INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES
TELEFÓNICA S.A.
Claimant
and
REPUBLIC OF COLOMBIA
Respondent/Applicant
ICSID Case No. ARB/18/3
Annulment Proceedings
DECISION ON THE STAY OF ENFORCEMENT OF THE AWARD
Members of the Ad Hoc Committee
Dário Moura Vicente, President of the Ad Hoc Committee
Mélanie Riofrio Piché, Member of the Ad Hoc Committee
José Antonio Moreno Rodríguez, Member of the Ad Hoc Committee
Secretary of the Ad Hoc Committee
Natalí Sequeira
Date sent to the parties:
January 9, 2026
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1. This decision determines the request to maintain the stay of enforcement of the award issued by the Arbitral Tribunal in the matter Telefónica S.A. v. Republic of Colombia, ICSID Case No. ARB/18/3, dated November 12, 2024 (the “Award”).
2. The parties to these proceedings are the Republic of Colombia (“Colombia" or the "Applicant"), as Respondent in the original proceedings and Applicant for annulment, and Telefónica S.A., Claimant in the original proceedings (“Telefónica” or the “Claimant”).
3. Colombia and Telefónica shall be referred to collectively as the “Parties.”
4. On November 27, 2024, Colombia filed its request for annulment of the Award (“Request for Annulment”) pursuant to Article 52 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID Convention” or “Convention”) and Rule 50 of the Rules of Procedure Applicable to ICSID Arbitration Proceedings in force since April 10, 2006 (“Arbitration Rules”).
5. In its Request for Annulment, Colombia requested a stay of enforcement of the Award until the Committee issues its decision on the requested annulment.
6. On December 5, 2024, Colombia requested that the three members of the Committee meet the following requirements:
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7. On December 6, 2024, the Acting Secretary-General of the International Centre for Settlement of Investment Disputes (“ICSID” or “Centre”) registered the Request for Annulment; notified that it contained a request to stay the enforcement of the Award; and informed the Parties that the enforcement of the Award was provisionally stayed, in accordance with Article 52(5) of the ICSID Convention and Rule 54(2) of the Rules of Arbitration.
8. By means of a letter dated December 9, 2024, Telefónica objected to the requirements that Colombia requested to be met by the members of the Committee.
9. In any event, on February 17, 2025, the Acting Secretary-General (i) proposed the appointment of Mélanie Riofrio Piché, José Antonio Moreno Rodríguez, and Dário Moura Vicente as members of the Committee; (ii) shared their respective curricula vitae and disclosures stated; and (iii) invited the Parties to submit any remarks by February 24, 2025.
10. On February 21, 2025, Telefónica requested clarifications from José Antonio Moreno regarding his disclosures.
11. On February 21, 2025, the Centre communicated José Antonio Moreno's clarifications.
12. On February 24, 2025, Telefónica acknowledged receipt of José Antonio Moreno's clarifications, stating that it had no further comments.
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13. On February 28, 2025, the Centre reported that the Chairman of the ICSID Administrative Council had appointed Mélanie Riofrio Piché, a national of Ecuador and Canada; José Antonio Moreno Rodríguez, a national of Paraguay; and Dário Moura Vicente, a national of Portugal, as members of the ad hoc annulment committee.
14. On March 14, 2025, the Acting Secretary-General informed the Parties that (i) the members of the Committee had accepted their appointments; (ii) Moura Vicente would serve as President of the Committee; and (iii) the Committee was constituted as of such date.
15. On March 19, 2025, the Committee invited the Parties to consult with one another and jointly propose a schedule for the exchange of briefs regarding the request to stay the enforcement of the Award.
16. On March 28, 2025, the Parties reported that they had not reached an agreement on the schedule for the exchange of briefs regarding the request to stay the enforcement of the Award.
17. By means of a letter dated April 1, 2025, the Committee notified the Parties of its decision regarding the schedule proposals for the exchange of briefs on the request to stay enforcement of the Award, and informed them that the stay would be maintained until a decision was adopted on such request.
18. On April 7, 2025, Colombia filed a request for an extension of the time limit to submit its memorial on the stay of enforcement of the Award.
19. On April 14, 2025, with the Committee's prior authorization, Telefónica filed its opposition and comments on the extension of the time limit requested by Colombia.
20. On April 16, 2025, the Committee announced its decision regarding the dates for filing briefs on the request to stay the enforcement of the Award, granting the extension requested by Colombia.
21. On May 6, 2025, the Committee held the First Session with the Parties via videoconference. The following attended:
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Committee:
| Dário Moura Vicente | President |
| Mélanie Riofrio Piché | Committee Member |
| José Antonio Moreno Rodríguez | Committee Member |
ICSID Secretary:
| Natalí Sequeira | Secretary of the |
| Federico Salon Kajganich | ICSID Committee |
On behalf of the Claimant:
| Rafael Llano | White & Case LLP. |
| Ignacio Madalena | White & Case LLP |
| Mariéle Coulét Díaz | White & Case LLP |
| Pablo de Carvajal | Telefónica S.A. |
| Iván Rosa Vallejo | Telefónica S.A. |
On behalf of the Republic of Colombia / Applicant:
| César Palomino Cortés | General Director, ANDJE |
| Yebrail Haddad Linero | Director of International Legal Defense (ANDJE) |
22. During the session, the Parties and the members of the Committee discussed the draft of the Procedural Resolution No. 1, as well as the procedural schedule for the proceedings.
23. On May 8, 2025, the Committee issued Procedural Resolution No. 1.
24. On June 5, 2025, Colombia filed its Memorial on the Request for the Stay of Enforcement of the Award.
25. On August 6, 2025, Telefónica filed its Counter-Memorial on the Request for the Stay of Enforcement of the Award.
26. On August 21, 2025, Colombia filed its Reply to the Request for the Stay of Enforcement of the Award. In that brief, Colombia requested the holding of a virtual hearing so that the Parties could present oral arguments regarding the stay of enforcement of the Award.
