Public Good or Private Commodity: Arbitration and the Privatization of Public Services in Latin America

By: Natalia Jaramillo 

1.              Introduction

Gabriel Garcia Marquez’s One Hundred Years of Solitude tells the story of mythical Macondo, a utopic town of fantasy created by the patriarch of the Buendía Family, where people lose their memory and resort to fortune tellers to understand their past.[1] For years the town is isolated from the outside world, dependent on its own, yet the protagonists seem to be controlled by the ghosts of their past, living in circular repetition.  The demise of Macondo comes in the form of a United States banana company that exploited, corrupted, and eventually destroyed the town.[2]  Looking at recent events in Colombian politics, one cannot help but wonder whether one of the nations most beloved novelists was forecasting the political and social history of the Colombian people and its relationship with foreign investors.[3]

Like most of Latin America, the Republic of Colombia (“Colombia”) is a thousand of contradictions in one. Although spared by the pendulum swings between military dictatorships and unstable civil governments that plagued its Andean neighbors, Colombian politics can best be categorized as a constant struggle between economic liberalism and populism.[4]

Following the prevalence of authoritarian, separatist regimes in the 1970’s, the rise of globalization, the severe sovereign debt crisis, and hyperinflation in 1980’s Latin America was an indication that the “nationalist” development model imbedded in the region was not sustainable in an increasingly globalized world.[5] Changes needed to be made, along with a legal system to encourage and protect foreign investors.  Two decades after the “no de Tokyo,” a pendular swing occurred and the 1990’s in Latin America was drastically at odds with the Calvo doctrine, marked by new investment flows and an overhaul of domestic policies.[6]

Colombia’s economic liberalization began with former President Virgilio Barco’s (“Barco”) administration. It was not, however, until 1990, under President Cesar Gaviria’s ( “Gaviria”) administration that the full implementation of the neo-liberal model took place.[7]  At the time, decentralization and subnational politics were flourishing throughout Latin America.[8]

Like most of Latin America, in Colombia, the transition from state interventionism to free market economies was a response to the economic troubles caused by the nationalist policies from the previous decades.[9] Assuming office in 1990, Gaviria campaigned on the promise to bring Colombia to the forefront of globalization and bring an end to the Colombian drug war.[10]  At the time, globalization was on the rise, there was an increase in international interest rates, the Colombian peso was devaluing, and Latin America was undergoing a debt crisis that caused the foreign debt in utilities to skyrocket.[11]  Gaviria and his successors were tasked with reevaluating the nationalist policies of the previous decades.  In office, Gaviria initiated a series of policy changes aimed at opening the Colombian economy, known as “la apertura.”  The political shift in attitudes toward foreign investment was followed by a change in the domestic legal system as well.

In line with the Gaviria administration’s economic opening, apertura, in 1991 the Constitution was reformed, introducing new rules for foreign investments, property rights relating to public services, and the development of infrastructure to support those public services.[12] Perhaps the more impactful regulatory reform took place in the public services sector, where private investments were granted entry for the first time in the country’s history.[13] With the reform came a set of regulatory commissions for Colombia’s public services: electricity and natural gas, water and sanitation, and telecommunication.

Alongside a new Constitution, Gaviria’s apertura and economic deregulation was part of a long-term strategy to improve the public sector and promote new roles for both public and private participants in Colombia. The idea behind it was sound: a four-year plan to expand external markets, increase capital while reducing import tariffs, creating market competitivity by forcing the domestic industries to adapt in more efficient and competitive ways.[14]  Yet, as imports fell and foreign capital inflows increased faster than expected, a four-year reform process was cut down to one.[15]  It was too much too fast.  Colombians were unable to compete with their new foreign counterparts.  Inflation increased, the currency appreciated, capital inflows increased, and Colombia entered a macroeconomic crisis.[16]     

As a result, Colombians have widely criticized the apertura and the 1990’s privatization scheme as ill prepared to deal with the national industries, and failing to provide support in the form of credit and training towards a more competitive and efficient market. In the case of the public services, opponents of privatization argue that public services are national property that should not be taken from the public sector and conducted as a profit-making business, especially considering that according to the 1991 Constitution, electricity, as all other public services, is an inherent right of the Colombian people.[17]

Furthermore, many point to the ongoing dispute between Spanish-owned electricity provider, in light of Gas Natural SDG S.A. and Gas Natural Fenosa Electricidad Colombia S.L. (“Fenosa”’)’s claim against Colombia as evidence that privatizing public services are not beneficial for the community.[18] Nonetheless, it does not seem as though Government officials have heard their complaints, considering President Ivan Duque’s plans to privatize government holdings in state-owned companies.[19]

This paper discusses why people across Latin America, specifically in Colombia, are so skeptical of privatizing public services despite its potential to improve the same public services they find deficient. It first provides a brief historical context of the laws that led to the Constitutional reform of 1991, which established the legal and institutional framework for the privatization of public services in Colombia.  It then discusses the Fenosa’s claims against Colombia, as well as, the allegations against Fenosa.  Lastly, it discusses the lessons that may be learned from the previous privatization period.

