1 See Colombia FTA, Office of the United States Trade Representative, http://www.ustr.gov/trade-agreements/ free-trade-agreements/colombia-fta. 2 See U.S.-Colombia Trade Promotion Agreement: Potential Economy-wide and Selected Sectoral Effects, U.S. International Trade Commission, Investigation No. TA-2104-023, UsiTC Publication 3896, Dec. 2006, xv, http://www.usitc.gov/publications/docs/pubs/2104F/pub3896.pdf. ' See id. at 1-3. See Colombia FiA, Office ofthc United States Trade Representative. http://www.ttstr.gov/trade-agreements/ free-trade-agrecments/colombia-fta. See United States-Colombia Trade Promotion Agreement Implementation Act, H.R. 5724, Apr. 8, 2008. See, e.g., Statement by AFL-CIO President John Sweeney On Increase qf Violence Against Colombian Trade Unionists, American Federation of Labor and Congress of Industrial Organizations, Sept. 10, 2008, http://www.citizenstrade.org/pdf/2008-09/20080912_jjs%20violencc'){,20scpt.pdf ("It is unconscionable that the Colombian government is continuing to expend significant resources here in Washington to lobby for passage of the U.S.-Colombia Free Trade Agreement as the violence facing trade unionists in Colombia escalates, the problem of impunity for perpetrators of that violence persists, and labor law reform is stalled."); Midland joins U.S. and Colombian Labor Leaders to Speak Out Against Colombian FTA, The Online Office of Congressman Mike Michaud, May 13, 2008, http://www.michaud.house.gov/index.php?option=com content&task=view&id=112&1teiiiid=76

(noting that "the Colombia FTA rewards a country whose record of violence against union organizers is nothing short of disgraceful"). See, e.g., Latter of the US Senate, Human Rights Watch, May 19, 2008, http://www.hrw.org/en/news/ 2008/OS/19/Icttcr-us-senate ("[A]ny free trade agreement should be based on respect for fundamental human rights, particularly the rights of the workers producing the goods to be traded. Colombia still does not meet that standard due to the high levels of violence against trade unionists, the near-total impunity for that violence, and the government's failure to fully dismantle the paramilitary groups that are primarily responsible for that violence."); John Nichols, Colombia Trade Flight is a Human Rights I'est, The Nation, Apr. 11, 2008, http://www.citizcnstrade. org/pdf/20080411 ColombiaTradeFightHumanRightsTest_Nation.pdf ("The Colombia Free Trade Agreement is best summed up as a proposal to formalize U.S. support for the assassination of labor union organizers by death squads, impoverishment of workers and the undermining of farming operations that will leave more landless peasants with no alternative but to immigrate to the United States seeking work."); A Letter from Chicago-Area Organizations and Unions Opposing the U.S.-Colombia Free Trade iqreemetit, U.S. Labor Education in the Americas Project, Jan. 28, 2008, http://www.usleap.org/grassroots-opposition-colombia-free-trade-agreemcnt-chicago-0 (claiming that the U.S.-Colombia FTA "poses major threats to the rights of indigcnous and Afro-Colombian groups, particularly around issues of land control"). 8 See Congress and Administration Announce New Trade Policy, Congressman Sandy Levin, May 10, 2007, http://www.housc.gov/apps/list/press/mi 12Jevin/pr051007.shtml. The other F I As include the Agreements with Korea, Peru and Panama. 9 See A New Trade Policyjàr America, U.S. House of Representatives Committee on Ways and Means, http://ways andmeans.house.gov/media/cnewslcttcr/5-ll-07/07%2005%2010%20New%20Trade%20Policy%200uthne.pdf: see also Dates You Need to Know, Office of the United States Trade Representative, Apr. 2008, littp://www.ustr. gov/sites/defatilt/files/tiploads/factshects/2008/asset_upload file320 15036.pdf For example, key labor provisions of the agreement included commitments: (1) requiring Colombia to adopt, maintain and enforce in its laws and practice the five basic international labor standards; (2) prohibiting Colombia from lowering labor standards; and (3) prohibiting Colombia from defending the failure to enforce laws related to the five basic intemational labor standards on the basis of resource limitations or decisions to prioritize other enforcement issues. The bipartisan agreement also provided that "foreign investors in the United States will not be accorded greater substantive rights with respect to investment protections than U.S. investors in the United States." See A New Trade Puliry for Amenca, U.S. House of Representatives Committee on Ways and Means, http://waysandmeans.housc.gov/media/ cnewsIetter/5-ll-07/U7%2005%2010%20New%20Trade%20Poticy%200uttme.pdf. r° See Background Note: Colombia, United States Department of Statc, May 2009, http://www.state.gov/r/pa/ ei/bgn/35754. htm: see also United States-Colombia Trade Promotion Agreement ("U.S.-Colombia F'rA"), Annex i, Schedule of Colombia, I-COL-26 ("Foreign investment is not permitted in activities related to the processing, disposition, and disposal of toxic, hazardous, or radioactive waste not produced in Colombia.").

