Magnifier Search

Chevron v. Ecuador

Type of decisionInterim Award
Date of decision1 December 2008
Tribunal
Karl-Heinz Böckstiegel (President)
Albert Jan van den Berg
Charles N. Brower
Legal instrumentBIT between Ecuador and USA (1997)
Related decision(s)
Further information

Statements from this decision

You are currently viewing the statements in their context. To view them in a list, click here.
International Investment Treaties (IITs)
International Law Rules Applicable to IITs
Relationship of IITs to Other Sources of International Law
System of Precedents
Other tribunals' decisions can constitute a "supplementary means of interpretation" within the meaning of Article 32 VCLT
Relationship of an IIT to Other Treaties
General Remarks
In addition to the IIT, the substantive law applicable to the dispute may include the VCLT, the ILC Articles on State Responsibility and customary international law
Relationship of an IIT to Customary International Law
A wide dispute settlement clause confers jurisdiction over customary international law claims on a tribunal
In addition to the IIT, the substantive law applicable to the dispute may include the VCLT, the ILC Articles on State Responsibility and customary international law
Relationship of an IIT to General Principles of International Law
Further Problems
Abuse of process, estoppel and waiver have to be qualified as defences; there is no agreement among authorities whether these defences should be considered issues of jurisdiction, admissibility, or the merits
The defences of abuse of rights, estoppel and waiver are subject to a high threshold
Law of Treaties
Rules of Interpretation
Interpretation Rules of the Vienna Convention on the Law of Treaties (VCLT) as Reflecting Customary International Law
Articles 31 to 33 of VCLT are declaratory of existing customary international law
Further Problems
Other tribunals' decisions can constitute a "supplementary means of interpretation" within the meaning of Article 32 VCLT
Law of State Responsibility
Attribution of Acts
Attribution of Acts by the Judiciary
Exhaustion of local remedies (i.e. judicial finality) is a required substantive element of a claim for denial of justice; it is different from the traditional rule of exhaustion of local remedies, which is a procedural prerequisite
Protection of Investors under IITs
Applicability of IITs
General Remarks
A tribunal should determine separately whether the requirements ratione materiae and ratione termporis are met by an alleged investment
Ratione Materiae – Definition of Investment
The Concept of "Investment"
General Remarks
In an IIT defining "rights pursuant to law or contract" as protected investments, the term "rights" is not necessarily limited to licenses, permits, or analogous rights
Claims to Money
Claims for money can constitute an investment if they arise directly out of an investment; once an investment is established, it is protected until it has been wound up
If an IIT requires claims to money to be associated with an investment, this cannot be understood as a recursive definition referring to an additional investment
Ratione Temporis – Application in Time
An IIT cannot be applied retroactively unless such an intention of the parties can be established
Claims for money can constitute an investment if they arise directly out of an investment; once an investment is established, it is protected until it has been wound up
A tribunal has to distinguish between the applicability ratione temporis of substantive obligations in an IIT on the one hand and jurisdiction ratione temporis on the other hand
Domestic courts' actions and inactions can constitute a continuing and composite act
Expropriation and Standards of Protection
Fair and Equitable Treatment
Case Groups
Denial of Justice
Exhaustion of local remedies (i.e. judicial finality) is a required substantive element of a claim for denial of justice; it is different from the traditional rule of exhaustion of local remedies, which is a procedural prerequisite
Dispute Settlement Clauses
Exhaustion of Local Remedies Clauses
Exhaustion of local remedies (i.e. judicial finality) is a required substantive element of a claim for denial of justice; it is different from the traditional rule of exhaustion of local remedies, which is a procedural prerequisite
Wide Dispute Settlement Clauses
A wide dispute settlement clause confers jurisdiction over customary international law claims on a tribunal
Applicable Law / Choice of Law Clauses
The law of the place of arbitration (lex arbitri) is part of the applicable procedural law
In addition to the IIT, the substantive law applicable to the dispute may include the VCLT, the ILC Articles on State Responsibility and customary international law
Investment Treaty Arbitration
Distinction Between Jurisdiction and Admissibility
Abuse of process, estoppel and waiver have to be qualified as defences; there is no agreement among authorities whether these defences should be considered issues of jurisdiction, admissibility, or the merits
Jurisdiction
Interpreting Provisions Concerning Jurisdiction
A tribunal has to distinguish between the applicability ratione temporis of substantive obligations in an IIT on the one hand and jurisdiction ratione temporis on the other hand
If the temporal restrictions of an IIT refer to the investment's existence only, the jurisdiction ratione temporis is not restricted
Admissibility
Prima Facie Case
Applying the prima facie test, a tribunal should presume that the claimant's factual allegations are true; the respondent may, however, submit conclusive evidence contradicting the claimant's allegations
At the jurisdictional stage, a tribunal must establish whether the facts alleged by the claimant, if established, are capable of coming within those provisions of the IIT which the claimant has invoked
Procedural Questions
Burden of Proof
The holder of a right bears the burden of proof for all elements required for a claim; a respondent bears the burden of proof for exceptions to that claim, such as defences
Vienna Convention on the Law of Treaties
Article 28 - Non-retroactivity of treaties
An IIT cannot be applied retroactively unless such an intention of the parties can be established
Claims for money can constitute an investment if they arise directly out of an investment; once an investment is established, it is protected until it has been wound up
A tribunal has to distinguish between the applicability ratione temporis of substantive obligations in an IIT on the one hand and jurisdiction ratione temporis on the other hand
Domestic courts' actions and inactions can constitute a continuing and composite act
Article 31 - General rule of interpretation
Further Problems
Articles 31 et seq. Reflect Customary International Law
Articles 31 to 33 of VCLT are declaratory of existing customary international law
Article 32 - Supplementary means of interpretation
Other tribunals' decisions can constitute a "supplementary means of interpretation" within the meaning of Article 32 VCLT
UNCITRAL Arbitration Rules 1976
Article 24
The holder of a right bears the burden of proof for all elements required for a claim; a respondent bears the burden of proof for exceptions to that claim, such as defences

Feedback

Above you will find 19 statement(s) from this decision. Please note that when viewing the statements in their context, the same statement may appear multiple times if it is relevant for more than one topic. Did we miss something? Feel free to send us your suggestions!