2.              Sector

a.              Historical Context: Framing the State in a Time of Transition

The Constitution of 1886 provided Colombia with formal political and judicial order.[20] The Constitution provided for democratic election for the President through national polls, a Senate elected through departmental elections, and a House of Representatives elected at the local district level.  However, this iteration of the Constitution did not provide guidelines on foreign investment.  Rather, privatization was largely illegal.[21]  It was not until 1967, through Decree No. 444, that foreign investment legislation began in Colombia.[22]

In line with the Calvo doctrine’s nationalist sentiment prevalent throughout Latin America at the time,[23] Decree No. 444 established a long list of requirements that foreign investors had to comply with to invest in Colombia, initiating a long period of restriction on foreign investments within the country.[24]

Looking to further restrict foreign investment and nationalize its industries, Decision No. 24 of 1973 made foreign investment illegal in areas that already being carried out by domestic corporations, and prohibited foreign investment in public services, insurance, and banking.[25]

Ten years later, under President Barco’s administration, the Commission of the Andean Pact enacted Decision No. 220/87, incorporated into the Colombian legislation by Resolution No. 44/47 and Decree No. 1265/87, replacing Decision No. 24, and imposing less restrictive rules on foreign investment.[26]  Among the important changes was that foreign investors were now authorized to own shares or ownership rights belonging to national investors.[27]

In 1991 the Constitution was reformed, providing that the government would promote the internalization of the economy and provide foreigners the same civil rights as nationals, a notable step away from the “no de Tokyo” of the previous decades.[28]

With the new Constitution came a set of institutional and regulatory reforms, paving the way for private companies to enter the Colombian market. Decision No. 291, of the Andean Pact Commission, eliminated all prior restrictions on foreign direct investment imposed by Decision No. 24 as well as provided investors the same rights and obligations as national investors.[29]

Law No. 9/91 provided the executive branch with the authority to regulate all foreign exchange affairs.[30] It also empowered the Consejo Nacional de Politica Economica y Social (“COMPES”) to regulate the investment regime in Colombia.[31]  To support these important changes, COMPES thereafter enacted Resolution No. 51 of 1991 (and the resolution and decrees that modify it), known today as Colombia’s foreign investment law.[32]

Although private foreign investment was by then legal, the forms of such participation in the public sector has varied largely on the categories of each sector.

With the changes in the domestic laws to welcome foreign investments came a growing acceptance of arbitration as well. Recognizing the necessity and inherent benefits of globalism – and with it, the dispute resolution mechanisms provided for in international arbitration – in 1993, Colombia signed the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the “ICSID Convention”), giving foreign investors a more secure mechanism to settle their disputes.[33]  Prior to the apertura, and in line with the Calvo doctrine, private foreign investments in Colombia were forced to resolve their disputes in national courts.[34]

b.             A New Type of Private Foreign Investment: Public Services

In the midst of this economic openness policy, in March 1992, Colombia experienced the longest blackout in over thirty years.[35] While some attributed the blackout to the “el Niño phenomenon[,]” ultimately it was “poor sectoral planning, poor economic performance, and inadequate regulatory policy [that] exacerbated the1992 crisis.”[36]

Prior to 1995, Colombia’s public services were mostly monopolized and nationalized as a result of significant expansion of electricity-generation capacity between 1970 and 1990—financed mostly by foreign loans.[37] By 1990, about one-third of the nation’s public foreign debt was associated with the electricity sector.[38]

To sustain the basic needs of its citizens, Colombia welcomed private foreign investment in its public sectors for the first time in the country’s history. In support of these objectives, three main laws were enacted: the Privatization Law, Law No. 226 of 1995, the Public Services Law, Law No. 142 of 1994, (“Law No. 142”), and the Electricity law, Law No.  143 of 1994, (“Law No. 143”).[39]

Law No. 142 regulates all aspects related to energy as a public utility, while Law No. 143 (which came into operation in mid-1995) establishes the legal regime applicable to the generation, interconnection, transmission, commercialization of electricity and the wholesale electricity market.

Moreover, Law No. 143 notes that “all the activities that involve the supply chain of electricity, from generation to commercialization, are intended to satisfy primary collective needs on a permanent basis and [] considered as mandatory public utilities, essential in nature.”[40] Article 34 of Law No. 143 mandates that all public utility companies must refrain from undertaking any act or transaction that has the capacity, purpose or effect of generating unfair trade or restricting competition or abuse of dominant position.[41]

Additionally, Law 142 notes that household utilities are not provided free of charge.[42] However, the 1991 Constitution notes that electricity, as all other public services is an inherent right of the Colombian people; meaning that the government is bound to guarantee the provision of such services but does not have to be the provider.[43]

The new legislation emphasized the Government’s role as a regulatory agency, ordering it to set up a flexible legislation vis-à-vis public contracting and concessions regimes. Moreover, the new Constitution provided the State the power to regulate the general economy; mandating it to intervene in certain economic activities, such as the provision of public services.[44] Ultimately, the regime was structured as a way to channel new investments in public infrastructure and ease government burden on industrial restructurings, one of the major causes of the 1992 blackouts.[45]

The regulatory reform was clear in its intent to promote private foreign investment in the power sector as a means to ensure market competition and improve the country’s power sector as a whole. Moreover, the reform sought to recover operational capacity in the power sector, avoiding future power shortages while increasing administrative, operative, and financial efficiencies.

3.              Discussion

a.              Like Rock’n Roll, Nationalism is Considered to be Dead, and it Keeps Reviving.

Within the past decade, public services in Colombia have undergone a process of deep transformation, going from state-owned monopoly to free markets albeit regulated by the Government.[46]

In the electrical sector, the apertura led companies to be auctioned or sold such as: Termotasajero, Termocartagena, Epsa, Electrocaribe, the hydraulics of Chivor and Betania, as well as the Electricity Power Company of Bogota.[47] However, the full privatization of Ecopetrol, a key state company has never been achieved largely due to the State’s constant struggle with Ecopetrol’s union, whom is strictly against privatization.[48]

Between 2000 and 2002, electricity, gas and water investments contributed 7.9 per cent of total influx of foreign investment.[49] Conversely, by mid-2011, electricity, gas and water investments only amounted to 4 percent of Colombia’s total FDI inflow.[50]

As highlighted in Table 1, below, by 2003, the top 13 largest companies in Colombia were all foreign owned.Among them, 3 were related to public services and 6 to energy.

