WASHINGTON – Today Ambassador Katherine Tai met with Minister Luis Carlos Reyes of Colombia’s Ministry of Trade, Industry, and Tourism to welcome agreement of the United States and Colombia on a decision of the Free Trade Commission (FTC) of the United States-Colombia Trade Promotion Agreement (TPA) interpreting provisions of the TPA investment chapter.
The FTC decision reflects the longstanding U.S. understanding of its investment commitments under the TPA. Those U.S. systemic positions are already reflected in the updated investment provisions of U.S. agreements, like the United States-Mexico-Canada Agreement (USMCA) (as approved by the Congress and entered into force in 2020) and the United States-Korea Free Trade Agreement (KORUS) (as amended in 2018), and expressed consistently by the United States in non-disputing party filings in investor-State dispute settlement (ISDS) arbitrations. The decision does not modify the TPA, nor does it create new commitments or narrow existing ones. Rather, the decision reflects the longstanding U.S. understanding of the standards of investment protection under the TPA.
“Like President Biden, I oppose the ability of private corporations to attack labor, health, and environmental policies through ISDS,” said Ambassador Tai. “This decision with Colombia demonstrates our willingness to use tools under existing agreements to ensure arbitrators adhere to the U.S. understanding of its commitments and seek to address concerns about ISDS.”
The FTC decision contains interpretations of the TPA investment chapter provisions on national treatment (TPA Article 10.3), most-favored-nation treatment (TPA Article 10.4), minimum standard of treatment (TPA Article 10.5 and Annex 10-A), expropriation and compensation (TPA Article 10.7 and Annex 10-B), investment and environment (TPA Article 10.11), submission of a claim to arbitration (TPA Article 10.16), governing law (TPA Article 10.22), and definitions (TPA Article 10.28). As noted, these interpretations have all been previously expressed in the USMCA, the KORUS, and U.S. filings in ISDS arbitrations.
As stated in Article 10.22.3 of the TPA, a decision of the FTC declaring its interpretation of a provision of the TPA “shall be binding” on an ISDS tribunal, and thus, “any decision or award issued by a tribunal must be consistent with” that decision.
The full text of the FTC decision can be found here
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