The Claimants further assert that this "holistic" approach is supported by arbitral jurisprudence. 23. - 22 May 2015, Chevron Post-Hearing Letter on BIT Proceedings in Chevron v Donziger et al March 27, 2019. Dr. Coronel also refers specifically to Article 1465 of the Ecuadorian Civil Code, By relying upon Articles 1576 CC and 1580 CC, Dr. Coronel states that a joint reading of the definition of "release" ("liberacin") found at Articles 1.12 and 5.1 of the 1995 Settlement Agreement confirms the intention of the parties not only to release TexPet but also "all persons and entities related to TexPet " (paragraph 20). Als het aan deze term telkens dezelfde betekenis zou hechten, zou de daarvan gegeven definitie circulair zijn. XII BIT gegeven uitleg is bovendien onbegrijpelijk omdat de term investment in de door het hof daaraan toegekende betekenis niet tijd- of plaatsgebonden is, terwijl de term deel uitmaakt van het tussen de VS en Ecuador gesloten BIT dat wel degelijk temporele en geografische grenzen heeft. In the Tribunal's view, those parties' objective intention may therefore provide the answer to this important question; but, again, it is not a question which the Tribunal can properly answer at this early stage of this arbitration, not without affording to the Respondent the requisite opportunity to adduce relevant and admissible evidence as to such an objective intention. ", In 2000, the New York District Court again dismissed the. Claims arising out of Texaco's historical activities under oil concession contracts, and the alleged Government's misconduct in subsequent domestic litigation against Texaco for environmental remediation (in the so-called "Lago Agrio" judgment of 2012, the Ecuadorian court ordered Chevron and TexPet to pay USD 9.5 billion for environmental damage). It is arguable that if some part of the dispute before this Tribunal were to have been submitted to the national courts, for example by way of a counterclaim, that part of the dispute would be subject to the fork in the road provision. Nu Chevron een beroep doet op het recht, haar toegekend in art. Dit oordeel is geenszins onbegrijpelijk. Chevron stelt dat de term investment in het BIT en ook in de BIT-praktijk' ruim wordt opgevat en de gehele levenscyclus van een investering omvat, inclusief de afwikkelingsfase. The Respondent then proceeds to analyse the settlement agreements in the light of these legal materials; and it concludes that none of them exhibits these essential characteristics of an investment. 19). Finally, as regards this factual introduction, the Respondent submits that these BIT proceedings were commenced just months after the U.S. District Court for the Southern District of New York had brought to an end the AAA arbitration proceedings which had been commenced by TexPet and Chevron against the Respondent. The Claimants further emphasise that all their claims satisfy the applicable "prima facie" standard of review, asserting that the Respondent has been unable to rebut the weight of the legal materials supporting the "prima facie" test. The Respondent emphasises that this Settlement Agreement does not include any generic reference to "parent companies", but refers only to TexPet's parent at the time, namely Texaco, The Respondent also notes that the language of the Municipal and Provincial Releases indicates that the Claimants' lawyers were well able to include a term which clearly covered parent corporations in the release when the parties actually intended to do so: those agreements all expressly extend the release to "any other affiliate, subsidiary or other related companies". It was of course an "agreement" whereby TexPet in fact incurred substantial expenditure and paid significant monies to actual and putative claimants in Ecuador; but TexPet's activities thereunder cannot fairly be described, by themselves, as having been made as an "investment". Claimants' Counter-Memorial on Jurisdiction, at para. XII de betekenis heeft die daaraan in het normale spraakgebruik wordt toegekend, in plaats van de gedefinieerde betekenis. The Tribunal need not take my word for this, for several U.S. federal judges have noted that the evidence has "sent shock waves through the legal community", and shows activity that should be recognized as fraud by any Court. 8 Regarding the Expert Procedure on Taxes et al. The Claimants also maintain that Chevron has standing to enforce the settlement agreements against the Respondent. In particular, it is asserted that the Respondent is seeking to have it "both ways": by insisting here that Chevron is a stranger to TexPet's investments for the purpose of these arbitration proceedings, whilst in the. But that is something that depends upon the form and content of the decision of this Tribunal: it is not an inevitable consequence of the Tribunal exercising its jurisdiction. Oct. 27, 2021. Het hof heeft in rov. Accordingly, the Tribunal decides to reject this part of the Respondent's objections based upon Third Party Rights. The Claimants contend that the plain language of Articles VI(2) & VI(3) of the BIT indicates that the fork in the road provision applies only to investment disputes and, moreover, only to those investment disputes submitted by the national or company concerned. The lawsuit must arise out of the same events and occurrences alleged in the Aguinda Complaint filed in this Court on November 3, 1993. First, Chevron is a "Releasee" under the 1995 Settlement Agreement made with the Respondent. Wil deze omschrijving niet circulair zijn, hetgeen uit een oogpunt van logica niet voor de hand ligt, dan dient de terminvestment op de hiervoor in 5.1 onderstreepte plaatsen echter wl naar normaal spraakgebruik te worden uitgelegd, aldus nog steeds het hof. First of all, there is no indication that in the case of Lago Agrio or its antecessor Lago Inda [Aguinda]; secondly, the Republic of Ecuador never interfered with the judicial process of Lago Agrio. It is argued that "but for" those concession agreements, TexPet would not have conducted oil operations in Ecuador and (allegedly) caused the environmental damage which is the foundation of the. ", "This Treaty shall apply to investments existing at the time of entry into force as well as to investments made or acquired hereafter.". Chevron and TexPet v. Ecuador (I) | Investment Dispute Settlement Navigator | UNCTAD Investment Policy Hub Investment Dispute Settlement Navigator Select country Known treaty-based ISDS cases: Total: 1190 Pending: 368 Concluded: 809 Unknown: 13 Updated as of 31 December 2021 Concluded original arbitration proceedings: 302 100 157 230 Home > The Claimants contend that the Respondent is "blowing hot and cold" in that it has affirmed jurisdiction over Chevron based on TexPet's alleged conduct in the. The Claimants notes that the Respondent agrees that "Article 9.4 cannot be interpreted to mean the releasees may not invoke and enforce the releases that the Agreement expressly provides to them." The Claimants contend