Colombia will face billion-euro power claim

Spanish energy company Gas Natural Fenosa is on the brink of filing a threatened ICSID claim against Colombia reported to recover €1.3 billion (US$1.39 billion) owed by customers near the country's Caribbean coast.

Colombia will face billion-euro power claim Credit: wikipedia.org/Luis Pérez

In a press release on its website, Gas Natural says it has been left with “no choice” but to file a claim under the Spain-Colombia free trade agreement after the Colombian authorities announced plans to liquidate its subsidiary, Electricaribe.As previously reported, Gas Natural sent a notice of dispute to the Colombian government in July, which triggered a six-month period of negotiations that has proved unsuccessful. Electricaribe provides electricity to 2.5 million people living near Colombia’s Caribbean coast but has recently been in a “chronic situation” owing to thousands of customers in the region defaulting on their electricity payments, Gas Natural says.The company claims that the current regulatory framework does not take into account problems presented by the region, which is one of the poorest in Colombia and has a payment default rate of 80%, partly as a result of low levels of development and widespread fraud.In 2015, the price of electricity in Colombia rose by 34%, which increased the rate of default.Gas Natural says that the government has failed to properly help the police to prosecute those avoiding payment. Although it has filed more than 16,000 complaints of fraud (5,000 in the last two years) there have only been 85 convictions.It says that €45 million (US$48 million) of the €1.3 billion it is claiming is owed by public entities, which it says are part of the "culture of avoidance" in the region.In its press release, the company reaffirms its willingness to maintain an “open dialogue” with Colombia, but says the state’s actions are “contrary to the spirit” of the EU-Colombia FTA and the principles of the Organisation for Economic Co-operation and Development.Counsel for both sides of the dispute have yet to be confirmed. Freshfields Bruckhaus Deringer LLP is already acting for claimants in two other ICSID cases against Colombia and has previously advised Gas Natural in a multibillion-dollar gas-pricing dispute with Algeria’s Sonatrach, but confirmed it was not acting in this dispute.Three Crowns partner Carmen Martinez Lopez has also acted for Gas Natural and seems a likely contender for this instruction. King & Spalding LLP is advising a joint venture between Gas Natural and Italy’s Eni in a pending ICSID claim against Egypt.  Colombia has previously used a team from Dechert led by partner Eduardo Silva Romero in Paris, who is himself Colombian.The case will be the fourth ICSID claim registered against Colombia. Canada’s Eco Oro filed a claim in December after being deprived of its mining rights on environmental grounds. The company is backed by funders that stand to collect around half of the arbitration proceeds.The state also faces a claim by Mexican telecoms group América Móvil over the alleged expropriation of what was once the country’s largest mobile phone provider; and a case brought by Swiss pharmaceuticals group Novartis over plans to impose a price cut on a drug used to treat blood cancer.

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