Procedural Posture and Background

This document is a Partial Final Award on Jurisdiction, Liability, and Damages issued by an International Centre for Dispute Resolution (ICDR) arbitral tribunal. The dispute arose from a public-private partnership (PPP) Concession Agreement for the design, construction, operation, and financing of the Eastern Perimetral Highway corridor in Colombia. The Claimants, Perimetral Oriental de Bogotá S.A.S. (the Concessionaire) and Shikun & Binui VT AG (a Swiss investor), initiated arbitration against the Respondent, the Colombian National Infrastructure Agency (ANI). The core of the dispute centered on the discovery of numerous water springs and archaeological findings within the project's Functional Units (UFs), which triggered Exemption of Liability Events (EERs) and rendered the performance of certain construction interventions legally and factually unfeasible due to strict environmental protections.

Jurisdiction and Competence

The Respondent raised several jurisdictional objections, primarily arguing that the arbitration lacked the requisite international character under Article 62 of Colombian Law 1563 of 2012. The Tribunal dismissed this objection, holding that the presence of direct foreign investment by the Swiss Claimant, as expressly acknowledged in the bidding documents and the Concession Agreement, satisfied the objective criteria for international arbitration. Furthermore, the Tribunal dismissed ANI's objection regarding the Tribunal's competence to hear claims related to EER compensation, distinguishing the Claimants' breach of contract claims from mere idle cost assessments reserved for an Amiable Compositeur. However, the Tribunal accepted ANI's objection regarding claims advanced on behalf of the EPC Contractor, ruling that it lacked competence to award damages suffered by a third-party non-signatory to the arbitration agreement.

Tribunal's Analysis on Liability

On the merits, the Claimants argued that ANI breached its pre-contractual and contractual obligations to properly structure the Project by failing to identify the water springs, which ultimately prevented the execution of UFs 4 and 5. The Tribunal agreed, finding that ANI bore the legal and contractual duty to guarantee the feasibility of the Project and to provide reliable structuring information. ANI's failure to detect the springs prior to the tender constituted a breach of this obligation. The Tribunal further found that the Claimants acted diligently in their environmental and archaeological management, dismissing ANI's counterclaims that the Claimants had breached their Operation and Maintenance (O&M) or archaeological obligations. The Tribunal concluded that the impossibility of performing the interventions was entirely attributable to ANI's faulty structuring.

Decision on Early Termination and Damages

Addressing ANI's subsidiary request, the Tribunal declared the Early Termination of the Concession Agreement. Crucially, the Tribunal determined that this termination was due to a cause attributable to ANI (its failure to detect the springs and subsequent bad faith in negotiating an amendment), thereby triggering ANI's liability for full reparation under Colombian constitutional and administrative law. Applying the principle of comprehensive reparation, the Tribunal awarded the Claimants compensation for both incurred costs and lost profits. The Tribunal ordered ANI to pay COP $803,300,000,000 for the loss of profits corresponding to UFs 1, 2, and 3, and COP $413,605,900,000 for the costs incurred in respect of UFs 4 and 5. The Tribunal deferred the determination of interest and arbitration costs to a subsequent final award.