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27. On September 6, 2025, Telefónica filed its Rejoinder to the Request for the Stay of Enforcement of the Award and opposed the holding of a virtual hearing.
28. On September 8, 2025, Colombia requested Committee's authorization to submit additional documents to the case record regarding the request to the stay enforcement of the Award.
29. On September 9, 2025, the Committee informed the Parties of its decision to hold a virtual hearing to discuss the stay of the enforcement of the Award and proposed several dates for the hearing.
30. On September 9, 2025, the Committee invited Telefónica to comment on Colombia's request to include additional documents to the case record.
31. On September 12, 2025, Telefónica submitted its comments on Colombia's request and stated that it did not object to the inclusion of additional documents.
32. On September 17, 2025, in the absence of consensus among the Parties regarding the dates initially proposed for the virtual hearing on the stay of enforcement of the Award, the Committee proposed additional dates.
33. On September 19, 2025, after receiving the Parties' comments, the Committee announced its decision to hold the virtual hearing on December 10, 2025.
34. On September 22, 2025, the Parties jointly proposed the organizational plan for the hearing on the stay of enforcement of the Award.
35. On December 10, 2025, the virtual hearing on the stay of enforcement of the Award was held, with the following participants:
Committee:
| Dário Moura Vicente | President |
| Mélanie Riofrio Piché | Committee Member |
| José Antonio Moreno Rodríguez | Committee Member |
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ICSID Secretary:
| Ricardo Marroquín Gonzalez | ICSID |
| Federico Salon Kajganich | ICSID |
On behalf of the Claimant:
| Rafael Llano | White & Case LLP |
| Ignacio Madalena | White & Case LLP |
| Sabina Hidalgo | White & Case LLP |
| Daniel Posada | White & Case LLP |
| Iván Rosa Vallejo | Telefónica S.A. |
On behalf of the Republic of Colombia / Applicant:
| Yebrail Andrés Haddad Linero | Director of the State Legal Defense |
| Leonardo David Beltrán Rico | State Legal Defense |
| Andrés Dario Sarmiento Lamus | State Legal Counsel |
| Daniela Velásquez Sarmiento | State Legal Counsel |
| Eduardo Silva Romero | Wordstone Dispute Resolution |
| Catalina Echeverri Gallego | Wordstone Dispute Resolution |
| Ana María Durán López | Wordstone Dispute Resolution |
| Judith Alves | Wordstone Dispute Resolution |
| Álvaro Martínez Almeida | Wordstone Dispute Resolution |
Spanish stenographer:
Leandro Iezzi
36. On December 23, 2025, in the absence of any objection by Telefónica¹, the Committee confirmed to the Parties that the additional documents submitted by Colombia were hereby incorporated into the case record.
¹ Letter from Telefónica dated September 12, 2025.
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37. In its Memorial on the Request for the Stay of Enforcement of the Award, Colombia requests, pursuant to Article 52(5) of the ICSID Convention and Rule 54 of the ICSID Arbitration Rules, that the stay of enforcement of the Award be maintained until a decision on its annulment is issued and that Telefónica be ordered to pay the costs and expenses incurred by Colombia in connection with this matter².
38. According to Colombia, this stay is justified, first, because the right to request a stay constitutes, in its view, an essential element of the right to file an annulment proceeding when the Claimant exercises it in good faith, such as in this case³.
39. Second, Colombia asserts that if the Committee were to conclude that the Applicant must demonstrate that there are particular circumstances justifying the stay, it could easily verify this⁴.
40. In fact, Colombia also asserts that immediate compliance with the Award would significantly affect the public budget: the immediate enforcement of the Award would compel the Colombian State to redirect essential public resources intended for necessary and urgent investments in priority sectors, such as education and health⁵.
41. In any case, any attempt to redirect resources to cover payment of the Award would require authorization from the Congress of the Republic, insofar as it would involve modifying the amounts approved in Executive Order with force of Law No. 1523 of 2024, which establishes the sectoral appropriations of the General National Budget⁶.
42. Furthermore, according to Colombia, it would face serious difficulties in recovering the funds
² Memorial on the Request for the Stay of Enforcement of the Award, ¶¶ 6, 71.
³ Id., ¶ 7.
⁴ Id., ¶ 8.
⁵ Id., ¶ 30.
⁶ Id., ¶ 38.
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paid in the event that the Award is subsequently annulled⁷.
43. According to Colombia, this is due to three circumstances⁸:
44. First, on March 13, 2025, Telefónica publicly announced that it had reached a binding agreement with Millicom Spain for the sale of its main asset in Colombia: its equity in ColTel. Such agreement was signed for an amount of approximately USD 400 million, a figure substantially lower than the total recognized in the Award⁹. If the exit from Colombia is confirmed, Telefónica would have no incentive to maintain good relations with the State. Consequently, there is no certainty that the company will voluntarily return the funds that Colombia may pay in compliance with the Award¹⁰.
45. Second, in the event that the sale of ColTel is not closed before the Committee's decision on the annulment, the sale price of Telefónica's shares (due to ColTel's precarious financial situation) confirms that any possible attachment of Telefónica against Millicom España or of ColTel's shares in Colombia would, in any case, be insufficient to cover the amount of the Award that Colombia might end up paying. While Colombia would have disbursed approximately USD 560 million, the attachment of Telefónica's claim, or the attachment and subsequent auction of ColTel's shares, could only report income of, at most, USD 400 million¹¹.
46. Third, and in light of the foregoing circumstances, Colombia will most likely be forced to institute legal proceedings abroad, presumably in Spain, in an attempt to recover the funds paid. This course of action would entail high litigation costs, extended time limits, and considerable legal uncertainty¹².
⁷ Id., ¶ 9.
⁸ Id., ¶ 42.