"SeeColombiaEnergyData,Statistics and Analysis, U.S. Energy Information Administration, http://www.eia. doc.gov/emeu/cabs/Colombia/Coal.htnal. See Background Note: Colombian, United States Department of State, May 2009, http://www.statc.gov/r/pa/ ei/bgn/35754.htm. '3 See Colombia Energy Data, Statistics and Analysis, U.S. Energy Information Administration, http://www.eia. doe.gov/emeu/cabs/Colombia/Coal.html. 14 See Colornbia Energy Data, Statistics andAnalysis, U.S. Energy Information Administration, http://www.cia. doe.gov/emeu/cabs/Colombia/Oil.htinl. See Background Note: Colombia, United States Department of State, May 2009, http://www.state.gov/r/pa/ ci/bgn/35754.hun. See Colombia Energy Data, Statistics and Analysis, U.S. Energy Information Administration, http://www.eia.doe .gov / emeu/ cabs/Colombia/ Oil.html. See Backqround Note: Colornbia, United States Department of State, May 2009, http://www.state.gov/r/pa/ ei/bgn/35754.htm. '" Sec Colombia Enerqy Data, Statistics and Analysis, U.S. Energy Information Administration, http://www.eia. doe.gov/enieu /cabs/ Coloiiibia/NaturalGas. htill 1. 'v See Background Note: Calombia, United States Department of Statc, May 2009, http://www.state.gov/r/pa/ ei/bgn/35754.htm. 20 See Doinq Business 2010, The World Bank, http://www.doingbusiness.org/documents/fullreport/2010/ DB10-full-report.pdf. 2' See Colombia Law 963 of 2005, July 8, 2005, art. 1; see also Decree No. 2950 (2005), Colombia Ministry of Commerce, Industry and Tourism, Aug. 29, 2005; see generally Carlos Gerardo Mantilla Gomez & Daniel Bayona Valderrama, Legal Stability Contracts in Colombia, Latin American Regional Forum News, Mar. 2009, 14-15.

-=See Colombia Law 963 of 2005, July 8, 2005, art. 1. 2.1 See Legal Stability Contracts Part u: Evaluating The Stability Contrart Rcyinre, Colombia Law and Business Post, July 25, 2009, http://colombialawbiz.coiii/2009/07/25/legal-stability-coiitracts-part-ii-evaluatiiig-the-stability- regime/. =4 See Colombia Law 963 of 2005, July 8, 2005, art. 2; Decree No. 2950 (2005), Colombia Ministry of Commerce, Industry and Tourism, Aug. 29, 2005, art. 10. =5 See Colombia Law 963 of 2005, July 8, 2005, art. 5. =6 See id. at art. 6. =� See World Bank Governance Indicators (W<a) Project, The World Bank, http://info.worldbank.org/ govemancc/wgi/sc country.asp. 21 See Kaufinann, Kraay & Mastruzzi, Goveniaiice iwatters vm: Aggregate and brdividual Covc·nrance Indicators 096-20�, June 29, 2009, 6, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1424591##. =9 See id. 30 See World Bank Governance Indicators (Wcl) Projert, The World Bank, http://info.worldbank.org/ governance/wgi/sc-country.asp. J1 See Kaufinann, Kraay & Mastruzzi, Governance Matters iiii: Aggregate and Individual Governance Indicators 199G-2008, June 29, 2009, 6, littp://papers.ssni.coin/sol3/papers.cfrn?abstract id=1424591##.