Table 1: Largest Companies in Colombia, 2003[51]

  Affiliate Home country Activity
1. Exxon Mobil de Colombia S.A. USA Energy, oil, gas
2. Texas Petroleum Co.  Colombia USA Energy, oil, gas
3. Citibank Colombia S.A. USA Banking
4. BP Exploration Co. (Colombia) Ltd. UK Oil exploration and extraction
5. General Motors Colmotores S.A. USA Car assembly
6. BBV Banco Ganadero S.A. Spain Banking
7. Drummond Ltd., Sucursal Colombia USA Coal
8. Emgesa S.A.  ES.P. Spain Generation of Electricity
9. Bellsouth USA Telecommunications
10. SOFASA S.A. France Car assembly
11. Oleoducto Central S.A.  Ocensa Canada Gas pipeline
12. Nestlé de Colombia S.A. Switzerland Food and beverage
13. COMCEL Comunicacion Celular SA Canada Telecommunications

Yet, as highlighted in Table 2 below, over time, Colombians have increasingly restricted private foreign investment in public services, highlighting a revival of the nationalist sentiment of the previous decades. Of the top 13 largest companies in Colombia in 2019, 4 are state-owned, and, unsurprisingly, all 4 are public service or energy companies.

Table 2: Largest Companies in Colombia 2019[52]

  Affiliate Home country Activity
1. Ecopetrol State owned Energy, oil, gas
2. Grupo Exito Brazil Consumer retail
3. Organizacion Terpel Chile Energy, oil, gas
4. Grupo EPM State owned Electricity, water, gas, telecommunications
5. Avianca Holdings Panama Airline
6. Grupo Argos Colombia Cement manufacturing
7. Refineria de Cartagena State owned Energy, oil, gas
8. Grupo Nutresa Colombia Food processing
9. Cementos Argos Colombia Cement manufacturing
10. Claro Móvil Mexico Telecommunications
11. Grupo Enel Italy Electricity and gas operators
12. Bavaria UK Beer and Tabacco
13. ISA State owned Electricity

Perhaps one of the strongest reasons for this is the negative view that Latin American’s have on privatization, stemming from the Calvo Doctrine’s prevalence in Latin America prior to the 1990’s privatization scheme.[53]

In a 2007 round of polling by Latinobarometro, an annual public opinion survey performed since 1998, only 30 percent of Latin Americans said they were “satisfied or very satisfied” with the results of the privatization of public services.[54]By 2012 Latinobarometro reported that “the perception that privatization has benefited the country has never exceeded 50 percent.”[55]  Additionally, less than 40 percent of those surveyed noted their satisfaction with the privatized public services today.[56]  Many blame the countries poor economic growth on the neo-liberal policies introduced by Gaviria’s apertura and later deepened under Ernesto Samper’s (“Samper”) administration, notwithstanding Samper’s original campaign promise to “shift away from fast-track economic reformed introduced by the last administration.”[57]

While the apertura may have put Colombia at the forefront of globalization, doing so quickly and at a time where the domestic industries were unable to compete created a concentration of power and wealth, which in turn generated more poverty than ever before.[58] During his first two years in office, Gaviria reduced import taxes from 43.7 percent to 11.4 percent and abolished the list of forbidden imports.[59] As a result, the local industries were flooded with imported cheaply manufactured goods.[60]  Many local producers went bankrupt as a result of the unequal conditions offered to their foreign competitors.[61]

Globalization requires industries to compete and be efficient, but the Gaviria administration failed to consider the domestic industries, whom were not ready to compete on a globalized scale and at such a fast pace, leading many to fall victim to globalization.[62] As a result, unemployment levels in Colombia rose drastically and the effects on the domestic industries can still be felt to this day.[63]  Between 2007 and 2008 international investors reported a 19 percent growth, while the Colombian national economy reported a decreased in growth from 7.5 percent to 2.5 percent.[64]

Furthermore, at the time, much of the development projects done by private investors in Colombia and throughout Latin America at the time was being funded by various loans through the Inter-American Development Bank, causing Colombia’s foreign debt to increase while benefitting the private companies and hurting Colombian industries.[65]

To illustrate, Spain’s Fenosa entered the Colombian market in early 2000, progressively acquiring over 85 percent of Electrificadora del Caribe SA, a utility company that distributed and commercialized electricity throughout Colombia’s coast.[66] However, Fenosa’s entry into the Spanish market was paved by the Spanish government, whom had just finalized the Colombia-Spain Bilateral Investment Treaty (“BIT”), and was offering generous funds through the Inter-American Development Bank, to the “Mesoamerican Project,” which includes the development of the System of Electric Interconnnection of Central America (SIEPAC), of which Colombia is part.[67]  Thus, Spain’s foreign aid increased Colombia’s debt while benefitting a private Spanish company.[68]

b.             Gas Natural SDG and Gas Natural Fenosa Electricidad Colombia SL v. Republic of Colombia

In 2017, Fenosa, initiated arbitral proceedings against Colombia, under the Colombia-Spain BIT.[69] Fensosa alleges that Colombia expropriated its electricity provider, Electrificadora del Caribe SA (“Electricaribe”), a subsidiary company of Fenosa.[70]  Further, Fenosa demands restitution of what it believes to be over one billion dollars in defaulted security payments, which it claims to be debt that has accumulated due to the “culture of avoidance present in the region.”[71]  Among the one billion dollars Fenosa claims is owed is a 45-million-dollar debt owed by public entities.[72]

In November 2016, the Superintendent of Residential Public Services, Colombia’s public utilities regulator, took control of Electricaribe in what it alleges to be efforts to shield the company from its temporary liquidity problems and ensure its future viability.[73] Considering the Government’s Constitutional mandate to intervene in certain economic activities, such as the provision of public services, with the purpose of improving the quality of life of its inhabitants, Fenosa’s temporary liquidity problems seem to fit that definition.[74]  However, Fenosa “considers that the acquisition by Colombia constitutes an expropriation without compensation.”[75]