⁹ Id., ¶ 43.
¹⁰ Id., ¶ 45.
¹¹ Id., ¶ 47.
¹² Id., ¶ 48.
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47. In contrast to Colombia's situation, the stay of the Award would not, according to the Applicant, cause any prejudice to Telefónica¹³.
48. According to Colombia, compliance on its part must be presumed. This presumption is reinforced not only by the express commitment arising from its accession to the ICSID Convention, but also by the Applicant's constant and consistent practice of complying with the international tribunals' decisions. Indeed, Colombia argues, there is consistent evidence that, historically and in good faith, it has honored such decisions¹⁴.
49. Furthermore, the Award provides for the payment of post-Award compound interest, precisely to compensate for any delay in its enforcement. Specifically, the Tribunal sets post-Award compound interest: (i) at 5% on the principal amount of the award; and (ii) at 4,25% on EUR 4.300.824,32 for attorneys' fees. This interest, according to Colombia, ensures that Telefónica is fully compensated for any breach of the Award¹⁵.
50. In light of the foregoing, Colombia maintains that, in this case, the balance of interests favors the continuation of the stay of enforcement of the Award¹⁶.
51. Therefore, Colombia requests the Committee to: (i) order the maintenance of the stay of enforcement of the Award of November 12, 2024, until the Decision on the annulment is issued; and (ii) order Telefónica to pay the costs and expenses incurred by Colombia in connection with the stay of enforcement of the Award¹⁷.
52. In its Reply to the Request for the Stay of Enforcement of the Award, Colombia adds that, contrary to Telefónica's arguments, the stay of enforcement of an award object of a request
¹³ Id., ¶ 49.
¹⁴ Id., ¶ 53.
¹⁵ Id., ¶ 58.
¹⁶ Id., ¶ 63.
¹⁷ Id., ¶ 71.
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for annulment does not constitute an exceptional measure under the ICSID Convention, but rather an established practice that annulment committees routinely apply, and this case offers no reason to depart from that practice¹⁸.
53. In fact, the Request for Annulment, far from being frivolous, is fully justified¹⁹, among other reasons, because, in Colombia's view, the Tribunal acted as an amicable composer (ex aequo et bono) without the Parties authorizing it to do so²⁰.
54. Furthermore, according to Colombia, the Committee must grant the stay of enforcement of the Award without any conditions, since the ICSID Convention does not empower ad hoc committees to make the stay of enforcement of the award conditional upon the provision of guarantees. This is a power that the contracting States expressly decided to exclude when negotiating that instrument. In any event, the financial guarantees requested by Telefónica are contrary to the ICSID Convention, and furthermore, the company has not demonstrated that they are necessary in this proceeding. The truth is that, with such guarantees, Telefónica seeks to place itself in a more advantageous position regarding the enforcement of the Award than it would be in if Colombia had not exercised its legitimate right to request annulment²¹.
55. In short, given that Telefónica has not proven and cannot prove that the State filed the Request for Annulment in bad faith, the Committee must, according to Colombia, order the continuation of the stay²².
56. In its opening statements at the hearing on December 10, 2025, Colombia reiterated that the stay of enforcement of the award must be maintained, without any conditions, for three fundamental reasons: (i) Telefónica has not proven that the Request for Annulment is abusive or dilatory; (ii) Alternatively, the circumstances of the case require maintaining the
¹⁸ Reply to the Request for the Stay of Enforcement of the Award, ¶ 3.
¹⁹ Id., ¶ 4.
²⁰ Id., ¶ 5.
²¹ Id., ¶ 10.
²² Id., ¶ 39.
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stay, given the significant prejudice that Colombia would suffer if it were lifted, whereas Telefónica would not suffer such prejudice if it were maintained; and (iii) The continuation of the stay should not be subject to any conditions, since conditioning the stay would create an unfair imbalance between the Parties and the ad hoc committees do not have the power to order measures to secure payment of an award²³.
57. In its Counter-Memorial to the Request for the Stay of Enforcement of the Award, Telefónica argues that the request lacks grounds and should be rejected, and therefore requests the Committee to: (i) lift the stay of enforcement of the Award²⁴ ; (ii) alternatively, in the event that the Committee decides to maintain the stay of enforcement of the award, make it conditional upon Colombia's prior compliance of guarantees;²⁵ and (iii) order Colombia to pay the costs and expenses incurred by Telefónica in connection with the stay of enforcement of the award.²⁶
58. Furthermore, Telefónica adds, the stay of enforcement of the Award is unnecessary and unjustified for three fundamental reasons²⁷:
59. First, contrary to Colombia's allegations, there is, according to Telefónica, no omission or lack of grounds in the Award; the State misrepresents the Tribunal's reasoning in order to reopen the debate on issues already resolved in the Award²⁸.
60. Second, lifting the stay of enforcement does not represent a genuine prejudice to the State, and there is no risk whatsoever that Colombia will not recover the amount of the award it pays to Telefónica in the event of a possible annulment of the Award.
²³ Colombia's Opening Arguments, Hearing of December 10, 2025, slides 5 et seq.
²⁴ Counter-Memorial to the Request for the Stay of Enforcement of the Award, ¶ 1.
²⁵ Id., ¶ 9.
²⁶ Id., ¶ 136.
²⁷ Id., ¶ 5.
²⁸ Id., ¶ 6.
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Telefónica is a company of great financial solvency, so it would have no difficulty whatsoever in repaying the State the amount of the award in the event the Award is annulled.
61. Third, there is a considerable risk that Colombia will fail to pay the Award, as evidenced by the Colombian State's own position and its public statements regarding the Award and against the international investment protection system³⁰.