3=SeeWorldBankGovernanceIndicators(Wet)Project, The World Bank, http://info.worldbank.org/ govemance/wgi/sc country.asp. 33 See Corruption Perceptions Index (CPI) 2009, Transparency International, http://www.transparency.org/ policy_rcsearch/surveys_indices/cpi/2009/cpi_2009_table (Colombia scored lower than only Costa Rica (5.3) and Chile (6.7) in Latin America.). " See C.4FM-DR Investor-State Arbitrations, United States State Department Office of the Legal Adviser, http://www.state.gov/s/l/c33165.htm. 35 See United States State Department Office of the Legal Adviser, littp://www.state.gov/s/l/c3439.htjii: Mexico Ministry of the Economy, http://www.econonua.gob.mr/?f=55(1(l. 36 See CANACAR V. United States of America, Notice of Arbitration, Apr. 2, 2009. See U.S.-Colombia Trade Promotion Agreement: Potential Economy-wide aiid Selected Sectoral Effect, U.S. International Trade Commission, Investigation No. TA-2104-023, UstTC Publication 3896, Dec. 2006, 6-6, http://www.usitc.gov/publications/ docs/pubs/21 04F/pub3896.pdf. ;" See irl. at 6-10 ("A U.S. industry representative from Caterpillar, Inc., speaking on behalf of several U.S. industry groups, said that he expects the TPA to improve the investment climate for U.S investors by enhancing the rule of law and ... contributing] to long-term stability in the investment climate between the two countries, a necessary prerequisite for long-term investment in industries such as mining and infrastructure development. Combined with the new investment dispute settlement mechanisms, the representative stated that he would expect the TPA to lead to increased U.S. investment in Colombia,."). Compare U.S.-Colombia FTA, art. 10.5 u�ith Free Trade Commission Clarifications Related to NAFTA Chapter 11, July 31, 2001, Section B, http://www.international.gc.ca/trade-agreements-accords-commerciaux/ disp-ditf/NAFTA-Interpr.aspx?lang=cn; see also NAFTA, art. 1131.2 ("An interpretation by the [Free Trade] Conmussion of a provision of this Agreement shall be binding on a Tribunal established under this Section."). ).

4°Seegenerally Sanford E. Gaines, Environmental Policy Implications of Investor-State Arbitration Under N�tFTA Chapter 11, Feb. 2006. 41 See, veg., Methanex Corporation v. United States ofAmerica (challenging a California state ban on the use or sale in California of the gasoline additive MTBE); Ethyl Corp. v. Canada (contesting a Canadian statute banning imports of the gasoline additive MMT for use in unleaded gasoline); S.D. Myers, Inc. v. Canada (claiming economic harm as a result of Canada's ban on the export of Pcts wastes from Canada to the United States); Metalclad Corp. v. United Mexican States (arguing that Mexico wrongfirlly refused to permit Metalclad's subsidiary to open and operate a hazardous waste facility). ^= Free Trade Commission Clarifications Related to NAFTA Chapter 11, July 31, 2001, http://www.international.gc.ca/tradc-agreements-accords-commerciaux/ disp-diff/N A FT A -I n tcrpr .aspx ?lang=en. 43 See U.S.-(:olombia F1 n, art. 10.16.3(a) ("Provided that six months have elapsed since the events giving rise to the [investment] claim, a claimant may submit a claim ... under the ICSID Convention and the ICSID Rules of Procedures for Arbitration Proceedings, provided that both the respondent and the Party of the claimant arc parties to the ICSID Convention."). U.S. investors also have the option of commencing international arbitration proceedings under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules, or any other mutually agreed upon arbitration rules or arbitration institution. See id. at art. 10.16.3. aa See List of Contracting States and Other Signatories of the Convention, International Centre for Settlement of Investment Disputes, http://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDDocRH<XractionVal= ContractingStates&ReqFrorn=Main. 'e ICSID had 183 concluded cases and 128 pending cases as of March 18, 2010. See List of ICSID Cases, International Centre for Settlement of Investment Disputes, http://icsid.worldbank.org/ICSID/FrontServlct? requestType=CasesRH&actionVal=ShowHomc&pageName=Cases Home. e. ^e See Convention on the Settlement of Investment Disputes Between States and Nationals of Other States ("ICSID Convention"), art. 62 ("Conciliation and arbitration proceedings shall be held at the scat of the Centre [in Washington, DC] except as hereinafter provided.").