that, although the Respondent " pays lip service" to the BIT's language, it fails to address the Claimants' submissions that: (i) the text and structure of Article I(1)(a) is "broad and all-encompassing" and that other provisions of the BIT similarly indicate that the parties intended the definition of "investment" to be as broad as possible; (ii) arbitral jurisprudence supports an expansive interpretation of the BIT's definition; and (iii) the investment falls squarely within at least three separate categories of "investment" listed in Article I(1)(a). Sign In. The Respondent also distinguishes the decision in the. Het hof was van oordeel dat dit laatste het geval is met betrekking tot de in art. Thus, the Claimants submit that TexPet can be an Chevron's "investment" in Ecuador. As explained below in Part IV of this Award, the Tribunal is required under the BIT and the Arbitration Agreement to take account of the factual allegations pleaded by the Claimants as regards the Respondent's jurisdictional objections. Moreover, the Claimants contend that the materials cited by the Respondent in fact demonstrate that the Claimants have consistently taken the view that the release extends to parent corporations, i.e. The triple identity test was developed to address questions of res judicata and to identify specific issues that have already been determined by a competent tribunal. 2. The Respondent specifically rejects the Claimants' suggestion that it is seeking to impose novel jurisdictional requirements; and it seeks to explain that it is simply maintaining that the Claimants have not established that the dispute is with respect to an "investment" as required by the BIT. Applying the standard of review described above, the Tribunal specifically rejects this separate jurisdictional objection. Het betoog van Ecuador houdt niet in dat onderscheid moet worden gemaakt tussen verschillende fasen van een investment, maar dat moet worden onderzocht of sprake is van een investment in de zin van dit verdrag. SAN RAMON, CA., March 4, 2014 - The U.S. District Court for the Southern District of New York today ruled that the $9.5 billion judgment against Chevron Corporation in Ecuador was the product of fraud and racketeering activity, finding it unenforceable. II lid 7 BIT, wordt van belang of Chevron aanspraak kan maken op dat recht en dient de toepasselijkheid van het BIT ratione materiae en ratione temporis te worden beoordeeld. stand for]. 31 WVV. On the basis that TexPet's dispute with the Respondent under the BIT relates to an investment agreement, consisting of the 1973 Concession Agreement either by itself or together with the 1995 Settlement Agreement, the Tribunal rejects the Respondent's jurisdictional objection under Article VI(1)(a) of the BIT as regards TexPet's claims in this arbitration. The Claimants submit that the Respondent attempts both to limit the scope of the 1973 Concession Agreement and to minimise the relationship between the settlement agreements and TexPet's original investment. Article 41 of the 1999 EMA grants to individuals the right to bring a complaint to enforce "collective environmental rights"; and Article 43 allows individuals "linked by a common interest and directly affected by the harmful action or omission" to file a complaint "for damages and for the deterioration caused to health or the environment. In addition, the Jurisdiction Hearing was attended by the Tribunal's Administrative Secretary, with Mr. David Kasdan and Mr. Dante Rinaldi as shorthand-writers and Mr. Jose Antonio Carvallo-Quintana and Mr. Thomas Gonzlez Castro as interpreters. Accordingly, in summary, the Tribunal's general approach in deciding the Respondent's jurisdictional objections under the prima facie standard here requires an assumption of the truth of the relevant facts alleged by the Claimants in the Notice of Arbitration (subject to the qualifications described above), excluding however a disputed fact uniquely relevant to the existence or exercise of the Tribunal's jurisdiction. Awarding Claimants any sums that the nominal Lago Agrio Plaintiffs collect against Claimants or their affiliates in connection with enforcing a Lago Agrio judgment. 17, 2011) Lago Agrio plaintiffs' legal brief arguing that Chevron should be enjoined from participating in an arbitration under the Bilateral Investment Treaty (BIT) in which Chevron is asking the arbitrational tribunal to . As the Claimants' Counsel rightly submitted at the Jurisdictional Hearing: "Environmental remediation is a normal and natural part of an oil concession project" (D1,129). As the Parties to the present dispute have recognized, the. - 21 Nov 2014, Decision on Track 1B The Respondent reiterates its position that the issues before this Tribunal are identical to the issues raised by the Claimants in other proceedings, and that, in particular, the issue central to Chevron's current claim in contract (i.e. Chevron believes the dramatic evidence in the Crude video outtakes and recently produced documents has brought this entire situation into a fundamentally new phase. Judgment of the Supreme Court of Canada (Yaiguaje et al. In particular, Chevron contended that TexPet, TexPet's parent company, affiliates and principals received a full and complete release from any such liability under the 1995 Settlement Agreement (thereby including TexPet's future indirect owner, Chevron); that the Lago Agrio plaintiffs lacked standing to bring any claims under the 1999 EMA; and that the 1999 EMA should not be applied retroactively to the Consortium's operations which had ended many years earlier, in 1992. 2007-02/AA277 Nature of the proceedings: International Type of case: Investor-State Economic sector: Mining and quarrying Extraction of crude petroleum and natural gas (oil) Date of introduction: 21 Dec 2006 Status of the case: Decided in favor of investor The question for this Tribunal is in essence whether the Respondent has or has not violated rights of the Claimants under the BIT because of the way in which the Respondent has, through its organs, acted in relation to the settlement agreements. "Accordingly, Claimants request an Order and Award granting the following relief: 1. After more appeals and higher courts in Ecuador, it was ordered that Chevron had to pay $9.5 billion for damages done in the area. hof aan art. The Respondent submits that the Claimants' lengthy submissions on the meaning of the phrase "relating to" in Article VI(1)(a) are wrong. The Respondent submits, however, that the Municipal and Provincial Releases are irrelevant because neither the Respondent nor PetroEcuador was a party to these settlements; and, consequently, the Claimants' claims must depend only upon the 1995 Settlement Agreement. On 26 July 2010, the Respondent submitted its Memorial on Jurisdiction, disputing the Tribunal's jurisdiction in this arbitration to decide the Claimants' claims in this arbitration (on grounds of jurisdiction and admissibility). Chevron Corporation, Texaco Petroleum