MJIEL Vol 15 Issue 1 2018 - Article 5

Colombia's Land Restitution Programme and International Investment Law:
Normative Tensions and Possible Convergences Concerning Investor Diligence
Rafael Tamayo-'lvarez
 
ABSTRACT: This article analyses the normative tensions existing between Colombia's land restitution programme for the reparation of victims forcibly displaced during the internal armed conflict and international investment law. Specifically, the focus is on the qualified conception of the good faith principle as a form of diligent behaviour that informs land restitution proceedings. This conception entails an utterly demanding threshold for diligent behaviour as a condition for obtaining monetary compensation for property interests lost on restored lands. In the particular instance of foreign investors, conditioning compensation upon demonstration of a severe standard of good faith may run afoul of investment treaties' provisions on expropriation and fair and equitable treatment. Nonetheless, the lack of diligent behaviour by foreign investors is a matter of growing concern in the context of investment treaty arbitration. As a result, there is an emerging duty of good diligence incumbent upon foreign investors, informed by normative sources such as the principle of good faith. Therefore, the article also explores possible converging points between the Colombian land restitution programme and international investment law under the prism of investor diligence.

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