Four months after the temporary seizure, the Superintendent of Residential Public Services ordered the liquidation of Electricaribe.[76] Subsequently, Fenosa’s 85 percent share was up for sale, and in March 2020, it was announced that the Public Companies of Medellín ESP (“EPM”) and Consorcio Energía de la Costa won the auction for the operation of the electric power service in the region where Electricaribe once operated.[77]

Among the new operators’ obligations is a five-year US$ 5.8 billion investment plan aimed at improving networks, stations, and the general infrastructure of the electrical services throughout the region.[78] In ten years, that investment is projected to be a total of US$ 8.7 billion.[79]

Nevertheless, Fenosa’s claim against Colombia is not as clear-cut as it would like to portray. In fact, Colombia is countersuing Fenosa for the damages Fenosa has caused the country for its poor management of Electrocaribe.[80]

Dating back to its entry into the Colombian market in early 2000’s, Fenosa has been accused by numerous civil society and human rights organizations of a wide range of human rights abuses throughout Colombia. In 2000, Fenosa was accused of the murders of trade unionist and anti-privatization activists, bribing politicians, cutting power lines without prior notice or respect of due process, as well as, raising rates and leaving broad social sectors within Colombia marginalized from electricity, a violation of the Colombian Constitution.[81]  Moreover, Fenosa has been accused of subcontracting payment collection to local companies that are controlled of paramilitary groups within Colombia, leading to an increase in violence in an already fragile region.[82]

The Constitutional reform of 1991 was clear by indicating that private investors in Colombia are responsible for the maintenance and appraisal of its installations throughout the course of its investment. Yet, since it’s entry into the Colombian market, Fenosa has been accused of the opposite: there are at least 150 registered deaths per year caused by poor maintenance Fenosa’s electricity cables.[83]

While the privatization of public services may have been a good idea on paper, the case of Gas Natural SDG and Gas Natural Fenosa Electricidad Colombia SL v. Republic of Colombia represents a reality that many in Colombia have had to deal with. From the foreign investors’ point of view, a society with a “culture of avoidance,” that led to its eventual collapse in the country.[84]  From the society’s point of view, an exploitation of Colombia’s resources for foreign gain.  Thus, the pendulum swings again.

4.              Implications

In March 2018, now President Ivan Duque (“Duque”) campaigned on the promise to make adjustments to the controversial peace deal with the FARC, cut corporate tax rates, and launch measures to reactivate the sluggish economy.[85]Duque’s win represented continuity.[86]  A former executive at the Inter-American Development Bank, Duque was one of several centre-right leaders to win in Latin America, as the leftist, nationalist policies of the past decade retreated.[87]

By the end of 2018, Duque had raised funds on the bond market for creative economy startups and had incentivized small businesses with tax breaks.[88]

However, an already fragile economy coupled with the large-scale migration from Venezuela have made keeping up with campaign promises and constitutional obligations increasingly difficult.[89] The country is struggling to meet it fiscal debt rule,[90] and in March of 2019, the Fiscal Rule Advisory Committee allowed the deficit to be widened to keep up with the country’s needs.[91]

Looking for ways to improve Colombia’s finances, Duque’s administration announced plans to privatize government holdings in state owned companies.[92] As of May 2019, it was reported that the government was preparing to sell some or all of its 51 percent stake in electric utility ISA, a sale that would be worth around US$ 2.7 billion, as well as, a ten to twelve percent stake in oil producer Ecopetrol, and regional electric companies.[93]

While some believe Duque may have no other option, privatizing such companies may come both at a significant political cost to Duque and financial cost to Colombia, considering the aftermath of the previous privatization period.[94] Like in Gabriel Garcia Marquez’s Macondo, Colombia is haunted by its past, even as it aims to move forward.[95]

Nonetheless, even with the resurgence of nationalist sentiments throughout Colombia and Latin America, the twenty-first century is drastically marked by the flow of capital, making foreign investments and cross border transactions a reality. However, like Macondo, Colombian society will be haunted by its past and there will always be a lingering reservation with regards to foreign investment, and the inherent benefits of globalism.

[1] Gabriel Garcia Marquez, One Hundred Years of Solitude (1st. ed. 1967).

[2] Id., The climax of One Hundred Years of Solitude is based on true event, the 1928 Banana Massacre, where the Colombian military opened fire on plantation workers who were striking for better wages and working conditions from their foreign employer, the United Fruit Company.

[3] Eduardo Posada-Carbo, Fiction as History: The Bananeras and Gabriel Garcia Marquez’s One Hundred Years of Solitude, Journal of Latin American Studies395-414 (30 No. 2, 1998), (“Gabriel Garcia Marquez himself has encouraged the view that his work is a reflection of reality.  In a 1968 interview he noted: “Lo que pasa, es que en America Latina, por decreto se olvida un acontecimiento como tres mil muertos.  Esto que parece fantastico, este extraido de la mas miserable realidad cotidiana.”).

[4] James A.  Robinson, A Normal Latin American Country? A Perspective on Colombian Development Harvard (Nov. 21, 2005), ; see also Chris Kraul, The pendulum swings: Here’s how Latin America has shifted politically over the years, LA Times (July 1, 2016), (last visited April 26, 2020) (“[In the 1980’s][t]he region was dominated by right-wing military regimes that seized power to quash leftist insurgencies in Brazil, Argentina, Bolivia and elsewhere.  By the middle of the decade, however, the balance of power shifted to the left as citizens rebelled against authoritarianism.  But the transition was short-lived as the free-market economic policies favored by Washington took hold, and by 1995 the left was shut out again, with the 10 presidencies evenly split between the right and the center.  After free-market policies failed to deliver prosperity and poverty reductions, a new era for the left began with the election of Hugo Chavez in Venezuela in 1998.  Socialists were elected in Bolivia, Brazil and Ecuador, their social welfare programs fueled by high prices for oil, soybeans, coal, copper and other commodities.  By 2008, the left held eight of the 10 presidencies.”).