See U.S.-Colombia FTA, art. 10.20.4 ("[A] tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim submitted is not a claim for which an award in favor of the claimant may be made under Article 10.26.10."). See id. at art. 10.20.6 ("When it decides a respondent's objection ... [to the tribunal's jurisdiction], the tribunal may, if warranted, award to the prevailing disputing party reasonable costs and attorney's fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider whether either the claimant's claim or the respondent's objection was frivolous..."). See id. at art. 10.20.4(b) ("On receipt of an objection [to the tribunal's jurisdiction] ... the tribunal shall suspend any proceedings on the merits..."). 50 See United States-Central America-Dominican Republic Free Trade Agreement ("CAFTA-DR"), art. 10.20.6 ("When it decides a respondent's objection ... [to the tribunal's jurisdiction], the tribunal may, ifwarranted, award to the prevailing disputing party reasonable costs and attorney's fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider whether either the claimant's claim or the respondent's objection was frivolous ..."). See Railroad Development Corporation v. Republic of Ciuatemala, ICSID Case No. Aku/07/23 (May 29, 2008 objections to jurisdiction); Tcw Group, Inc. v. Dominican Republic, (November 21, 2008 objections to jurisdiction); Pacific Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12 (January 4, 2010 objections to jurisdiction). The fourth case, Commerce Group Corp. and San Sebastian Gold Mines, Inc. v. Republic of EI Salvador, ICSID Case No. ARB/09/17, is still in its infancy. This case was only registered with ICSID on August 21, 2009. 52 See U.S.-Colombia FTA, art. 10.3 (requiring Colombia to accord to U.S. investors and their investments "treatment no less favorable than that it accords, in like circumstances," to Colombian investors and their investments "with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments"). 53 See id. at art. 10.5.1 (requiring Colombia to "accord to covered investments treatment in accordance with customary international law, including fair and equitable treatment and full protection and security"). 54 See id. at art. 10.7.1 (prohibiting Colombia from expropriating a covered investment either directly or indirectly through measures equivalent to expropriation, except: "(a) for a public purpose; (b) in a non- discriminatory manner; (c) on payment of prompt, adequate, and effective compensation; and (d) in accordance with due process oflaw and Article 10.5.").

55 See CAFTA-DR, art. 10.7. se See Commerce Group Corp. and San Sebastian Gold Mines, Inc. v. Republic ofel Salvador, Notice ofArbitration, ICSID Case No. A7t&/09/ 17, July 2, 2009, 30; Railroad Development Corporation v. Republic of Guatemala, Claimant's Memorial on the Merits, ICSID Case No. ARB/07/23,June 26, 2009, 107 (alleging an indirect expropriation); Pacific Rim Cayman LLC v. Republic of EI Salvador, Notice of Arbitration, Icsiu Case No. ARB/09/12, Apr. 30, 2009, D 88; TCw Group, Inc. v. Dominican Republic, Amended Notice of Arbitration and Statement of Claim, June 17, 2008, 127 (alleging a "creeping expropriation"). s� See The U.S.-Colombia Trade Promotion Agreement, Report of the Trade and Environment Policy Advisory Committee (TEPAC), Sept. 20, 2006, 6-7. sa See NAFTA, art. 1110.1 ("No Party may directly or indirectly nationalize or expropriate an investment of an investor of another Party in its territory or take a measure tantamount to nationalization or expropriation of such an investment...") (emphasis added). s9 See 438 U.S. 104(1978). 60 See U.S.-Colombia FTA, Annex 10-B.3. 61 See id. at Annex 10-B.3(a). 62 See, e.g., Tennessee Scrap Recyclers Association v. Bredesen, 556 F.3d 442 (6th Cir. 2009); Vulcan Materials Co. v. City of Tehuacana, 369 F.3d 882 (5th Cir. 2004); Cinega Gardens v. United States, 331 F.3d 1319 (Fed. Cir. 2003). �3 Cf , the U.S.-Colombia Trade Promotion Agreement, Report of the Trade and Environment Policy Advisory Committee (TEPAC), Sept. 20, 2006, 12 (minority opinion) (complaining that Chapter 10 contains certain "troublesome substantive rules" because "[t]he inclusion of terms like 'fair and equitable' provide arbitral panels with standards that do not exist in U.S. law"); id. at Attachment 3, page 7 ("[The "fair and equitable" language] would invite an arbitral tribunal to apply its own view of what is "fair" or "equitable" unbounded by any limits in U.S. law. Those terms have no definable meaning, and they are inherently subjective.").

64See U.S.-Colombia FTA, art. 10.26.7. ss See ICSID Convention, art, 54.1 ("Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State."). ss See U.S.-Colombia FTA, art. 10.17.2(b); id. at art. 10.26.8; id. at art. 10.26.10. See, e.g., New York Convention on Recognition and Enforcement of Arbitral Awards, art. v. The limited grounds for resisting enforcement of an arbitral award include public policy and incapacity. 68 The only Latin American states that are not Parties to the New York Convention are Belize and Guyana. sy See Status: 1958 - Convention on the Recognition and Enforcement of Foreign Arbitral Awards, United Nations Commission on International Trade Law, http://www.uncitral.org/uncitral/en/uncitral-texts/arbitration/NY Convention status.html.