62. Furthermore, in the event that the Committee decides to maintain the stay of enforcement of the Award, the same reasons that lead to the conclusion that such a measure is unnecessary and unjustified also allow arguing that such stay should then be conditional upon Colombia's prior compliance of certain guarantees, so as to safeguard Telefónica's interests and mitigate the risk to which it is exposed due to the stay of enforcement of the Award. Therefore, in the alternative, Telefónica requests that, should the Committee maintain the stay of enforcement, it be made conditional upon the State providing the appropriate security or guarantee³¹.
63. According to Telefónica, the general rule under the ICSID system's regulatory framework is that awards are enforceable and may be executed immediately upon their issuance. Only in cases where the condition set forth in Article 52(5) of the ICSID Convention is met may a stay of enforcement be agreed upon while the request for annulment is being resolved. Furthermore, while the provisional stay is automatically granted, its continuation, once the committee has been constituted, is not³².
64. Therefore, regardless of the filing of the application for annulment, the award must be immediately enforceable, and only under exceptional circumstances may its enforcement be stayed³³.
²⁹ Id., ¶ 7.
³⁰ Id., ¶ 8.
³¹ Id., ¶ 9.
³² Id., ¶ 23.
³³ Id., ¶ 24.
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65. In any event, the alleged economic harm to the State does not justify maintaining the stay of enforcement of the Award. According to Telefónica, this is due to three main reasons:
66. First, Colombia's position ignores the nature of the order reimbursement in the Award for an improper payment—contrary to international law—which the State should never have received³⁴.
67. Therefore, to comply with its pecuniary obligations under the Award, Colombia will not have to use the State's own resources, but must simply return to Telefónica the money it has held in its possession since August 29, 2017, plus the respective interest³⁵.
68. Second, no financial damages can result from lifting the stay of enforcement of the Award. Several ad hoc committees have clarified that the payment of an award and the redirection of funds cannot, under any circumstances, be considered in itself as “damage" arising from the immediate enforcement of the award, as this is a payment that the State would have to make in any event if the tribunal's decision is not annulled.
69. Third, since these are funds that belong to Telefónica and which the State should have set aside from the moment the arbitration proceedings against it began, in light of the possible contingency of an unfavorable ruling, the State cannot claim now that it will require authorization from the National Congress to comply with the award against it. Even if this were true, the State's argument works against its own position, as it implies an extraordinary delay in complying with the Award, which more than justifies lifting the stay of its enforcement immediately³⁶.
70. In conclusion, the lifting of the stay of enforcement of the Award and the consequent
³⁴ Id., ¶ 83.
³⁵ Id., ¶ 85.
³⁶ Id., ¶ 91.
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enforcement of the award by Colombia in no way constitutes a damage to the State³⁷.
71. Furthermore, according to Telefónica, none of the alleged difficulties the State would face to eventually recover the amount of the award from an annulled award are in any way credible or justify maintaining the stay of enforcement³⁸.
72. In fact, the results published by Telefónica for the fourth quarter of 2024 show growth in the company's revenues in most of its priority markets. This reflects Telefónica's stability as a company and its future economic viability. There is no basis for pointing to a latent risk of Telefónica's insolvency. Today, Telefónica remains one of Spain's leading companies, with operations and a presence in 12 countries worldwide. Furthermore, based on the information stated in the consolidated financial statements as of December 31, 2024, Telefónica has assets exceeding 100 billion euros, which far exceeds the value of the judgment³⁹.
73. In reality, it is Telefónica that, in its view, faces a serious risk of non-payment by the State: there is no indication whatsoever that the State will voluntarily comply with the Award if the stay of enforcement is lifted or if the Committee dismisses the request for annulment. In fact, the State's conduct reveals, according to Telefónica, the opposite. It is enough to observe the State's reaction to the Award and Colombia's record of compliance with other awards to have very little hope regarding voluntary compliance by the State⁴⁰.
74. In this context, Telefónica argues that it will suffer significant damages in the event of a decision by the Committee to stay enforcement of the Award, which would only serve to
³⁷ Id., ¶ 92.
³⁸ Id., ¶ 97.
³⁹ Id., ¶ 101.
⁴⁰ Id., ¶ 106.
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delay even more the compensation ordered by the Tribunal. Telefónica further argues that it is highly likely to face a lengthy and costly process of compulsory enforcement of the Award, even if it is decided to lift the stay⁴¹.
75. In conclusion, the circumstances of the case require that the stay on the enforcement of the Award be lifted. While this would not result in adverse consequences or effects for Colombia, Telefónica is indeed exposed to a risk of breach by the Colombian government. Although Colombia argues that lifting the stay would cause it a series of damages due to the need to redirect a large amount of budgetary resources that should be allocated to social purposes, and due to the difficulty involved in pursuing a potential recovery process against Telefónica, the reality is that, in its view, such damages do not exist⁴².
76. Alternatively, in the event that the Committee decides to maintain the stay of enforcement of the Award, Telefónica requests that such decision be conditional upon the State providing financial guarantees, either in the form of a bank guarantee or a bank deposit or escrow account sufficient to cover: (i) the principal amount of the award set forth in the Award; (ii) the interest accrued on the aforementioned amount, calculated as of the date a decision on the stay is issued, in accordance with the parameters established in the Award; and (iii) the defense costs and expenses that Colombia has already been ordered to pay to Telefónica, and those it may eventually be required to pay in the context of these proceedings⁴³.
77. Furthermore, since Colombia has already stated in its Request for Annulment that it always recognizes its international commitments “voluntarily” and that “[t]his would be no exception," Telefónica also requests that the Committee, in the event of issuing the stay of enforcement of the Award, make such stay contingent upon the provision of a written
⁴¹ Id., ¶ 114.
⁴² Id., ¶ 121.
⁴³ Id., ¶ 133.
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guarantee by the State, in which it expressly acknowledges the binding force of the Award and the obligations arising therefrom, and unconditionally and irrevocably undertakes to make the corresponding payment within a specified time limit, in the event that the Committee dismisses the annulment of the Award⁴⁴.