Corporation Respondent state: Ecuador Applicable arbitration rules: UNCITRAL Arbitration Rules (1976) Investment treaty: Ecuador-United States BIT Applicable legal instruments: Ecuador-United States BIT Economic sector: Mining and quarrying, including hydrocarbons (oil and gas) As a first point, I would like to talk about the present justice system in Ecuador. In 1993, local residents started a class action lawsuit to force former well operator Texaco (acquired by Chevron Corporation in 2001) to clean up the area and provide for the care of the 30,000 inhabitants affected by oil contamination. Fifth, Chevron has standing to assert BIT claims against the Respondent as a result of its status as TexPet's indirect shareholder. Dec/2022: Nici qid Ultimativer Kaufratgeber Beliebteste Nici qid Aktuelle Angebote Preis-Leistungs-Sieger . Finally, the Claimants contend that the Respondent's attempt to portray the Claimants' claims as being essentially contractual claims dressed up as treaty claims should be rejected by the Tribunal. Chevron prides itself on constructive relations with Governments that employ widely varying systems and policies of Government and hold wildly varying attitudes toward the Government policies of the United States. This Award does not decide the merits of any of the Claimants' claims or any of the relief formally pleaded in the Claimant's Notice of Arbitration and Memorial on the Merits. The Respondent contends that, in determining whether a claimant has triggered a fork in the road provision, a tribunal must consider whether the claims asserted in the two actions have the same "fundamental basis". (rov. From 1965, TexPet, as the Consortium's first operator, conducted the physical work for the Consortium; but it was the Consortium as a whole that enjoyed the concession's profits and also bore the operational risks and any liabilities associated with its operations. The Tribunal also notes that the BIT's requirement addresses not a concession agreement but an investment which can, by its nature and form, precede and (as here) follow the contractual term of a concession agreement. The Parties' respective submissions are summarised in Part III above and their oral submissions at the Jurisdiction Hearing recorded at D1.86 & 184 and D2. On these facts alone, the Tribunal would not consider that Chevron could successfully plead any investment under the BIT for the purpose of establishing this Tribunal's jurisdiction over its claims in this arbitration; and, if its case stopped there, this Tribunal might decline jurisdiction over Chevron's claims under Article VI(1)(c) - subject only to Chevron's residual argument that it can still bring its claims as the indirect owner of TexPet. Ecuador had to confront, to face this with the limited resources it has, different legal cases. Those words require that, for the fork to be applied, not only must the dispute have been submitted for resolution but also that the dispute was submitted by the "national or company concerned" for resolution in the national courts. - 29 Aug 2016, Response to Contempt Motions This summary, although inevitably lengthy, does not attempt to describe all the submissions made by the Parties as regards the Tribunal's disputed jurisdiction in this arbitration. Winner of the ALPSP Award for Innovation in Publishing 2020. (c) in accordance with the terms of paragraph 3". XII BIT, waarin is bepaald dat het BIT slechts van toepassing is op. The Respondent notes that the Claimants highlight the "magnitude" of TexPet's original investment. 10 5. In asserting that these settlement agreements can independently qualify as investments, the Claimants emphasise that they fall squarely within the definition of "investment" in the BIT. Article VI(4): "Each Party hereby consents to the submission of any investment dispute for settlement by binding arbitration in accordance with the choice specified in the written consent of the national or company under paragraph 3. The, The dispute before this Tribunal has not been submitted by the Claimants to another forum. First, under Ecuadorian law, a party may seek specific performance of a contract, even if has suffered no damage from the other party's breach. In the Claimants' submission, the mechanism by which TexPet chose to comply with its obligations does not establish that those obligations did not arise from the 1973 Concession Agreement. De onderdelen 2.1-2.3 kunnen dus niet tot cassatie leiden. I lid 1 (a)(iii) BIT en had zij daarmee een investment in Ecuador in de zin van art. - 8 June 2015, The Shushufindi-55 Site Visit I lid 1 (a)(iii) BIT gedefinieerde term investment. I van het verdrag bepalend. Both terms must be less than X words apart. Similarly in this case, so the Respondent contends, Chevron's alleged dispute with the Respondent falls outside the scope of the relevant arbitration agreement contained in Article VI of the BIT. 31 lid 4 WVV). Chevron and Texaco v. Ecuador (1) Guided Tutorial Chevron and Texaco v. Ecuador (1) You are not logged in. The Claimants contend that the Respondent appears to embrace the Claimants' interpretation of this phrase, merely arguing that there is no "legally significant connection" between the dispute and the original concession agreements. These circumstances militate in favour of not assigning interpretative weight to the MOU when interpreting the 1995 Settlement Agreement. First of all, we have to concentrate the existence of Courts and other Tribunals to marginal places allowing better access to justice. 625 (S.D.N.Y. Moreover, so the Respondent submits, the settlement agreements do not contain the rights that the Claimants allege in their claims. It is asserted that, whatever statements were made by Texaco, they cannot bind the Claimants, and were, in any event, related to an entirely different dispute that that at issue in the. Zoals hiervoor in 4.4.3 is overwogen, staat art. Dr. Grigera Nan: In their Notice of Arbitration dated 23 September 2009, the Claimants notified the Respondent of their appointment as co-arbitrator of Dr. Horacio A. Grigera Nan, of 2708 35th Place NW Washington, D.C. 20007, United States of America; Professor Lowe: On 4 December 2009, the Respondent notified the Claimants of its appointment as co-arbitrator of Professor Vaughan Lowe QC, of Essex Court Chambers, 24 Lincoln's Inn Fields, London WC2A 3EG, United Kingdom. TexPet and PetroEcuador made a further agreement dated 17 November 1995, effectively confirming TexPet's obligations in the 1995 Settlement Agreement (page 43). Dr Coronel also expresses the opinion that with the parties' use of the words "principales" and "subsidiarias" together, Article 5.1 should be read to mean that companies above and below those mentioned by name in this provision are to be covered by the release (paragraph 19). II lid 7 BIT. Ordering Ecuador to make a written representation to any court in which the nominal Plaintiffs attempt to enforce a judgment from the Lago Agrio Litigation, stating that the judgment