La historia detrás del fallo a favor de Colombia en el caso Electricaribe

Es noticia relevante el triunfo de Colombia en un tribunal internacional, ante el cual interpuso la empresa española Gas Natural Fenosa (hoy Naturgy), controlante de la execrada Electricaribe, una controversia y cuya pretensión era recibir una indemnización de casi $5 billones por una supuesta “expropiación” de la cual habría sido objeto la operadora de red del Caribe colombiano.

Por: AMYLKAR D. ACOSTA*

14 de marzo de 2021.  La historia es esta: A raíz del pésimo servicio que venía prestando desde tiempo atrás Electricaribe, incumpliendo lo que dispone la ley de servicios públicos, al no hacerlo con la eficiencia, calidad y desde luego continuidad requeridas, pero sobre todo ante la inminencia de la cesación de pagos a sus acreedores y a los generadores a la que estaba abocada y el consiguiente apagón, fue menester su intervención y toma de posesión por parte de la Superintendencia de Servicios Públicos, la cual se hizo efectiva el 15 de noviembre de 2016.

La situación financiera de Electricaribe estaba tan comprometida que, según la auditora externa Deloitte, la empresa estaba en un “claro riesgo de inviabilidad financiera”. Su situación, entonces, no daba más espera.

Al no haberse llegado a un entendimiento que pudiera sortear dicha controversia mediante el arreglo directo entre las partes, GNF procedió a interponer una demanda el 15 de junio de 2018, temeraria por lo demás, ante el Centro Internacional de Arreglo de Diferencias relativas a Inversión (Ciadi), organismo dependiente del Banco Mundial y con sede en Washington.

Para ello, se escudó en el Tratado bilateral de inversión entre el Reino de España y la República de Colombia firmado en marzo de 2005, el cual entró en vigor en septiembre de 2007. En actitud desafiante e intimidatoria GNF manifestó que “la protección a los inversionistas es condición indispensable para que recursos del exterior continúen llegando”.

Alegaron ante ese tribunal una supuesta “expropiación gota a gota” por parte del Estado al intervenir a Electricaribe y tomar posesión de la misma. Y, en el colmo de su avilantez, después de todo el daño infligido a los usuarios y al país tuvieron la osadía de reclamar una indemnización.

El entonces ministro de Minas y Energía Germán Arce le salió al paso a la avanzada ibérica contra el interés de la Nación y les habló claro: “una intervención no es una expropiación, es el resultado de un incumplimiento de una prestación de servicio”.

Por su parte, el superintendente de Servicios Públicos José Miguel Mendoza les dijo enfáticamente que “aquí no ha habido expropiación de ninguna índole”. Y añadió, en forma tajante,“la intervención es una figura reconocida internacionalmente… Existe también en España y se ha usado en casos tan importantes como el de la Caja Castilla”. Y concluyó diciendo que  “el Estado colombiano no puede dejar de cumplir la ley, especialmente la ley de servicios públicos, ante la amenaza de demanda”. 

Con lo que no contaba Naturgy es que las cosas cambiaron en Colombia desde que en 2011 se creó la Agencia Nacional de Defensa Jurídica de Estado, mediante la Ley 1444, con el propósito de fortalecer las competencias litigiosas públicas, sobre todo en el ámbito internacional. Desde entonces la Nación dejó de ser el paganine de siempre, dada la débil defensa de sus intereses frente a sus demandantes, que siempre llevaban las de ganar.

En el Laudo del Ciadi “se desestimaron las reclamaciones de los demandantes relativas a las violaciones del Tratado” de protección de inversiones entre España y Colombia. Se dice en el mismo que “el Estado no actuó de manera arbitraria o desproporcionada” al intervenir a Electricaribe. Es más, “el tribunal concluye que la intervención fue una medida adecuada e idónea en las circunstancias que prevalecían el 14 de noviembre de 2016”. Se trataba, nada más ni nada menos, afirma el tribunal, de “evitar un posible ´riesgo sistémico´ en el mercado de la energía, así como la incapacidad de la compañía para prestar el servicio de electricidad con la calidad y confiabilidad requeridas por la Ley”.

Además, denegó el argumento esgrimido por GNF de la presunta expropiación, al advertir que “la privación de los derechos de un inversionista en su inversión que lleve a cabo un Estado como resultado de un ejercicio válido del poder regulatorio no se considerará una expropiación indemnizable”. Así fué de contundente el Laudo del Ciadi.

En medio de los avatares y el suplicio que le ha significado al país la pandemia de la Covid- 19 y las aulagas fiscales que afronta el gobierno por el mayor gasto que demandan las medidas de apoyo a las empresas, la protección del empleo y las medidas de protección social, concomitante con los menores ingresos a consecuencia de la recesión económica en 2020, que se ha traducido en un nivel de endeudamiento inusitado e insostenible superior al 60% del PIB, esta noticia se recibe como un bálsamo de alivio.

Con este Laudo arbitral a favor de la Nación queda cerrado este capítulo ominoso de la trapisonda de Naturgy y de paso despeja el camino para que la liquidación de Electricaribe llegue a buen puerto.

*Ex ministro de Minas y Energía y miembro de número de la ACCE.

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