[CTC] Uber to launch ISDS suit against Colombia under US FTA

[Arthur Stamoulis]

Seems like a rough translation, but gives the gist.  Formal notice form Uber at the link…


https://en24.news/2020/01/uber-will-sue-colombia-fta-international-lawsuit-uber-will-sue-colombia-for-violating-the-fta-with-the-united-states-present.html

Uber will sue Colombia FTA international lawsuit: Uber will sue Colombia for violating the FTA with the United States | Present

The W knew exclusively the notification of the multinational Uber addressed to the Colombian State, about its intention to advance a millionaire international lawsuit after the Government’s decision to block the company’s platform in the country. The document, which is already held by President Ivan Duque, ensures that, with that decision, Colombia violates the Free Trade Agreement (FTA) with the United States.
(You may be interested: Uber responds to the SIC ruling that orders to suspend the provision of its service)

The document states that Uber is a company organized under the laws of the State of Delaware (United States) that has made several investments in Colombia and that Uber Colombia, organized under the laws of Colombia, is a subsidiary of Uber: “Consequently, Uber is a protected investor of the United States and Uber Colombia is a company protected under the Treaty ”.

For the company, the decision is not only considered as arbitrary but also driven by political pressures: “The arbitrary and discriminatory measures of the Republic against Uber have been taken before the political pressure of national interests so that the Republic prohibits Uber in Colombia and cancel Uber’s investments. ”

It also claims that the order of the Republic, issued under questionable circumstances in the context of a legal citation that has been prescribed, was published on the last day of the judicial calendar in Colombia with the apparent intention of preventing its immediate revision on appeal. Thus, Uber warns that because the order had immediate effect, it has substantially frustrated its commercial operations in Colombia.

(We recommend: Colombia deserves an opportunity to have Uber: spokesperson for the application)

In addition, in an apparent concerted effort against Uber, the order of the Superintendence of Industry and Commerce (SIC) was preceded by one that the Superintendency of Transportation imposed on Uber Colombia in record time a few minutes before, without even giving Uber Colombia the opportunity to review complaints that allegedly led to the penalty.

He adds that, in contrast, other companies and third countries that offer similar forms in Colombia have not undergone the same treatment and continue to operate No similar interference.

Therefore, he notes that the “arbitrary and discriminatory” measures of the country against Uber have been taken in the face of political pressure from national interests to prohibit their operation in Colombia and cancel their investments.

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TRANSLATION OF LA CARTA:

With respect and great reluctance, I write on behalf of Uber to inform you that an investment dispute has arisen under Chapter Ten of the United States and Colombia Trade Promotion Agreement (the treaty) as a result of the measures taken by the Republic of Colombia (the Republic), some of which are described below, which violate the treaty.

Uber is a company organized under the laws of the State of Delaware, United States, that has made several investments in Colombia. Uber Colombia, organized under the laws of Colombia, is a subsidiary of Uber. Consequently, Uber is a protected investor of the United States and Uber Colombia is a company protected under the Treaty. 

Uber develops, supports and owns a technological platform that, among other things, allows independent providers of shared travel services (“Driver Partners”) to enter into transportation contracts with passengers in Colombia (the “Uber Platform”). Through a subsidiary, Uber authorizes the use of the Uber Platform to Associate Drivers and passengers in Colombia. Uber also acts as a connection for Associate Drivers by charging the fees they charge passengers for their shared travel services.

In compensation for the use of the Uber Platform, Uber receives an intermediation fee. Protected investments in Colombia include, among others: 

Uber Colombia, a “company” that provides marketing and other support services to Uber’s operations; 
“Shareholding” in Uber Colombia through one of its subsidiaries; 
“Intellectual property rights”, including the right to license the use of the Uber Platform, including Uber’s applications, websites, content and products, as well as the Uber trademark and associated goodwill, in Colombia; and “intangible … property rights,” including the network of contracts between Uber (through a subsidiary) and users of Uber and Driver Partners, as appropriate, to access and use the Uber Platform in Colombia. 
Both Uber and Uber Colombia have protected investments under the Treaty. Uber and Uber Colombia, including its more than 230 employees in Colombia, have contributed to the growth of Colombias economy since 2013.

They intend to continue doing so. However, a series of recent measures by the Republic have had a serious adverse impact on Uber’s investments in Colombia and the viability of its operations in the country. On December 20, 2019, for example, through the Superintendence of Industry and Commerce (“SIC”), the Republic ordered Uber, Uber Colombia, and another Uber subsidiary that will virtually cease to make the Uber Platform available of Associated Drivers and passengers in Colombia. 

The order also required that telecommunications companies in Colombia suspend transmissions, storage and access to the Uber Platform in Colombia. 

The order of the Republic issued under questionable circumstances in the context of a legal citation that has been prescribed – was published on the last day of the judicial calendar in Colombia with the apparent intention of preventing its immediate revision on appeal. Because the order had immediate effect, it has substantially frustrated Uber’s commercial operations in Colombia. In addition, in an apparent concerted effort against Uber, the SIC’s order was preceded by one that the Superintendence of Transportation imposed on Uber Colombia in record time a few minutes earlier, without even giving Uber Colombia the opportunity to review the complaints that allegedly led to the penalty. 

In contrast, other companies in Colombia and third countries that offer similar forms in Colombia have not undergone the same treatment and continue to operate in Colombia without similar interference from the Republic. The arbitrary and discriminatory measures of the Republic against Uber have been taken in the face of political pressure from national interests so that the Republic prohibits Uber in Colombia and annuls Uber’s investments. 

These and other measures directed at Uber or its investments in Colombia violate the Treaty, including the obligations of the Republic, among other things, 

Not subject the investments of US restaurateurs to expropriations or nationalizations, or any other measure equivalent to the nationalization of expropriation, except for a public purpose, in accordance with due process, in an a-discriminatory manner and against compensation to the investor (Article 10.7); 
Grant US investors fair and equitable treatment and full protection and security (Article and (iii) to treat US investors no less favorably than Colombian investors or State investors (Articles 10.3 and 10.4). 
The illegal order of the Republic to block the Uber Platform in Colombia also constitutes an act of censorship in contravention of international human rights instruments that protect net neutrality, freedom of expression on the internet and freedom of use of the internet. 

Without prejudice to their rights under the Treaty (including the provisions of other investment treaties that are incorporated by reference under the most favored nation clause of the Treaty) and under general international law, Uber and Uber Colombia seek a Resolution of the dispute through consultation and negotiation and, to that end, request a meeting with you, or with the senior government official you wish to designate, to carry out such consultation and negotiation as soon as possible from the Republic.

Uber and Uber Colombia also inform the Republic that, in the event that the dispute cannot be resolved amicably or the Republic refuses to negotiate or does not negotiate in good faith, it is Uber’s intention to present the dispute for resolution. by binding arbitration under Article 10.15 and 10.16 of the Treaty. Uber and Uber Colombia reserve the right to send a notice of intent in accordance with Article 10.16.2 of the Treaty before or in the course of any consultation or negotiation. Each and every one of the consultations and negotiations that have taken place or may take place with respect to the dispute are not intended to be, and should not be taken as, a waiver of the right of Uber and Uber Colombia to proceed with the arbitration in under the Treaty or to assert its claims and rights before other forums. 


Arthur Stamoulis
Citizens Trade Campaign
(202) 494-8826




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