is not final, enforceable or conclusive; 9. In the Tribunal's view, TexPet's claims under the BIT do "relate" to the 1973 Concession Agreement, even if (contrary to the Tribunal's decision above) the 1973 Concession Agreement were to be isolated from the 1995 Settlement Agreement and the Parties' dispute did not arise under or even "out of" that concession agreement at all. De klachten hebben betrekking op art. This offensive without limit started in 2003, when Ecuador informed Chevron and the demandantes of Lago Agrio that it would keep a neutral position in this case, and we refused to interfere with the justice administration to disqualify this claim. Use NEAR alone for X = 30 words. (b) company' of a party means any kind of corporation, company, association, partnership, or other organization, legally constituted under the laws and regulations of a Party or a political subdivision thereof whether or not organized for pecuniary gain, or privately or governmentally owned or controlled; "Any alteration of the form in which assets are invested or reinvested shall not affect their character as investment.". 81 lid 1 RO, geen nadere motivering nu deze klachten niet nopen tot beantwoording van rechtsvragen in het belang van de rechtseenheid of de rechtsontwikkeling. In particular, the Claimants submit that the Respondent's reliance on extrinsic materials is both unnecessary and inappropriate, given that the meaning of this phrase can be clearly established by applying the "ordinary" rules of interpretation in Article 31 of the Vienna Convention. The main thrust of his opinion seems to be that Article 1.12 broadly extends the release to all legal and contractual obligations and. ", (i) The dispute does not arise out of or relate to an investment in Ecuador, for the purposes of Article VI(1)(c) of the BIT; or, (ii) The dispute does not arise out of an investment agreement, for the purposes of Article VI(1)(a) of the BIT; and. In further support of this submission, the Claimants emphasise that in circumstances where an arbitration agreement requires that parties to the arbitration be "parties" to the contract containing the arbitration agreement, the courts have consistently held that a third party beneficiary should be treated as a party to the contract for the purposes of determining whether a tribunal has jurisdiction under the arbitration agreement. In the Tribunal's view, such wording would not limit an investment dispute to one only arising under a particular investment agreement but would include a wider range of disputes "relating to" the investment agreement. The Claimants reiterate that the issues and relief sought in the. In the Tribunal's view, assuming its case were to prevail, TexPet's remedies under the BIT in regard to such forms of investment (given its original investment) are not limited in this arbitration to compensatory damages for its own damage but could also include (as a matter of jurisdiction) its declaratory and other non-compensatory relief as a named signatory party to the 1995 Settlement Agreement. (i) "A declaration that the dispute is within the jurisdiction and competence of this Tribunal"; (ii) "An order dismissing all of Respondent's objections to the jurisdiction and competence of the Tribunal"; and, (iii) "An order that Respondent pay the costs of this proceedings, including the Tribunal's fees and expenses, and the costs of Claimants' representation, along with interest".146. (vi) Voor zover in cassatie van belang luidt de titel van het verdrag als volgt: "Treaty () concerning the Encouragement and Reciprocal Protection of Investment.". Het hof heeft, samengevat weergegeven, het volgende overwogen. 5. In the Tribunal's view, as considered above, the broad language of Article VI(1) of the BIT ("relating to") does not require such original contractual privity between Chevron and the Respondent; and moreover the term "between" in Article VI(1)(a) cannot be interpreted as requiring Chevron to be an actual signatory or named party to the investment agreement. Their respective submissions are summarised in Part III above and their oral submissions at the Jurisdiction Hearing recorded at D1,115ff and D2,240, 321 & 336. During the term of the 1973 Concession Agreement, the Consortium drilled 312 wells, developed 16 producing wells, built 18 production stations, installed extensive pipelines and constructed 6 base camps. Het BIT is gesloten tussen twee vreemde staten. v. Chevron) 7. The Claimants assert, in particular, that the word "principales" in the Spanish text of Article 5.1 should be construed as "parent corporation" and include Chevron as TexPet's parent. In 1964 heeft Ecuador aan TexPet een concessie verleend voor oliewinning en olie-exploitatie in het Amazone-gebied in Ecuador. Reply, paragraphs. Jus Mundi - Academic Research brings international law out of the archives and into the 21st century. The lawsuit must be brought by a named plaintiff in Aguinda. Together, this two-step release would discharge TexPet from any claims that the Respondent and PetroEcuador might have against TexPet concerning environmental impacts caused by the Consortium's operations. Second, the settlement agreements cover future parent corporations as owners. 13-cv-01112-REB-KLM) In the Tribunal's view, there could be no doubt that if the 1995 Settlement Agreement had been made during the contractual term of the 1973 Concession Agreement (say in 1975), it could only have been regarded as an elaboration of that agreement and thus clearly forming part of one overall investment agreement. Further, the Respondent asserts that Chevron has failed to establish that its indirect interest in TexPet has diminished as a result of the alleged wrongs committed by the Respondent. The Tribunal notes the broad definition of "investment" contained in Article I(1)(a) of the BIT, listing a wide variety of different forms ("investment' means every kind of investment."); and Article I(3) also provides that any subsequent alteration in the form of in which assets are invested or reinvested "shall not affect their character as investment." I en XII BIT moet worden betrokken. For purposes of dispute resolution under Articles VI and VII, a measure may be arbitrary or discriminatory notwithstanding the fact that a party has had or has exercised the opportunity to review such measures in the courts or administrative tribunals of a Party. The Claimants contend again, at some length, that their investment in Ecuador must be viewed holistically and, consequently, incorporates the settlement agreements. Second, in the alternative, the Claimants contend that, even if the settlement agreements are viewed independently of TexPet's original investment, these agreements qualify as a "stand alone" investment. The former term ("successors") might be more apt depending upon Chevron's "merger" with Texaco; but that is not a submission apparently made by Chevron, perhaps for reasons associated with the. A U.S. Federal Magistrate Judge recently