[5] See e.g., Consuelo Ahumada & Christina Andews, The Impact of Globalisation on Latin America: The Case of Brazil and Colombia 454 Adm.  Theory and Praxis Vol.  20 No. 4.  (Dec.,1998,  (“The debt crisis in the early 1980’s that affected most Latin American countries is key to understanding the process of implementation of the neo-liberal agenda in the region.  During the last decade, Latin America paid almost US$ 224 billion to service foreign debt.  Nevertheless, at the end of 1996, the joint debt of the region reached at US$ 656.5 billion.  Latin American countries were paying, as debt service, an amount equal to one third of their revenues from exports.”).

[6] Emerging in the early twentieth century, the Calvo doctrine materialized during an era when Latin American countries had convinced themselves of the threat by the intrusive forces in North America.  At the time, large foreign-owned companies were exploiting the natural resources of smaller and politically unstable countries in Latin America.  During discussions for the establishment of the ICSID Center in 1964, Latin American countries formed a position later known as the “no de Tokyo,” and nineteen countries voted against it.  See e.g., Jonathan C.  Hamilton, Three Decades of Latin American Commercial Arbitration, 30 U.  PA.  J.  Intl.  L.  Rev. 1099, 1101 (2009); Andreas F.  Lowenfeld, International Economic Law 541 (2d ed., 2008).

[7] Consuelo Ahumada, supra note 5 at 452-467.

[8] Latin American countries were undergoing intense political changes, enacting new constitutions (Brazil in 1988, Colombia in 1991, Paraguay in 1992, Ecuador in 1998 and 2008, Peru in 1993, Venezuela in 1999), or introducing major reforms to their existing constitutions (Argentina in 1994, Mexico in 1992, and Costa Rica in 1989).  See Rodrigo Uprimny, The Recent Transformation of Constitutional Law in Latin America: Trends and Challenges, 89 Texas L.  Rev. 1587 (2011); Constituição Federal [C.F.] [Constitution]; Constitución Política De Colombia [C.P.] (Colom.); Constitución de La República Del Paraguay [Para.Const.]; Constitución Política De la República Del Ecuador 1998 (Superceded2008); Constitución Política Del Estado República Del Peru [Peru Const.]; Constitución De La República Bolivariana De Venezuela [Venez.  Const.]; Constitución Política Del Estado De Bolivia [Bol.Const.]; Constitución Nacional [Const.  Nac.] (Amended 1994); Constitución Política De Los Estados Unidos Mexicanos [C.P.], as amended, Diario Oficial de la Federación [DO], 5 de febrero de 1917 (Mex.).  See also Jose Luis Soberanes Fernandez, Mexico and the 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 2002 Byu L.  Rev. 435, 448–50 (discussing the 1992 amendments to the Mexican constitution); Constitución Política De La República De Costa Rica [Costa Rica Const.]; see also Bruce M.  Wilson, Changing Dynamics: The Political Impact of Costa Rica’s Constitutional Court, The Judicialization Of Politics In Latin America, 47, 49–50 (Rachel Sieder et al.  eds., 2005) (discussing the 1989 amendments to the Costa Rica constitution).


[9] See Rodrigo Uprimny, The Recent Transformation of Constitutional Law in Latin America: Trends and Challenges, 89 Texas L.  Rev. 1594-1596 (2011); Tulia G.  Falleti, Decentralization and Subnational Politics in Latin America 124-170 (1st ed. 2010).

[10] James Brooke, Gaviria’s Gamble, New York Times (Oct.  13, 1991),

[11] Trade and Foreign Direct Investment (Annual Report), WTO Secretariat, 1 (Oct.  9, 1996), . 

[12] See e.g., Jennifer S.  Holmes, Sheila Amin Gutiérrez de Piñeres & Kevin M.  Curtin, Guns, Drugs, and Development in Colombia, U.  of Texas Press 42 (2008); The new Constitution became effective on July 5, 1991.  Constitucion Politica De Colombia Art. 380.  [hereinafter colom.  Const.].

[13] The apertura led companies to be auctioned or sold, such as: Termotasajero, Termocartagena, Epsa, Electrocaribe, the hydraulics of Chivor and Betania, as well as the Electricity Power Company of Bogota.  See Consuelo Ahumada, supra note 5.

[14] Id.  at. 43.

[15] Id.

[16] Large capital inflows during the early 1990s caused the peso to appreciate by more than twenty percent from 1992 to 1998.  An appreciated peso made imported consumer goods and capital cheaper and hurt domestic import substitution industries and the export sector, weakening growth and employment.  Id., citing Jośe Echavarría, Maria Angelica Arbeláez & Alejanro Gaviria, Recent Economic History of Colombia, Alberto Alesina, Institutional Reforms: the Case of Colombia, MIT Press (2005).

[17] Chapter 5 of title XII is dedicated to the ‘social purpose of the state and public services.’ Colom.  Const.  Art. 365.  While the Constitution does not define public services, Article 430 of the Labor Code defines it as “any organized activity that aims to satisfy the needs of general interest in a regular and continuous way, whether undertaken tby the State, directly or indirectly, or by private persons.  Public services are, inter alia: the legislative, executive and judicial powers; utility providers of water, electricity, and telecommunications […].” See Labour Code, Diario Oficial [D.O.  9-09-1959] (Colom.)(adopted by Decree-Law 2664 of 1959, published and entered into force on 9 Sept.  1959), Art. 430, modified by Extraordinary Decree 753 of 1956.

