Similar Facts, Dissimilar Outcomes: The Relevance of Treaty Protection in the Telefónica and América Móvil v. Colombia Cases

Abstract

This article, through the study of two investment arbitration cases against Colombia in the telecommunications sector, revisits a core premise of investment arbitration: the centrality of the applicable treaty. Building on an almost identical background —same regulatory evolution, same conduct of the authorities and the same domestic arbitral award— the América Móvil and Telefónica v. Colombia cases ended in opposite results. The difference did not lie in the “complexity” of the dispute, but in the international frameworks at play: the Spain–Colombia BIT opened the door to a fair and equitable treatment claim, while the Colombia–Mexico–Venezuela FTA limited the case into an expropriation claim dependent on proving a right that never existed. The article shows how the treaty does not merely frame the claim; it actively shapes the decision.