stated that any country that does not recognize what has happened in Lago Agrio as a fraud has bigger problems than an oil spill. In the Claimants' submission, both of these contentions are wrong. before the Respondent has pleaded any defence on the merits, particularly in response to the Claimants' Memorial on the Merits), to assume that the facts pleaded by the Claimants in the Notice of Arbitration are true unless such factual pleading is incredible, frivolous, vexatious or otherwise advanced by the Claimants in bad faith. The International Arbitration: Chevron v. Ecuador While the Ecuadorian plaintiffs' (or "Lago Agrio Plaintiffs") claims were being heard in Ecuador's courts, Chevron filed an investor-State dispute against Ecuador. The Respondent next submits that this Tribunal lacks jurisdiction ratione materiae under the BIT because the Claimants have no prima facie case on the merits of their claims. HR 6 september 2013, ECLI:NL:HR:2013:BZ9225). Plainly, those costs cannot be recovered twice: but while further developments in the Lago Agrio litigation might affect the amount of any claim, they do not affect its admissibility in this arbitration. Zoals blijkt uit de titel en de preambule van het BIT, is het doel daarvan het stimuleren en beschermen van investeringen door onderdanen van een verdragsstaat in de andere verdragsstaat. It is further emphasised that Article VI(6) of the BIT provides that any arbitral award shall be final and binding on the Parties. The Claimants reject the policy reasons by reference to which the Respondent encourages this Tribunal to apply an "economic characteristics" threshold. The Tribunal refers to the opening statements made respectively by Chevron's General Counsel and the Respondent's Attorney-General, set out above in Part III of this Award. The Copper Mesa v. the Republic of Ecuador award of March 2016 is the first mining case in Latin America confirming the emergence of a trend in which social and environmental issues are at the core of the debate. - 10 Mar 2010, Claimants' Request for Interim Measures The Tribunal specifically rejects as imposing too high a prima facie standard the Respondent's submission at the Jurisdiction Hearing that the Claimants must already have established their case with a 51% chance of success, i.e. I. Voorts zou die uitleg ertoe leiden dat het woord 'investments' in art. This Wiki Note has not been submitted yet. v. Chevron) - 5 July 2019 Reconstitution of the Tribunal - 20 May 2020 Judgment of Argentina's Supreme Court of Justice - 30 July 2020 - 20 Jan 2016, Judgment of the Appeal Court of The Hague Voor zover de klachten van de onderdelen hieraan voorbijzien, falen zij om deze reden. Nederland is geen partij bij het BIT en is daaraan ook niet anderszins gebonden. According to the Respondent, these several disputes provide the general background to the various settlement agreements made by the Respondent, the municipalities, PetroEcuador and TexPet. In the context of factual issues which are common to both jurisdictional objections and the merits of the Parties' dispute, there is of course no like difficulty; but the Tribunal acknowledges the real difficulty of assuming under the prima facie standard the truth of a disputed fact unique to a jurisdictional objection which, if jurisdiction were then assumed and exercised, is never again addressed by the Tribunal during the arbitration proceedings. The purpose of the petition is for the Ecuador-based non-governmental organization (NGO), Fundacin Pachamamao, and IISD to request permission from the Tribunal to participate as amicus curiae in the present arbitration between Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador constituted under the UNCITRAL Arbitration Rules. - 29 Oct 2013, Decision of the Dutch Supreme Court to Uphold Award Bescherming vindt plaats door een eerlijke en redelijke behandeling van investeringen. - 6 Sept 2010, Claimants Memorial on the Merits 14. In zijn memorie van grieven nr. 12). 21 "daarnaast heeft overwogen over het aldaar bedoelde ervaringsfeit, kan niet tot cassatie leiden reeds omdat het desbetreffende oordeel van het hof zelfstandig wordt gedragen door hetgeen aan het begin van rov. The answer would appear to be fairly simple, but in the case of the legal battle between Ecuador and Chevron, it's anything but. The short answer to the fork in the road issue in the present case is that the fork is stated by Article VI(3)(a) of the BIT to be inapplicable if the "national or company concerned has not submitted the dispute for resolution." If the dispute cannot be settled amicably, the national or company concerned may choose to submit the dispute, under one of the following alternatives, for resolution: (c) in accordance with the terms of paragraph 3. In cassatie kan worden uitgegaan van de volgende feiten: Chevron heeft verweer gevoerd. The Claimants recount that, whilst the. al., Nos. - 21 Jan 2013, Petitioners' Memorandum of Law in Support of Motion for Leave to Register the Judgment Pursuant to 28 U.S.C. In addition, Claimants' representatives have met with various government officials on numerous occasions seeking to resolve this dispute. 1022 lid 1 Rv en art. Amongst other factors, Dr. Barros indicates that: (i) if the signatory parties had wished to use the term "principales" according to the meaning to be assigned to such a term in an agency relationship ("principal" or "mandante"), they would have mentioned it together with the term "agents" ("agentes" or "mandatarios") in Article 5.1 - which significantly was not the case (paragraph 26 of Dr. Barros' report); and (ii) a harmonious and good faith interpretation of the 1995 Settlement Agreement militates against construing the release as only covering companies or persons in the ownership structure (including TexPet), as such structure then existed and not also companies or persons that were to come into the structure at a later date (paragraphs 31 & 33 of the Barros report). 2001), 93 Civ. v. Chevron) Poderdante" [i.e., within a legal context - this is what the references For. I (a), aanhef, "and includes" volgt dat de verschijnselen genoemd in de daarop volgende opsomming (i) tot en met (v), tot onderdeel van het begrip 'investment worden gemaakt. This victory, though, was short-lived. We know our deficiencies, but we are working to correct them. Onderdeel 2.1 faalt. 