Foreign Investment between international and domestic law: Translation of Judgement C-252/2019 of the Colombian Constitutional.

International investment law is based on a global network of approximately 3.300 International Investment Agreements (iias), including bits and ftas.1 These treaties have a common core structure which usually includes the following clauses: a definition of investor and investment, treatment standards (National Treatment, Most Favoured Nation, Fair and Equitable Treatment), protection against direct and indirect expropriation, and a dispute resolution clause that refers to arbitration.2 These clauses offer the usual protection to the economic rights of foreign investors. iias’ clauses are characterised by their technicity as well as their broadness, which oftentimes make the interpretation process complex and its result unforeseeable. States might foresee a regulatory action as legal, but investors could see something different, thus triggering an arbitration claim that could result in an unexpectedly huge compensation in their favour. Also, some scholars see an encryption that embodies the iias3 which grants wide protection and a prompt and effective response to the investors’ interests that could cause that the Host-State refrains from the exercise of its regulatory sovereign privilege for fear of being sued by foreign investors (a regulatory chill scenario).4 Considering this scenario, it has been alleged that the Investor-State Dispute Settlement (isds) system requires some changes because it is perceived that it favours an unbalanced relationship between the rights of investors and the rights of States.5 One of the concerns that has been pointed out and discussed is the way to achieve consistency in interpreting investment agreements with a certain level of legitimacy.6 In other words, the issue is how to interpret iias without affecting the Host-State’s right to regulate and grant an optimum level of protection to investors. Some of these changes have begun to be shaped by national courts when considering the constitutionality of investment treaties prior to their ratification. This authority has been considered as a tool for providing clarity to the rights of investors vis a vis the police powers and the right of Host-States to regulate. It is in this context that Judgment C-252/19 of the Colombian Constitutional Court, which analysed the constitutionality of the bit signed between Colombia and France on 2014, should be studied.