78. For the foregoing reasons, Telefónica requests that the Committee:
a. Dismiss Colombia's request to maintain the stay of enforcement of the Award;
b. As consequence of the above, order the lifting of the stay of enforcement of the Award;
c. Alternatively, in the event that the Committee decides to maintain the stay of enforcement of the Award, make such stay conditional upon Colombia's prior compliance of the following guarantees:
⁴⁴ Id., ¶ 134.
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d. Colombia be ordered to pay the costs and expenses incurred by Telefónica in connection with the stay of enforcement of the Award⁴⁵.
79. In its Rejoinder, Telefónica adds that Colombia distorts the applicable standard by arguing that the Panel must order the stay of enforcement of the Award, unless Telefónica proves the existence of unusual circumstances and, in particular, that the Request for Annulment was filed in bad faith or for dilatory purposes⁴⁶.
80. According to Telefónica, the case law confirms that Colombia has the burden of proving that the stay of enforcement of the Award should be maintained⁴⁷.
81. Telefónica further argues that, in response to Colombia's Request for the Stay, the Committee must conduct a balanced assessment of the Parties' interests in light of the particular circumstances of the case and all relevant factors. Such relevant factors include the following: (i) The prospects of effective and immediate payment of the Award by Colombia if the Request for Annulment is dismissed; (ii) The adverse financial consequences for Telefónica resulting from the delay in payment of the Award; (iii) The prospects of recovering the corresponding reimbursement if the Request for Annulment is accepted (in whole or in part); and (iv) The adverse financial consequences for Colombia arising from lifting the stay⁴⁸.
82. However, in Telefónica's view, the application of the balancing test requires the Committee to lift the stay of enforcement of the Award: (i) There is no damage to the State if the Committee decides to lift the stay, including because lifting the stay will not entail immediate payment of the Award by the State; (ii) Rather, it is Telefónica that, in the event that the Committee decides to maintain the stay, will be damaged, including due to the
⁴⁵ Id., ¶ 136.
⁴⁶ Reply to the Request for the Stay of Enforcement of the Award, ¶ 7.
⁴⁷ Id., ¶ 39.
⁴⁸ Id., ¶ 56.
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impact that, in terms of time and cost, would result from waiting for the Committee to rule on the Request for Annulment before initiating the corresponding compulsory enforcement proceedings⁴⁹.
83. According to Telefónica, the Committee has the discretionary authority to require Colombia to provide appropriate guarantees, should it decide to maintain the stay of enforcement of the Sward⁵⁰.
84. The establishment of conditions for the continuation of the stay of enforcement of an award is provided for in Article 52(5) of the ICSID Convention. According to Telefónica, this is simply "an exercise of procedural powers for the better conduct and order of the annulment phase." This has been determined by numerous arbitral tribunals, which have derived the power to order guarantees of various kinds from the very same power to stay the enforcement of an award⁵¹.
85. In its Opening Arguments at the Hearing on December 10, 2025, Telefónica reiterated its position regarding the balancing criteria applicable to the decision on the stay of enforcement of the Award: (i) As for the prospects of payment, in any scenario, those of effective and immediate payment of the Award by Colombia are null, as they depend on protracted and complex proceedings; (ii) As for the consequences for Telefónica, the delay, uncertainty, and lack of payment of the Award have generated (and will continue to generate) adverse financial consequences for Telefónica; (iii) Regarding the prospects of reimbursement, recovery of the corresponding amount if the Request for Annulment is accepted in whole or in part is certain and guaranteed; and (iv) Regarding the consequences for Colombia, there are no unduly onerous consequences arising from lifting the stay⁵².
⁴⁹ Id., ¶ 68.
⁵⁰ Id., ¶ 127.
⁵¹ Id., ¶ 130.
⁵² Respondent's Opening Arguments in the Annulment Proceedings, Hearing of December 10, 2025, slide 25.
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86. Awards rendered by arbitral tribunals constituted under the ICSID Convention are binding on the parties. This is established by Article 53(1) of such international instrument, which provides:
“The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention. Each party shall abide by and comply with the terms of the award except to the extent that enforcement shall have been stayed pursuant to the relevant provisions of this Convention.”
87. Furthermore, such awards are enforceable in the Contracting States, pursuant to Article 54(1) of the same Convention, without being subject to any review or confirmation proceedings. That article provides:
“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. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state.”
88. ICSID arbitral awards are, therefore, binding from the date of their issuance and automatically enforceable in the Contracting States to the Convention.
89. The stay of the enforcement of an ICSID arbitral award constitutes, consequently, an
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exception to the principle of immediate enforcement⁵³.
90. However, Annulment Committees may stay the enforcement of awards if the circumstances of the case require it, under the terms set forth in Article 52(5) of the ICSID Convention, which provides:
“The Committee may, if it considers that the circumstances so require, stay enforcement of the award pending its decision. If the applicant requests a stay of enforcement of the award in his application, enforcement shall be stayed provisionally until the Committee rules on such request."
91. Neither the Convention nor the ICSID Rules establish requirements for granting or denying a request for the stay of enforcement of the award. Consequently, annulment committees have discretion to decide on requests for stay⁵⁴.
92. In exercising this discretion, the Committee may not start from any presumption in favor of granting a request for a stay or of continuing a stay already granted⁵⁵.
93. Rather, the stay of enforcement must be justified by specific circumstances⁵⁶.
94. Pursuant to Rule 54(4) of the ICSID Arbitration Rules, the request for the stay of
⁵³ See, in this regard, ARL-50-ENG, Cube Infrastructure Fund SICAV et al. v. Kingdom of Spain, ICSID Case No. ARB/15/20, Annulment Proceedings, Order on the Continuation of the Provisional Stay of Enforcement of the Award (April 17, 2020), ¶ 121; ARL-33-ENG, BayWa r.e. AG v. Kingdom of Spain, ICSID Case No. ARB/15/16, Annulment Proceedings, Procedural Order No. 2, on the Stay of Enforcement of the Award (December 20, 2021), ¶ 70.