[18] Gas Natural SDG and Gas Natural Fenosa Electricidad Colombia SL v Republic of Colombia, ICSID Case No UNCT/18/1, UNCITRAL.

[19] See e.g., Ezra Fieser & Oscar Medina, Colombia Preps Privatization of $5 Billion Electric Utility ISA, Bloomberg (14 May 2019), (last visited 20 April 2020).

[20] See William C.  Banks & Edgar Alvarez, The New Colombian Constitution: Democratic Victory or Popular Surrender?, 23 U.  Miami Inter-Am.  L.  Rev. 39 (1991),

[21] Decree No. 444 of March 22, 1967, Diario Oficial [D.O 06.04.1967] (Colom.)

[22] Roberto Steiner & Ursula Geidon, Foreign Direct Investment in Latin America 137 (Manuel R Argosin ed.) (1995).

[23] Argentine jurist Carlos Calvo created a precedent in legal doctrine, which spread throughout Latin America based on nationalism.  The Calvo doctrine requires that legal disputes involving foreign investors be resolved by local remedies, rather than by remedies not available to nationals of the state such as arbitration.  If a dispute arises, foreigners should go to national courts, like everyone else.  Many Latin American countries have favored this approach, as they believe international arbitration to be an infringement on their sovereignty.  See Horacio A.  Grigers Naón, Arbitration in Latin America: Overcoming Traditional Hostility (An Update), 22 U.  Miami Inter-Am.  L.  Rev. 203 (1991); see also supra note 5.

[24] Every investment required a previous approval of the National Planning Office (Departamento Administrativo de Planeacion, DNP).  The DNP had to evaluate the new investment to determine if the investment was convenient for Colombia.  Among the aspects that were considered the effect on employment generation of the investment, the net effect in the balance of payments, the use of raw materials and other domestic products by the foreign investment, the existence of domestic capital in the investment and the contribution of the investment to the Andean integration.  See Decree No. 444 of March 22, 1967, Diario Oficial [D.O 06.04.1967] art.110 (Colom.)No. art. .  Decree No. 444 also established that once the investment was admitted, it had to be registered in the Exchange Office (Oficina de Cambios) to repatriate any profit gained by the investment.  The profit remittance was limited to 10% of the registered capital, and the repatriation of the capital was limited to the value of the net investment.  Any increase in the investment amount was not allowed to repatriate.  See Decree No. 444/1967 art. 116.

[25] Andean Pact, Decision No. 24/73 16 ILM 138 (1977); Decision No. 24/ 71 art. 37.

[26] John R Pate, Introductory Notes of Decision No. 220/87 of the Andean Pact, 27 ILM 974, 975 (1988).

[27] Decision No. 220/87, art. 427 ILM 980 (1988).

[28] Colom.  Const, art 100, 226-227. (1991). See also Id. note 5.

[29] Andean Pact Decision No.No. 291/91 art. 2., SICE  (March 21, 1991),

[30] Law No. 9/91 of January 17, 1991, Diario Oficial [D.O 17.01.1991] arts. 1, 3, 15 (Colom.)

[31] Id.

[32] Resolution No. 51 has been modified by Resolution No. 52/91, Resolutions No. 53,55,56 and 57/92, Resolution No. 60/93 of the COMPES and Decree No. 2348/93, Decree No. 98/94, Decree No. 1812/94, Decree No. 2012/94, Decree No. 2764/94, Decree No. 517/95, Decree No. 1295/96, Decree No. 1874/98 and Decree No. 241/99.

[33] Convention on the Settlement of Investment Disputes between States and Nationals of Other States, opened for signatures Mar.  18, 1965, 17 U.S.T.  1270, T.I.A.S.  No. 6090, 575 U.N.T.S.  159 (cited as “the ICSID Convention”).

[34] Supra note 5; supra note 23.

[35] Carlos Pombo, Regulatory reform in Colombia’s electric utilities, Borradores De Investigación Universidad Del Rosario 685 (2001) (“The first two ended up in a generalized financial insolvency of the regional power companies, the sector’s over indebtedness, the lack of development of new thermal capacity generation along with the shutting down of existing thermal plants.”).

[36] Id.

[37] Roberto Steiner & Hernán Vallejo, Public Utilities,Colombia, a Country Study, Federal Research Division, Library of Congress 168 (2010),

[38] Id.

[39] Law No. 142 of July 11, 1994 Diario Oficial [D.O 11.07.1994] (Colom.) (modified by Law No. 689 of 2001) establishes Colombia’s regime of domestic public services, fixing rules and principles of economic competition for the regulated services and empowering the President of the Republic to allow the regulatory commissions (potable water and basic health; combustible gas and energy; and telecommunications) to develop the applicable standards in each sector.  See Law 142 of 1994 (published on 11 July 1994, entered into force 11 July 1994). See also The 1991 Constitutional Reform and Laws 142 and 143 of 1994 bring Colombia largely to compliance with the GATS commitments.

[40] Law 143 of July 12,1994, Diario Oficial [D.O 12.07.1994] (Colom.)

[41]Law 143 of July 12,1994, Diario Oficial [D.O 12.07.1994] (Colom.), Art. 34.

[42] Law No. 142 of July 11, 1994 Diario Oficial [D.O 11.07.1994] (Colom.).

[43] Id.; Colom.  Const., Art. 365.

[44] Colom.  Const., Art. 334.

[45] Carlos Pombo, Privatization in Colombia: A Plant Performance Analysis, Universidad de los Andes 16-20 (June, 2003),

[46] Tulia G.  Falleti, supra note 9.

