be disregarded; (iv) in this case, no such practice was proven that would weaken the prerogative of immunity from execution; (v) therefore, the immunity rule applies and Colombian judges cannot undertake execution measures against the Kingdom of Spain.

The dissenting opinion's perspective

In a dissenting opinion, Justice Luis Alonso Rico Puerta[15] agreed with the outcome of the decision but argued that additional analysis was required. He noted that Swiss Renewable had not yet sought any enforcement measures against Spain and had only filed for recognition under the New York Convention. Hence, he reasoned that while customary non-intervention principles generally prevent foreign arbitral awards from being enforced against other States, in this case the Supreme Court should have entertained the application, instead of rejecting it outright. Justice Rico Puerta also opined that the Supreme Court should have formally refused recognition under Article V(2)(b) of the New York Convention as it would be contrary to Colombia's public policy.

The dissenting opinion rightly cautions against conflating the recognition of an award with its enforcement. These are different legal phases and thus deserve separate analysis. When examining an application for recognition of a foreign arbitral award, courts should focus on whether basic requirements are met under relevant conventions and national law. According to Justice Rico Puerta, it was too early in the process to examine subsequent enforcement issues.

Implications of the ruling

The Supreme Court's reference to absolute immunity introduces a layer of complexity to the recognition and enforcement of investment arbitral awards under Colombian law.

Further, the Supreme Court missed an opportunity to establish a precedent on this matter beyond setting out the formalities that should be met at an early stage by anyone interested in getting an investment award recognised in Colombia. This contrasts with the more rigorous approach adopted by the United States District Court for the District of Columbia in AES Solar v Spain, in which it went beyond immunity arguments to analyse the validity of agreeing to intra-EU arbitrations under EU law. The Supreme Court refrained from referring to the highly complex issue of intra-EU BITs and the validity of their investor-State arbitration clauses. While the Supreme Court limited itself to immunity arguments, courts in other jurisdictions such as the US have delved deeper into the legal capacity to agree to arbitrations under the applicable law. Specifically, the US court engaged in an extensive analysis of the Komstroy case decided by the Court of Justice of the European Union,[16] which held that EU Member States lacked capacity to agree to intra-EU investor-State arbitration.

In particular, the Supreme Court missed a critical opportunity to analyse both how being a signatory to the New York Convention could entail a waiver of immunity, and the validity of arbitration agreements in intra-EU BITs post-Komstroy.

Spain, Switzerland and Colombia are all signatories to the New York Convention. According to precedents in other jurisdictions, when a State agrees to arbitration in another State it implicitly waives immunity from enforcement actions in contracting States to the New York Convention.

International conventions are often analysed in detail by domestic courts. For example, a persuasive precedent on arbitration agreements being held as waivers of jurisdictional immunity is found in a US District Court's memorandum opinion regarding enforcement of a Ukraine-Russia investment treaty award.[17] The US District Court held that by agreeing to arbitrate in France, a New York Convention signatory, Ukraine implicitly waived immunity in other signatories under the treaty. As the court explained, '[w]hen a country becomes a signatory to the Convention, by the very provisions of the Convention, the signatory state must have contemplated enforcement actions in other signatory states'[18] (quoting Creighton v Qatar)[19]. Since the award was made in Paris and governed by the New York Convention, Ukraine had presumptively waived immunity from enforcement actions in other signatory States such as the US. The rigid stance on sovereign immunity taken by the Court stands in contrast to the recent approach of the Australian Federal Court in CCDM Holdings, LLC v Republic of India. In that case, the Court held that India had waived its sovereign immunity by signing the New York Convention, allowing the Court to exercise jurisdiction over India to recognize and enforce an arbitral award against it.

The Supreme Court could have undertaken a comparable examination of the New York Convention principles, as well as the validity of the arbitration agreement in light of recent developments in intra-EU BITs. Since Spain agreed to arbitrate in Switzerland, the Supreme Court could have found there was a presumptive waiver of immunity in Colombia. However, it did not examine the validity of the arbitration agreement post-Komstroy, which was a key issue. This perspective would have showcased a meticulous, harmonised international law analysis befitting modern cross-border investment realities.