3. Chevron en TexPet hebben zich in de arbitrage op het standpunt gesteld dat Ecuador aansprakelijk is voor de schade die zij hebben geleden als gevolg van een ontoelaatbare vertraging in de afdoening van zeven, voor Ecuadoraanse gerechten gevoerde, door TexPet tegen Ecuador aanhangig gemaakte procedures. a judgment with respect to which all appeals have been exhausted), if any, entered against it in a Foreign Lawsuit in favor of a named plaintiff in Aguinda, subject to Texaco Inc.'s reservation of its right to contest any such judgment under New York's Recognition of Foreign Country Money Judgments Act, 7B N.Y. Civ. At the moment, the Claimants have decided that they don't want to litigate against the Claimants of Lago Agrio, but they want to replace these Claimants with the Republic of Ecuador as part of the controversy, and they fabricated a crisis in the justice administration and a problem of Government in Ecuador. VI lid 1, aanhef en onder c, BIT, op grond waarvan "an investment dispute is a dispute between a Party and a national or company of the other Party arising out of or relating to () (c) an alleged breach of any right conferred or created by this Treaty with respect to an investment" (onderstreping hof). The Respondent agrees with the Claimants that "Article 9.4 cannot be interpreted to mean that releasees may not invoke and enforce the releases that the Agreement expressly provides to them." the scope of the release in the 1995 Settlement Agreement) is exactly the same issue which Chevron has been asserting in the, The Respondent rejects as "factually incorrect" the Claimants' argument that they have not triggered the BIT's fork in the road provision because they have not submitted this dispute to another forum, but are merely asserting defensive measures in the, In this regard, the Respondent submits that it is irrelevant that the Claimants did not join the Respondent as a party to the. In regard to the Respondent's jurisdictional objections, the Parties made opening oral submissions on the first day of the Jurisdiction Hearing. Given its centre of gravity, for present purposes, the Tribunal here relies principally upon the Spanish text and Ecuadorian law, as submitted by the Parties. In any event, the Respondent further submits that Chevron has no interest in any of these settlement agreements, including the 1995 Settlement Agreement. The Claimants next address the Respondent's argument that, even if the Tribunal were to have jurisdiction over TexPet, it cannot have jurisdiction over Chevron because Chevron was not a party to the settlement agreements. In this connection, the Tribunal notes that the Diccionario de la Real Academia Espaola defines "principal" as follows: (i) 19th Edition (1970): "For. Chevron heeft zich in die arbitrage op het standpunt gesteld dat Ecuador aansprakelijk is voor de schade die zij heeft geleden wegens schending van art. Op zichzelf is juist dat de term, Ook onderdeel 2.2 treft geen doel. (For ease of reference, these terms cited from Article VI of the BIT, with the UNCITRAL Arbitration Rules (1976), are herein collectively called the "Arbitration Agreement"). Onderdeel 1.1 voert aan, zakelijk weergegeven, dat de door het hof aan art. The Respondent notes that the Chevron characterises its indirect ownership of TexPet as an "investment" protected under the BIT. The Tribunal also notes that Article 9.6 provides that the 1995 Settlement Agreement substitutes and voids the 1994 MOU. 23-35) also places special emphasis on the fact that the terms "principales y subsidiarias" are used in Article 5.1 of the 1995 Settlement Agreement. The Claimants submit that the USA-Russia BIT (invoked by the Respondent) actually supports the Claimants' broad interpretation of "investment agreement". In the Tribunal's view, this submission is mistaken as regards the Claimants' claims for non-compensatory relief under the BIT; and it is also mistaken as a matter of legal principle as regards the claim for moral damages (see. Thereafter, the Parties have made many more written submissions in these proceedings related to the Respondent's jurisdictional objections; but it is unnecessary for present purposes to recite them here. (a) Investment shall at all times be accorded fair and equitable treatment, shall enjoy full protection and security and shall in no case be accorded treatment less than that required by international law. Such consent, together with the written consent of the national or company when given under paragraph 3 shall satisfy the requirement for: 5. First, the consent' principle: it is clear that this Tribunal does not have jurisdiction over the Lago Agrio plaintiffs themselves. The investor alleged several breaches of the Canada-Ecuador BIT of 1996, . The Claimants submitted their Notice of Arbitration of 23 September 2009 and their Memorial on the Merits of 6 September 2010. It is, moreover, a question to be answered in the light of the rights of due process possessed by the Parties to this arbitration. In any event, the Respondent asserts that the payments made by the Claimants thereunder have none of the essential characteristics of any investment;27 and, (d) As to the 1998 Final Release, the Respondent submits that it was merely an acknowledgement by the Respondent that TexPet had fully performed its obligations under the 1995 Settlement Agreement. - 20 Mar 2012, Procedural Order No. XII lid 1 BIT. - 19 Jan 2010, Hearing Transcript and Decision In the Tribunal's view, that investment did not terminate in 1992 (upon that Concession Agreement's ending) because there is a close and inextricable link between TexPet's 1973 Concession Agreement and the 1995 Settlement Agreement. But I am conscious of our problems. In relation to the prima facie standard to be applied by the Tribunal, the Respondent submits that: (i) the Claimants must satisfy the Tribunal that jurisdiction is established for each provision of the BIT on which they rely; The Respondent notes the elaboration of the prima facie standard in. Pursuant to the agreement between the Parties concerning the selection of the presiding third arbitrator, the PCA was requested to act as appointing authority and "if the party appointed arbitrators cannot agree on the President by Jan. 22 [2010], then the PCA will appoint the President but only after the PCA provides the parties an opportunity to comment on the candidate under consideration by the PCA." This approach appears to accord with the approach taken by Dr Barros and Dr Coronel. Aldus heeft het hof zijn oordeel onbegrijpelijk gemotiveerd omdat Ecuador zijn standpunt baseert op art. Chevron Corporation is an American multinational energy corporation.The second-largest direct descendant of Standard Oil, and originally known as the Standard Oil Company of California (shortened to Socal or CalSo), it is headquartered in San Ramon, California, and active in more than 180 countries.Chevron is engaged in every aspect of the oil and natural gas industries, including hydrocarbon . 17, 2011) Order of 2nd Circuit Court of Appeals finding that Chevron's promises did not prohibit it from engaging in the BIT arbitration, but explicitly stating that the Aguinda plaintiffs are not bound by the findings of the BIT tribunal and that "[the . Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador (I), PCA Case No. - 12 Mar 2015, Judgment of the US Court of Appeal for the District of Columbia - 6 Sept 2013, Brief of Chevron and Texaco Petroleum Chevron was not earlier involved with TexPet or its past activities in Ecuador. The Respondent contends that the 1995 Settlement Agreement did not establish any investment: it was a closing agreement dealing with alleged torts and environmental pollution claims against TexPet. To the contrary, it is necessary to treat the 1995 Settlement Agreement as a continuation of the earlier concession agreements, so that it forms part of the overall investment invoked by TexPet. - 26 July 2010, Expert Opinion Of Professor David D. Caron As to Article II(7) of the Treaty So, our judicial system should be in charge of knowing about this case in Lago Agrio. Texaco Petroleum Company, beide gevestigd in San Ramon, Californie (Verenigde Staten van Amerika), verweerders in hoger beroep, advocaat: mr. G.J. First, the Respondent rejects the Claimants' argument that the Tribunal has jurisdiction over Chevron under Article VI(1)(a) of the BIT on the basis that the settlement agreements are "related to" the original concession agreements. Chevron's subsidiary, Texaco Petroleum Company, pursued constructive relations with Ecuador from the 1960s to the 1990s when the Government of Ecuador decided at that time that the entire Concession and operation should be awarded to the PetroEcuador company. (i) de maatstaf aan de hand waarvan de bevoegdheid van arbiters dient te worden onderzocht; (ii) de maatstaven aan de hand waarvan het BIT dient te worden uitgelegd; (iii) de mate waarin de oordelen van het hof op juistheid en begrijpelijkheid kunnen worden onderzocht (art. In this regard, the Claimants assert that "the Government's collusion in the Lago Agrio litigation and the scope of the diffuse rights claims released by the Settlement and Release Agreements are not [jurisdictional issues] and their resolution must await the merits stage". Adopting this broad approach, the Claimants contend that their investments in Ecuador fall within at least three of the separate examples of "investments" listed in Article I(1) of the BIT, namely: (i) "investment contracts" under Article I(1)(a); (ii) "a claim to money or a claim to performance having economic value" under Article I(1)(a)(iii); and (iii) "any right conferred by law or contract" under Article I(1)(a)(v). - 15 Apr 2019, (E) Procedural Meetings and the Jurisdiction Hearing, (F) The Claimants' Prayer for Relief (Merits), (G) The Respondent's Jurisdictional Objections, PART III : THE PARTIES' JURISDICTIONAL DISPUTES, (C) The Respondent's Objections to Jurisdiction, PART IV: THE TRIBUNAL'S ANALYSIS AND DECISIONS, Treaty Between the United States of America and the Republic of Ecuador concerning the Encouragement and Reciprocal Protection of Investment, 27 August 1993 (entered into force 11 May 1997), Treaty Between the United States of America and the Republic of Ecuador concerning the Encouragement and Reciprocal Protection of Investment, 27 August 1993, Article VI of the Treaty between the United States of America and the Republic of Ecuador concerning the Encouragement and Reciprocal Protection of Investment of 27 August 1993, Article II of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Article 3(2) of the UNCITRAL Arbitration Rules, Article 16 of the UNCITRAL Arbitration Rules, Article 17 of the UNCITRAL Arbitration Rules, The Treaty between the United States of America and the Republic of Ecuador concerning the Encouragement and Reciprocal Protection of Investment, Article 40 of the UNCITRAL Arbitration Rules, Article 21 of the UNCITRAL Arbitration Rules, Article 21(4) of the UNCITRAL Arbitration Rules, Articles 15 and 21 of the UNCITRAL Arbitration Rules, Article 31(2) of the ILC Articles on State Responsibility, Agreement between the Government of Ecuador, Ecuadorian Gulf Oil Company and TexPet, 6 August 1973 (Exhibit C-7), Memorandum of Understanding among the Government of Ecuador, PetroEcuador and TexPet, 14 December 1994 (Exhibit C-17), Contract for Implementing of Environmental Remediation Work and Release from Obligations, Liability, and Claims among the Government of Ecuador, PetroEcuador and TexPet, 4 May 1995 (Exhibit C-23), Scope of Work agreement among the Government of Ecuador, PetroEcuador, and TexPet, 23 March 1995 (Exhibit C-23, Annex A), Texaco Petroleum Company Remedial Action Plan for the Former PetroEcuador-TexPet Consortium, 8 September 1995, Release with Municipality of Joya de los Sachas, 2 May 1996 (Exhibit C-27); Release with Municipality of Shushufindi, 2 May 1996 (Exhibit C-28); Release with Municipality of the Canton of Francisco de Orellana (Coca), 2 May 1996 (Exhibit C-29); Release with Municipality of Lago Agrio, 2 May 1996 (Exhibit C-30); Contract of Settlement and Release between Texaco Petroleum Company and the Provincial Prefect's Office of Sucumbos, 2 May 1996 (Exhibit C-31); Instrument of Settlement and Release from Obligations, Responsibilities, and Claims between the Municipalities Consortium of Napo and Texaco Petroleum Company, 26 April 1996 (Exhibit C-32), Law of Environmental Management (also known as the Environmental Management Act), July 1999, Maria Aguinda et al. Uit de stellingen van partijen volgt dat (in hun beider perceptie) onder 'investment in het normale spraakgebruik wordt verstaan: de operationele fase. Meijer, kantoorhoudend in Amsterdam. The HTML version of this document remains fully available on our website. Article VI(2) : "In the event of an investment dispute, the parties to the dispute should initially seek a resolution through consultation and negotiation. Each Party undertakes to carry out without delay the provisions of any such award and to provide in its territory for its enforcement.". Het door partijen aangedragen feit dat wereldwijd enkele duizenden, soortgelijke bilaterale investeringsverdragen zijn afgesloten, vormt daarvan een bevestiging. Jus Mundi increases your chances of winning your clients' cases. - 5 Nov 2010, Procedural Order and Further Order on Interim Measures VI BIT) de inhoud van de art. Chevron eagerly awaits to what the Republic of Ecuador's reaction to the new evidence may be and whether the Republic believes there is anything that it and Chevron might constructively do together to address that situation.". - 26 Sept 2014, Decision on the Proposal to Disqualify All Members of the Arbitral Tribunal In relation to the jurisdictional objection based on the lack of any provision in the 1995 Settlement Agreement under which the Respondent undertook to indemnify the Claimants from third party liability, the Respondent acknowledges that this objection might require the Tribunal to examine facts which overlap with the merits of the Claimants' claims; but the Respondent contends that the objection is so obvious that it would be a waste of the Parties' resources to reserve this jurisdictional decision to a merits phase in these arbitration proceedings. Accordingly, standing alone, the Tribunal rejects the 1995 Settlement Agreement as founding its jurisdiction; and it is only when that 1995 Settlement is considered along with the 1973 Concession Agreement that it forms part of an "investment agreement" under Article VI(1)(a) of the BIT. I lid 1 (a) BIT en (dus) van art. Given that