[47] Consuelo Ahumada, supra note 5 at 462.

[48] Id., see also Wes M.  Tomaselli, Colombia’s Finances are Strained. Is Privatization the Next Step? Americas Quarterly (May 14, 2019),; Alberto Chong, On the Social Effects of Privatizations in Latin America, Privatization for the Public Good? Welfare Effects of Private Intervention in Latin America, inter-American development Bank (Dec.2007),

[49] ECLAC, Information Centre of the Unit on Investment and Corporate Strategies, Division of Production, Productivity and Management, and ECLAC/ UCLA (2002).  Statistical Abstract of Latin America on the basis of figures provided by the Andean Community and the central banks of the member countries.

[50] OECD Investment Policy Reviews: Colombia 2012, OECD  (April 11,2012),

[51] Las 1000 empresas más grandes de Colombia, Revista Cambio – Confecamaras (2003); Investment Policy Review: Colombia , UNCTAD (July, 2006),

[52] Las 1000 empresas más grandes de Colombia, Revista Semana (2019).  See also EcoPetrol Ownership Structure as of Jul.  5, 2019,; Grupo Exito, Main Shareholders – Ownership Structure as of Dec 31, 2019,  Organizacion Terpel S.A., Corporate Presentation: Ownership Structure 4 (May 2016),; Grupo EMP Ownership Structure,  (last visited 3 April 2020); Ownership Structure: Avianca Holdings S.A., (last visited 27 April 2020);  Company Profile: Refinería de Cartagena S.A.  (Reficar), BnAmericas, (last visited 3 April 2020); Grupo Nuestra, Corporate Presentation/Fact Sheet,,(last visited 3 April 2020); Cementos Argos: Shareholder Structure, (last visited 3 April 2020); Business Summary: AMÉRICA MÓVIL, S.A.B.  DE C.V. (AMX L), Market Screener,; Enel, Who We Are?, (last visited 17 April 2020); Dan Bilefsky & Jason Singer, SABMiller to Acquire Colombian Brewer In $5.6 Billion Deal, Wall Street Journal (19 July 2005),; Interconexión Eléctrica S.A.  E.S.P ISA, Corporate Framework, (last visited 17 April 2020).

[53] See supra note 5.

[54] Alberto Chong, supra note 50.

[55] Lenin Balza, Raul Jimenez & Jorge Mercado, Privatization, Institutional Reform, and Performance in the Latin American Electricity Sector, Inter-American Development Bank 3 (Dec., 2013),

[56] Id.

[57] Jośe Echavarría, Maria Angelica Arbeláez & Alejanro Gaviria, Recent Economic History of Colombia,Alberto Alesina, Institutional Reforms: the Case of Colombia, MIT Press (2005).  See also Consuelo Ahumada, supra note 5 at 462 (“While in 1988 total debt amounted to US$ 16 billion, in 1997, it rose to US$ 31.2 billion, an amount representing one-third of the total goods and services production of the country.  Thirty two percent of the total budget of 1998 will be used to pay for the debt service […] In the meantime, the deficit in the balance of payments’ current account, resulting from the liberalization of imports and the increasing debt, is currently 5.8 percent of the GNP [in 1998], one of the highest in the world.”).  See also Cathleen Farrell, New Colombian President to Slow Economic Reform, The Christian Science Monitor (9 Aug.  1994),

[58] By May 1998, unemployment levels in Colombia reached 15.6 percent, and by January 1999 unemployment 19.5 percent.  See Más Desempleo Con Más Ocupación, El Tiempo (04 July 2001),.

[59] Jeff Browitt, Capital punishment: the Fragmentation of Colombia and the Crisis of the Nation-State 1068 Third World Quarterly (22 Vol.  6. 2001),

[60] Id.

[61] Id. at 1063 (“In the first half of 1999, over 70 major companies and 3600 small businesses went to the wall.  With very little growth in gross domestic product over the past three years and an official unemployment level over 20%[…][C]olombia owes more than US$ 17 billion to foreign creditors and debt servicing along (more than US$ 2 billion annually) accounts for nearly 40% of the national budget.”)

[62] Jennifer S.  Holmes, supra note 12.

[63] See supra note 50.

[64] Republic of Colombia Annual Report (Form 18K), SEC at 1 (Sept.  10, 2008),

[65] Almut Schilling Vacaflor, New Constitutionalism in Latin America: Promises and Practices 338 (1st.  ed., 2012).

[66]See e.g., James A.  Robinson, The Misery in Colombia (2015), Harvard

[67] Bilateral Investment Treaty Colombia – Spain, Sept.6,1995,—spain-bit-1995- ; See also Jeff Browitt, supra note 61.

[68] Id.

[69]Colombia – Spain BIT, supra note 69.

[70] Gas Natural SDG and Gas Natural Fenosa Electricidad Colombia SL v Republic of Colombia, ICSID Case No UNCT/18/1, UNCITRAL.

[71] Jeannette Neumann, Spain’s Gas Natural Files Suit Against Colombia as Investor-State Disputes Rise, The Wall Street Journal ( Mar.22, 2017), (last visited 26 April 2020).

[72] Id.

[73] Sally Palomino, Colombian government takes over Spanish-controlled power firm, El Pais (Nov.16, 2016).  (Last visited 26 April 2020).

[74] See Colom. Const., Art. 334.; see also Socio-Economic Human Rights in Essential Public Services Provision 257 (Marlies Hesselman et al.  eds., 2017).

