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# When Does a Treaty's Offer to Arbitrate Actually Become an Agreement?
- URL: https://internationalarbitrationobserver.com/when-does-a-treatys-offer-to-arbitrate-actually-become-an-agreement/
- Published: 2026-09-21T21:45:17.000Z
- Updated: 2026-09-21T21:45:17.000Z
- Author: Pierluigi Salvati
- Tags: Investment Arbitration

The motion Colombia filed this month in Telefónica, S.A. v. Republic of Colombia (D.D.C.) is not a ruling — but it's worth reading twice.  
  
The facts are striking: a telecom concession contract containing an exclusive domestic arbitration clause; a reversion obligation the operators refused to honour; and, years later, an investment treaty arbitration over essentially the same dispute. In 2017, a domestic tribunal held that the contractual reversion obligation remained enforceable and ordered the operators to pay the value of the assets to Colombia.   
  
Later on, Telefónica commenced ICSID arbitration under the Spain–Colombia BIT: in 2024, the tribunal held that Colombia had breached the BIT by frustrating Telefónica's “legitimate expectations” and awarded Telefónica the same amount it had previously paid to Colombia under the domestic award.  
  
Colombia's motion now puts a fundamental question to the D.C. District Court. Under the FSIA, a foreign State is immune unless an exception applies. For the arbitration exception, the petitioner must establish that there was an agreement to arbitrate and that the award was rendered pursuant to that agreement. The court must determine those jurisdictional facts for itself.  
  
NextEra drew a fundamental distinction: the existence of an arbitration agreement is for the court to review de novo whereas whether a particular dispute falls within the scope of that agreement can be addressed on the merits.  
  
Colombia argues that, where a BIT contains only a standing offer to arbitrate disputes “regarding matters governed by” the treaty, the question whether the submitted dispute falls within that offer is not merely a question of the scope, it is the question whether an agreement was formed at all. If the dispute falls outside the offer — Colombia says — there is no arbitration agreement and therefore no FSIA arbitration exception to immunity.  
  
That argument has an important ally: in its recent amicus brief in Kingdom of Spain v. Blasket Renewable Investments LLC, the U.S. Solicitor General expressly argued that NextEra was “incorrect” insofar as it treated the scope of an arbitration agreement as distinct from the question of whether the investor and the State agreed to arbitrate the dispute at all.  
  
Nothing is resolved: Colombia's motion is just a motion and the ICSID annulment proceedings are also still pending. But the question is far more consequential: where exactly is the line between the **existence** and **scope** of an arbitration agreement when that agreement is formed through an investment treaty's standing offer?