⁵⁴ See ARL-50-ENG, Cube Infrastructure Fund SICAV et al. v. Kingdom of Spain, ICSID Case No. ARB/15/20, Annulment Proceedings, Decision on the Continuation of the Provisional Stay of Enforcement of the Award (April 17, 2020), ¶ 127; ARL-37-ENG, Eurus Energy Holdings Corporation v. Kingdom of Spain, ICSID Case No. ARB/16/4, Decision on the Request for Continuation of the Stay of Enforcement of the Award, ¶ 78.
⁵⁵ See also, in this regard, ARL-33-ENG, BayWa r.e. AG v. Kingdom of Spain, ICSID Case No. ARB/15/16, Annulment Proceedings, Procedural Order No. 2, on the stay of the enforcement of the award (December 20, 2021), ¶ 73.
⁵⁶ See, in this regard, ACL-1-SPA, Víctor Pey Casado and Fundación “Presidente Allende” v. Republic of Chile, ICSID Case No. ARB/98/2, Decision on the Republic of Chile's Request for the Stay of Enforcement of the Non-Annulled Portions of the Award (May 16, 2013), ¶ 40.
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enforcement of the award must specify such circumstances:
“A request pursuant to paragraph (1), (2) (second sentence) or (3) shall specify the circumstances that require the stay or its modification or termination. A request shall only be granted after the Tribunal or Committee has given each party an opportunity of presenting its observations."
95. The risk that the Applicant will not recover the amount of the award in the event of annulment, if the stay were lifted, is one such circumstance⁵⁷.
96. The corresponding risk that the creditor of the award will face increased difficulty in enforcing it coercively, due to the delay in such enforcement resulting from the stay, constitutes another relevant circumstance⁵⁸.
97. Although ad hoc committees have discretion to decide on the stay of enforcement of an arbitral award, given the provisional nature of the stay granted by the ICSID Secretary-General and the fact that the stay will be automatically lifted unless the committee decides to maintain it, it is the party requesting the maintenance of the stay—namely, the applicant in annulment—who must prove the circumstances supporting the requested decision⁵⁹.
98. In any event, in order to decide on a request to continue the stay, it is appropriate to weigh
⁵⁷ See ARL-52-ENG, Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1, Annulment Proceedings, Procedural Order No. 3 (May 20, 2020), ¶ 58.
⁵⁸ See ARL-37-ENG, Eurus Energy Holdings Corporation v. Kingdom of Spain, ICSID Case No. ARB/16/4, Decision on the Request for Continuation of the Stay of Enforcement of the Award, ¶ 110.
⁵⁹ See, in a similar vein, ARL-50-ENG, Cube Infra. Fund SICAV et al. v. Kingdom of Spain, ICSID Case No. ARB/15/20, Annulment Proceedings, Decision on the Continuation of the Provisional Stay of Enforcement of the Award (April 17, 2020), ¶ 125; ARL-52-ENG, Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1, Annulment Proceedings, Procedural Order No. 3 (May 20, 2020), ¶ 73; ARL-33-ENG, BayWa r.e. AG v. Kingdom of Spain, ICSID Case No. ARB/15/16, Annulment Proceedings, Procedural Order No. 2, on the stay of the enforcement of the award (December 20, 2021), ¶ 76; ARL-37-ENG, Eurus Energy Holdings Corporation v. Kingdom of Spain, ICSID Case No. ARB/16/4, Decision on the Request to Continue the Stay of Enforcement of the Award, ¶ 87.
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the interests of the parties and the damages that each might suffer if the stay of enforcement is maintained or lifted (“balancing of the harms”)⁶⁰.
99. In fact, the fundamental objective of a decision rendered by an ad hoc committee on a request regarding the maintenance or lifting of the stay of enforcement of an arbitral award during annulment proceedings must be to find a solution that optimally balances those interests, minimizing the harm to either Party during the proceedings and after their conclusion.
100. The merits of the request for annulment are not relevant for these purposes⁶¹.
101. While the fact that the request for annulment is not purely dilatory or frivolous is relevant to the assessment of the request to continue the stay of enforcement of the award⁶², that circumstance alone is not sufficient to decide the matter. Otherwise, all requests of this nature would have to be granted merely by meeting that minimum requirement, which would undermine the principle of immediate enforcement of ICSID awards.
102. The Parties to the present proceedings agree on the need to weigh, for each of them, the advantages and disadvantages arising from the immediate enforcement or the stay of the Award⁶³.
⁶⁰ See ARL-53-ENG, NextEra Energy Global Holdings B.V. and NextEra Energy Spain Holdings B.V. v. Kingdom of Spain, ICSID Case No. ARB/14/11, Annulment Proceedings, Decision on the Stay of Enforcement of the Award (April 6, 2020), ¶ 95; ARL-37-ENG, Eurus Energy Holdings Corporation v. Kingdom of Spain, ICSID Case No. ARB/16/4, Decision on the Request to Continue the Stay of Enforcement of the Award, ¶ 83.
⁶¹ See ARL-50-ENG, Cube Infrastructure Fund SICAV et al. v. Kingdom of Spain, ICSID Case No. ARB/15/20, Annulment Proceedings, Decision on the Continuation of the Provisional Stay of Enforcement of the Award (April 17, 2020), ¶ 139.
⁶² See also ARL-37-ENG, Eurus Energy Holdings Corporation v. Kingdom of Spain, ICSID Case No. ARB/16/4, Decision on the Request for Continuation of the Stay of Enforcement of the Award, ¶ 84.
⁶³ Submission on the Request for the Stay of Enforcement of the Award, ¶ 26; Rejoinder on the Request for the Stay of Enforcement of the Award, ¶ 56.
