Constitutional review of negotiated international investment agreements: Strengths and shortcomings of the Colombian Constitutional Court’s approach

Abstract

Increasingly, international investment agreements (IIAs) and investor–state dispute settlement (ISDS) mechanisms relate to, and at times conflict with, constitutional rights, principles, and rules. Because of this interrelationship, since 2017, constitutional courts in several regions of the world have had to examine constitutional charges brought against IIAs when conducting their ex ante constitutional review of negotiated IIAs. In order to fill significant gaps in the current literature on the subject, this article conducts an in-depth analysis of the judgment of the Colombian Constitutional Court (CCC) which examined the constitutionality of the negotiated bilateral investment treaty (BIT) between Colombia and France (“the investment Agreement”). This article demonstrates that, while the CCC’s judgment has several positive aspects, it also has some significant shortcomings. The Court set the basis for a stricter ex ante constitutional review of IIAs, specifically the rationales, methods, and grounds for review that constitutional courts can use to conduct such a review. The Court also shed light on the methodology to interpret IIAs, the conditional constitutionality approach, and orders that constitutional courts can adopt in this type of review. However, this article demonstrates that the Court’s review over many aspects of the three sets of elements that it covered—i.e. the investment Agreement as a whole and the Agreement’s provisions on standards of treatment and ISDS, was not thorough or it applied a looser test than its reasonableness test. This research also shows that the Court did not engage in review of the investment Agreement concerning its compatibility with economic, social, and cultural rights.