This ruling raises the question of whether enforcement of non-ICSID investment awards in Colombia may face higher hurdles compared to ICSID awards. The Supreme Court refused to enforce the award against Spain based on the customary international law doctrine of State immunity. Enforcement obligations are arguably clearer under Article 54(1) of the ICSID Convention, which requires Contracting States to recognise and enforce ICSID awards as if they were final judgments of a domestic court.

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[1] A. Bjorklund, et al, The Oxford Handbook of International Arbitration (Oxford University Press: 2020), p. 186.

[2] G. Bottini and O. Puigdemont, 'The Spanish Renewables Saga: jurisprudence inconstante?' (2020), Investment Arbitration Outlook (Issue 7) Uría Menéndez, p. 7.

[3] The PV Investors v The Kingdom of Spain, PCA Case n.º 2012-14, Final Award (28 February 2020) ('PV Investors v Kingdom of Spain').

[4] The PV Investors v Spain, PCA Case n.º 2012-14 ('PV Investors v Kingdom of Spain'), Final Award, para. 551 <https://jusmundi.com/en/document/pdf/decision/en-aes-solar-and-others-pv-investors-v-spain-final-award-friday-28th-february-2020> accessed 15 November 2023, and see also G. Bottini et al, 'Spain' in Global Arbitration Review - European Arbitration Review 2022 (Law Business Research), pp.131; 139.

[5] As stated in Swiss Renewable Power Partners S.à.r.l., in its capacity as assignee of: (1) Ceconat Energy Gmbh; (2) Eoxis Holding S.A.; (3) Impax New Energy Investors S.C.A.; and (4) Impax Solar Investment S.À.R.L. v Kingdom of Spain, US District Court for the District of Columbia, Petition to Confirm Arbitration Award, Civil Action n.º 23-512, 24 February 2023.

[6] PV Investors v Kingdom of Spain <https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/435/the-pv-investors-v-spain> accessed 15 November 2023.

[7] Swiss Renewable Power Partners S.A.R.L v Kingdom of Spain, Superior Court of Justice (Brazil), 8 March 2023, Homologação de Decisão Estrangeira n.º 7061 - EX (2022/0207938-8).

[8] Op cit, Fn. 5.

[9] AES Solar and Others (PV Investors) v The Kingdom of Spain ('AES Solar v Spain'), Opinion of the United States District Court for the District of Columbia, 29 March 2023, p. 1.

[10] Law 1563, 2012, Art. 61.

[11] Colombian Supreme Court of Justice, Civil Cassation Chamber AC3869-2022, Docket n.º 11001-02-03-000-2022-02569-00, Bogotá, D.C., 30 August 2022, Presiding Judge: Octavio Augusto Tejeiro Duque ('Court AC3869-2022') (loose translation from the original in Spanish).

[12] Colombian Supreme Court of Justice, Civil Cassation Chamber AC2305-2023, Docket n.º 11001-02-03-000-2022-02569-00, Bogotá, D.C., 13 September 2023, Presiding Judge: Francisco Ternera Barrios ('Court AC2305-2023').

[13] Ibid.

[14] Ibid.

[15] Luis Alonso Rico Puerta, Dissenting Opinion of the Court AC2305-2023 decision (Colombian Supreme Court of Justice, Civil Cassation Chamber, op cit Fn. 12).

[16] Republic of Moldova v Komstroy LLC, Judgment of the Court (Grand Chamber) of the European Union, 2 September 2021, Case n.º C-741/19, ECLI:EU:C:2021:655 ('Komstroy') <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62019CJ0741> accessed 15 November 2023.

[17] Tatneft v Ukraine, Civil Action n.º 17-582 (CKK), US District Court for the District of Columbia, Memorandum Opinion, 19 March 2018 <https://casetext.com/case/tatneft-v-ukraine-2> accessed 15 November 2023.

[18] Ibid.

[19] Creighton Limited v Government of the State of Qatar, US Court of Appeal, District of Columbia Circuit, Case n.º 98-7063, 2 July 1999 ('Creighton v Qatar').