this arbitration will now proceed further in regard to the respective merits of the Parties' dispute and that the Respondent has yet had no opportunity to plead its defence on the merits, it is appropriate for the Tribunal here to add very little. - 2 Oct 2012, Track 1 Merits Hearing Both terms must be less than X words apart. This Jurisdiction Hearing was attended by the Parties' legal representatives, as follows: (i) for the Claimants, Mr. Hewitt Pate (Chevron), Mr. David Moyer (Chevron), Mr. Ricardo Reis Veiga (Chevron), Professor James Crawford SC (Matrix Chambers), Mr. Thomas Grant (LCIL, Cambridge), Mr. Doak Bishop (King & Spalding), Mr. Edward Kehoe (King & Spalding), Mr. Thomas Childs (King & Spalding), Ms. Kristi Jacques (King & Spalding), Mr. David Weiss (King & Spalding), Mr. Timothy Sullivan (King & Spalding), Ms. Zhennia Silverman (King & Spalding) and Ms. Carol Tamez (King & Spalding); and (ii) for the Respondent, Dr. Diego Garca Carrin (the Attorney-General for Ecuador), Dr. Alvaro Galindo Cardona (Director of International Disputes, Attorney General's Office), Dr. Juan Francisco Martnez (Counsel, Attorney General's Office), Professor Zachary Douglas (Matrix Chambers), Mr. Luis Gonzlez (Matrix Chambers), Mr. Eric Bloom (Winston & Strawn), Mr. Ricardo Ugarte (Winston & Strawn), Mr. Toms Leonard (Winston & Strawn), Ms. Rachel Jones (Winston & Strawn), Ms. Elizabeth Rudd (Winston & Strawn) and Mr. Bruno Leurent (Winston & Strawn). Given these several factors, the Claimants contend that both the contractual and noncontractual claims which TexPet and the Respondent settled under the 1995 Settlement Agreement "related to" the original concession agreements; and the Parties' dispute in this arbitration relates to both as an investment. Second, this dispute arose shortly after the Lago Agrio Litigation was commenced in 2003, when Ecuador refused to honor its obligations under the 1995 and 1998 investment agreements. Only the Government can litigate. This difficulty was best expressed by Sir Frank Berman in his dissenting opinion in. Chevron is seeking to hold the Republic of Ecuador accountable for their role in denying Chevron justice through an international arbitration tribunal in The Hague, which is convened under the authority of the U.S.-Ecuador Bilateral Investment Treaty and administered by the Permanent Court of Arbitration at The Hague. Now we concentrate in the present arbitration. The Respondent denies that this factor has any relevance to the existence of a link between that investment and the settlement agreements. - 4 June 2013, First Partial Award on Track I Republic of Ecuador, et al. The BIT imposes no temporal limit on an investment: Article II(3)(b) confers express protection on the "disposal" of an investment; and Article II(7) likewise in regard to "effective means of asserting claims and enforcing rights with respect to investment, investment agreements, and investment auhorizations". Find out all Jus Mundi tutorial videos in : https://tutorial.jusmundi.com, In less than 3 minutes you'll find everything you need to know about Jus Mundi and how to take full advantage of our searchengine.. Het hof is met Chevron en het Scheidsgerecht van oordeel dat het woord 'investment' in de aanduiding 'associated with an investment', evenals het tweede woord 'investment' in de frase 'investment means every kind of investment' in de aanhef van art. The complaint named Texaco as the defendant; but it impleaded Chevron as a defendant on the basis that, upon the "merger" in 2001, Chevron was "substituted" for Texaco's "rights and obligations" and was therefore liable to the Lago Agrio plaintiffs (paragraph I.11). Dr Barros and Dr Coronel support the Claimants' submissions, to the effect that "principales" means parent company (See Dr Barros' second report; and Dr Coronel's second report). Het hof heeft in rov. In the Claimants' submission, the Respondent's approach would effectively require, wrongly, the Tribunal to determine at this jurisdictional stage the merits of the Claimants' claims for breach of the substantive provisions of the BIT. - 28 Jan 2011, Procedural Order No. El que da poder a otro para que lo represente, poderdante"; and (ii) 22nd (last) Edition (2001): "Der. (iii) TexPet heeft in de periode van december 1991 tot december 1993 zeven procedures bij Ecuadoriaanse gerechten aanhangig gemaakt in verband met gestelde tekortkomingen van Ecuador onder de concessieovereenkomst. De klacht dat het hof de circulaire definitie van de term, Het onderdeel mist feitelijke grondslag voor zover het betoogt dat het hof de term, Voor zover het onderdeel ertoe strekt dat het hof de term. The same way we do not deny that the Governments of the time including the present administration made public the declarations in support of the people of Lago Agrio, but I conclude in two things. al., Nos. In any such Foreign Lawsuit, Texaco Inc. will waive and/or not assert an objection based on lack of in personam jurisdiction to the civil jurisdiction of a court of competent jurisdiction in Ecuador. 17, heeft overwogen, is niet van enige aanwijzing gebleken dat het woord 'investments' in art. The Claimants therefore submit that, consistent with the object and purpose of Article VI(1)(a), this tribunal should have jurisdiction over a third party's contractual claims. II lid 7 van het verdrag is ontstaan na de inwerkingtreding ervan en dat arbiters slechts het handelen van Ecuador van nadien hebben beoordeeld. Chevron. Become a Contributor, submit your candidacy to author this Wiki Note. Now, Chevron has previously made detailed arguments about the interference by the Government of Ecuador in the Lago litigation, and it stands by those, but again, my comments on the Crude video evidence this afternoon are about the private Plaintiffs' lawyers and their profit motivated litigation investors. Without the former, the latter would not have come into existence. Onderdeel 1.2, dat is gericht tegen hetgeen het hof aan het slot van rov. (i) Chevron Corporation is indirect aandeelhoudster van TexPet. Chevron argues that by colluding in the Lago Agrio farce, Ecuador violated its treaty obligation to let foreign investors enforce their rights effectively, and breached international law's. ", On the other hand, the Tribunal notes that examples in which such term has been used in the context of general company or corporate law in Ecuador are very exceptional, as shown in the report of the Respondent's legal expert, Dr. Roberto Salgado Valdez (the "Salgado report"). In the Tribunal's view, as TexPet's parent company, Chevron is a covered investor under Article I(1)(a) of the BIT because it indirectly owns or controls an "investment" in Ecuador. XII BIT gegeven uitleg onbegrijpelijk is omdat in lid 1 van dit artikel wordt bepaald dat het BIT alleen van toepassing is op investeringen die bestonden ten tijde van de inwerkingtreding van dit verdrag, of die daarna zijn gedaan of verkregen. 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