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103. With respect to Colombia, these difficulties essentially boil down, according to its arguments, to two aspects: (i) The social, economic, and fiscal impact of immediate payment of the award⁶⁴ ; and (ii) The risk of having to pay an award that, if annulled, would give rise to a claim for restitution that would have to be pursued before foreign courts, since Telefónica has no assets in Colombia⁶⁵.
104. As for Telefónica, the main inconvenience of the stay, in its view, is the delay and uncertainty regarding the possibility of enforcing its right against Colombia, due to the time and cost implications of waiting for the Committee to rule on the Request for Annulment before initiating the corresponding compulsory enforcement proceedings, since voluntary payment is subject to a political process with an uncertain outcome⁶⁶.
105. The Committee considers, with respect to Colombia, that the first alleged disadvantage occurs in any event, whether the Award is immediately enforceable or only after the decision on the annulment.
106. It is worth noting, in this regard, that, as Colombia acknowledged during the hearing⁶⁷, budgetary procedures in Colombia are identical whether payment of the Award is made during the annulment proceedings or after them. Therefore, the need for authorization from the Congress of the Republic does not, in itself, appear decisive for maintaining the stay.
107. Likewise, in this Committee's view, the State's need to secure public resources for social benefits does not justify maintaining the stay of enforcement of ICSID awards. Given that State resources always serve public purposes, accepting Colombia's argument would contravene the principle of effectiveness, nullifying the obligations set forth in Articles 52(5)
⁶⁴ Memorial on the Request for the Stay of Enforcement of the Award, ¶ 32 et seq.
⁶⁵ Id., ¶ 40 et seq.
⁶⁶ Counter-Memorial to the Request for the Stay of Enforcement of the Award, ¶ 105 et seq.
⁶⁷ Transcript of the hearing, p. 108:3-13.
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and 53(1) of the ICSID Convention, as well as Rule 54(1) of its Rules of Arbitration.
108. Furthermore, no risk has been demonstrated that Telefónica would be financially unable to reimburse the amount of the Award if it were annulled; at most, there would be increased costs and delays in the corresponding proceedings due to their having to be conducted abroad, should Telefónica fail to voluntarily reimburse Colombia for the amounts obtained in the meantime through enforcement of the Award.
109. With regard to Telefónica, the Committee considers that Colombia's financial inability to pay the amount set forth in the Award has not been demonstrated either.
110. The additional delay in that payment, should the stay of enforcement of the Award be extended, would, in a sense, be offset by the interest that Colombia was ordered to pay by the Arbitral Tribunal. However, as was rightly noted in Eiser Infrastructure Ltd. v. Kingdom of Spain, the payment of post-award interest is intended to “compensate for the deprivation of the principal amount until the award is paid, but is not directly related to the issue of the enforcement of the award"⁶⁸.
111. Furthermore, the Panel acknowledges that the risk and difficulties for Telefónica in obtaining enforcement of the award against Colombia, should Colombia fail to pay voluntarily, may increase over time. This is particularly true given that, as Colombia has acknowledged, it has been ordered to pay in other investment arbitration cases⁶⁹ and, consequently, the number of its creditors may gradually increase.
112. If it were unable to obtain voluntary payment of the Award, the interest alone would not, moreover, constitute sufficient compensation for Telefónica⁷⁰.
⁶⁸ See ACL-15-ENG, Eiser Infrastructure Ltd. v. Kingdom of Spain, ICSID Case No. ARB/13/36, Decision on the Stay of Enforcement of the Award, March 23, 2018, ¶ 60 (translation by the Committee).
⁶⁹ Reply to the Request for the Stay of Enforcement of the Award, ¶ 109.
⁷⁰ Similarly, ARL-37-ENG, Eurus Energy Holdings Corporation v. Kingdom of Spain, ICSID Case No. ARB/16/4, Decision on the Request for Continuation of the Stay of Enforcement of the Award, ¶ 110.
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113. In light of the foregoing, a weighing of the advantages and disadvantages arising for each Party from maintaining the stay of the Award or lifting it suggests that Telefónica would be more adversely affected if Colombia's request were granted without the provision of any guarantee than Colombia would be if its request were granted on the exact terms in which it is made.
114. However, this does not necessarily imply that Colombia's request to maintain the stay should be denied if it is accompanied by the provision, by the Applicant, of a guarantee that mitigates the risks arising therefrom for Telefónica and thereby achieves a better balance of interests than would result from such a denial.
115. The decision on the admissibility of Colombia's request for the stay depends, therefore, given the particular circumstances of this case, on a concomitant decision regarding the admissibility of the Committee's determination that Colombia provide a guarantee in order to maintain the stay.
116. This is the point that will be examined in the following section of this decision.
117. After carefully examining the circumstances alleged by both parties, the Committee considers that any of the additional risks faced by the Parties, whether due to the immediate lifting of the stay or its continuation, can be mitigated, regardless of the Committee's decision, through the provision of a guarantee by the party benefiting from a decision favorable to its position in this request.
118. In fact, the additional risk of collection of the amount of the Award by Telefónica would be neutralized by the provision of a guarantee by Colombia, as requested by Telefónica.
119. Likewise, the risk of additional difficulty in obtaining reimbursement from Colombia for the amounts paid by it pursuant to the Award prior to the decision on the request for annulment
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could be neutralized by Telefónica through the provision—as it offered to do—a guarantee on the amounts collected or depositing them in an escrow account.
120. In summary: (i) if the Committee were to grant Colombia's request, there would be no financial damage to Telefónica if Colombia provided a payment guarantee through a bank; and (ii) if the Committee were to deny it, there would also be no financial damage to Colombia if Telefónica were required to provide a guarantee for the amounts it manages to collect or to deposit them in an escrow account.
121. In this case, Telefónica accepted both possibilities, that is, both the provision by Colombia of a guarantee, which constitutes its alternative request⁷¹, and the deposit in escrow of any amount collected prior to the decision on the request for annulment⁷².