[75] Gas Natural sues Colombia before a UN court for Electricaribe, The Diplomat in Spain (Mar.23, 2017),

[76] See e.g., Gas Natural formaliza su demanda contra Colombia, Portofolio ( July 24, 2018),; see also Colombian gov’t orders liquidation of Gas Natural Fenosa’s Electricaribe unit, EFE ( Mar.14, 2017), (“The Colombian government had placed Electricaribe in receivership on Nov. 15.  “The liquidation of Electricaribe is ordered,; SSP superintendant Jose Miguel Mendoza said in a press conference, adding that the agency had launched a search for “an operator to take over providing service” in seven provinces on Colombia’s Atlantic coast.  Electricaribe “is in no condition to provide electric service with the quality and reliability required,” Mendoza said.”).

[77] EPM and Consorcio Energía de la Costa will operate electric power service in the Caribbean region, announces Superservicios, BN Americas (Mar.20, 2020),

[78] Id.

[79] Id.

[80] Mauricio Collazos, Colombia contrademandó por $1.7 billones a Gas Natural Fenosa por caso Electricaribe, RCN Radio (Dec.17, 2019), (“Aunque aún no se ha definido el monto económico que Colombia exigirá como reparación, la defensa del país, impulsada por la Agencia Nacional de Defensa Jurídica del Estado (Andje) se prepara para argumentar que, contrario a lo que dice Fenosa de que los expropiaron de su filial en la costa Caribe, la intervención de la Superintendencia de Servicios Públicos, sí se podía hacer, también se explicarán los perjuicios que el mal servicio de la empresa le causó al país.”) [Although the amount that Colombia will demand as reparation has not yet been defined, the country’s defense, promoted by the National Agency for Legal Defense of the State (Andje), is preparing to argue that, contrary to what Fenosa says […]damages that the company’s poor service caused to the country]; see also Colombia contrademandó a Gas Natural Fenosa por caso Electricaribe, El Tiempo (17 Dec.  2018),

[81] See e.g., Frente a FENOSA en defense del Agua y Energia, Comisión Intereclesial De Justicia Y Paz (Dec.10, 2004),; Almut Schilling, supra note 67 at 338,344.

[82] César Molinares Dueñas & Tadeo Martínez, Sucedió en la república independiente de la sombrerona.  Paramilitares y conflicto armado en Colombia (Dec.  16, 2008),

[83] Claudia Müller-Hoff, How does the New Constitutionalism Respond to the Human Rights Challenges Posed by Transnational Corporations? in Almut Schilling-Vacaflor, New Constitutionalism in Latin America: Promises and Practices 338.

[84] Jeannette Neumann, supra note 74.

[85] Helen Murphy & Julia S.  Cobb, Duque becomes Colombia’s president, promising to unite divided nation, Reuters (Aug. 7, 2018),

[86] Duque is seen as a populist conservatist.  See Jose Ospina-Valencia, Is there a right-wing surge in South America?, Deutsche Welle (DW) (Oct.  28, 2018).   In Chile, conservative Sebastian Piñera won the presidential election.  See Chile election: Conservative Piñera elected president, BBC News (Dec.  18, 2017),; in Brazil, far right candidate Jair Bolaonaro won the 2018 election.  See Flora Charner & Marcia Revordosa, Far-right candidate Jair Bolsonaro wins presidential election in Brazil, CNN World (Oct.29, 2018),

[87] Id., see also Patricio Navia, Why are Latin America’s Right-Wing Governments Struggling? Americas Quarterly ( Oct.3, 2017), (“After a decade in which most countries in Latin America were ruled by left-wing governments, today only Venezuela, Bolivia and Nicaragua neatly fit into that category… The rightward electoral shift can be partially attributed to the downturn in the economic cycle and the end of the export commodity boom.  After more than a decade of favorable terms of trade for Latin American countries, declining prices for commodity exports have put fiscal pressure on cash-strapped governments.  Meanwhile, social needs are increasing and the demand for additional government spending keeps rising.”).

[88] Wes M.  Tomaselli, supra note 50.


[89] The Colombian Constitutional Court declared that foreigners enjoy the same rights in the constitution as do nationals.  See Constitutional Court, May 15, 1996, Judgement T-216/96,  The Court further held that the right to healthcare is a fundamental right.  See Constitutional Court, Aug.  28, 2018, Judgement T-348/18: Derecho A La Salud Y Afiliacion A La Seguridad Social De Extranjeros No Regularizados,

[90] A budget target written into the Constitution which places limits on the structural fiscal debt of the central government.  See Nelson Bocanegra, Colombia to maintain original fiscal targets for 2019 and 2020 -Finmin, Reuters (June 11, 2019),

[91] See Jared Wade, Colombian President Iván Duque Takes Office in a Divided Nation with a Recovering Economy, Finance Colombia (Aug.8, 2018), (“Colombia’s gross domestic product (GDP) increased by 1.8% in 2017, the lowest level since the height of the global financial crisis in 2009 and well below the potential highs above 6.5% last registered in 2014 (and three times since 2006)… Most notably, the new administration will face difficulty in abiding by the governing fiscal rule that mandates an ongoing reduction in the nation’s fiscal-deficit-to-GDP ratio.  Last year, the country was able to push this ratio below the outlined threshold of 3.6%.  But this rate must drop further in 2018 and beyond, and hitting the figure last year was achieved, at least in part, due to one factor outside of the government’s control (rising global oil prices) and a one-time unexpected windfall (nearly US$1.5 billion in telecom fines).”).

[92] Id.

[93] Ezra Fieser & Oscar Medina, supra note 19.

[94] Ecopetrol’s union wants full nationalization and would likely politicize the sale.  See Wes M.  Tomaselli, supra note 50; Alberto Chong, supra note 50.

[95] On April 28, 2020 Colombia officially became the 37th Member country to the Organization for Economic Co-operation and Development (OECD), making it the third Member country from the Latin American region, following Chile and Mexico.  See The OECD and Colombia: A mutually beneficial relationship, OECD, (last visited 30 April 2020).

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