122. Colombia, for its part, opposed providing any guarantee, since, in its view: (i) the ICSID Convention does not authorize ad hoc committees to make the stay of enforcement of the award conditional upon the provision of guarantees; (ii) Telefónica has not demonstrated that such guarantees are necessary in this proceeding; (iii) with such guarantees, Telefónica seeks to place itself in a more advantageous position regarding the enforcement of the Award than it would be in if Colombia had not exercised its legitimate right to request annulment⁷³.
123. However, nothing in the Convention or the ICSID Rules prevents the Committee from ordering the provision of guarantees in connection with the stay of enforcement of the award. The Committee's authority to do so derives from its powers to conduct the proceedings and resolve issues not provided for in the Convention. To date, no other committee has decided otherwise. For all of the foregoing reasons, it must be understood that the Committee has jurisdiction to do so⁷⁴.
⁷¹ Counter-memorial to the Request for the Stay of Enforcement of the Award, ¶ 136, (c), (i); Rejoinder to the Request for the Stay of Enforcement of the Award, ¶ 158, (c), (i).
⁷² Rejoinder to the Request for the Stay Enforcement of the Award, ¶¶ 24 and 103.
⁷³ Reply to the Request for the Stay of Enforcement of the Award, ¶ 10.
⁷⁴ Cf. ICSID, Updated Background Paper on Annulment, March 2024, ¶ 60.
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124. It is true that, as Colombia points out, in the decision rendered in the case of 9REN v. Spain by the ad hoc Committee, the provision of a guarantee by Spain in favor of the claimant was rejected for the duration of the stay of enforcement⁷⁵.
125. This does not, however, preclude a different decision in this case, since the facts of the 9REN case were very different: (i) 9REN had no means to reimburse Spain if it received the amount of the award, so there was a real risk that Spain would not recover that amount⁷⁶, which is not the case here; and (ii) 9REN acknowledged that, at that time, there was no indication that Spain might be prevented from paying the amount of the award⁷⁷, an acknowledgment that does not exist in these proceedings with respect to Colombia, whose willingness to pay voluntarily and immediately was called into question by Telefónica⁷⁸.
126. In light of the foregoing, the Committee does not believe that, in this case, the provision of a guarantee by Colombia would leave Telefónica in a better position than it would be if the annulment had not been sought: in fact, the duration of the annulment proceedings could work against Telefónica if the award remained stayed without any guarantee from Colombia.
127. Given the fundamental decision-making criterion set forth above⁷⁹, the question arises as to which solution, under the circumstances of the case sub judice, best balances the interests of the Parties: (i) Dismissal of Colombia's request, with the lifting of the stay and the provision of a guarantee by Telefónica or the mandatory deposit by Colombia of the amounts it
⁷⁵ ARL-0011-ENG, 9REN Holding S.a.r.l. v. Kingdom of Spain, ICSID Case No. ARB/15/15, Decision on the Stay of Enforcement of the Award, November 19, 2021, ¶¶ 140 and 144 b.
⁷⁶ Id., ¶ 133.
⁷⁷ Id., ¶ 135.
⁷⁸ Counter-memorial to the Request for the Stay of Enforcement of the Award, ¶¶ 106 et seq.; Rejoinder to the Request for the Stay of Enforcement of the Award, ¶¶ 88 et seq.; Respondent's Opening Arguments in Annulment, slide 17.
⁷⁹ Supra, ¶ 99.
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manages to collect into an escrow account; or (ii) Granting of Colombia's request, subject to the provision of a guarantee therefor.
128. Dismissal of Colombia's request would eventually require it to begin paying the Award, which could be annulled in whole or in part, and it would, in that case, have to recover the amount advanced from the escrow account created for that purpose or by enforcing a guarantee provided by Telefónica on the amounts collected. In the meantime, Colombia would be deprived of the use of those funds, with the potential financial and social consequences it alleged in its briefs.
129. Granting the request to maintain the stay through the provision of a guarantee, on the other hand, would relieve Colombia of those consequences, without causing any damage to Telefónica, which would have guaranteed payment of the amount of the award in the event that the award is not annulled by the Committee.
130. The second alternative is, therefore, the least burdensome solution for either Party and the one that best serves the interests of each in these proceedings.
131. The Committee therefore considers that the stay of the enforcement of the Award should be maintained, provided that Colombia provides a guarantee to Telefónica regarding its compliance.
132. The Committee considers it sufficient for the guarantee to focus on the award regarding compensation for damages and attorneys' fees, without justifying the inclusion of the ancillary obligation to pay interest, the total amount of which has not yet been quantified. The Committee also does not consider it justified to add to said guarantee any written commitment acknowledging the binding force of the Award and the obligations arising therefrom, which would be redundant not only in view of the guarantee but also of the binding obligation assumed by the Colombian State upon ratifying the ICSID Convention.
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133. For the reasons set forth above, the Committee decides:
a. To grant, in favor of Colombia, a stay of enforcement of the Arbitral Award rendered on November 12, 2024, until the Committee rules on the request for its annulment;
b. To order Colombia to provide an irrevocable bank guarantee in favor of Telefónica, in the amount of US$379.804.275,55, plus €4.300.824,32, valid until the Committee rules on the request for annulment;
c. Direct that said guarantee be issued by a first-class international bank;
d. Direct Colombia to submit to the Committee, no later than February 9, 2026, proof of the issuance of the guarantee under the aforementioned terms.
134. The Committee reserves the right to amend this Decision at any time if prevailing circumstances change.
135. The Committee's decision regarding the costs of Colombia's request to continue the stay is reserved for determination in the Committee's final decision on the request for annulment.
136. All other requests are denied.
On behalf of the Committee,
Signature
Dário Moura Vicente,
President of the Committee
Date: January 9, 2026