TABLE OF ABBREVIATIONS AND DEFINITIONS | |
2nd SMCC | Respondent [Ecuador]'s Second Supplemental Memorial on Counterclaims of 24 April 2012 (corrected as of 7 May 2012) |
Andrade ER | Expert Report of Fabián Andrade Narváez of 20 February 2013 |
API | American Petroleum Institute |
Arbitration Rules | ICSID Rules of Procedure for Arbitration Proceedings |
Award | Decision on Reconsideration and Award |
Bedón ER1 | 1st Expert Report of Dr. René Bedón of 27 September 2012 |
Bedón ER2 | 2nd Expert Report of Dr. René Bedón of 2 July 2013 |
BIT | Bilateral Investment Treaty; specifically "Treaty between the United States and Ecuador concerning the Encouragement and Reciprocal Protection of Investments" of 11 May 1997 |
BP | British Petroleum Development Limited |
Burlington | Burlington Resources Inc. |
CEPE | Corporación Estatal Petrolera Ecuatoriana |
Civil Code or CC | Ecuadorian Civil Code |
CMCC | Claimant [Burlington]'s Counter-Memorial on Counterclaims of 29 September 2012 |
Consortium | Consortium formed by Perenco Ecuador Limited and Burlington Resources Oriente Limited |
CPF | Central Production Facility |
C-PHB | Claimant [Burlington]'s Post-Hearing Brief of 3 October 2014 |
C-PSVB | Claimant [Burlington]'s Post-Site Visit Brief of 15 July 2015 |
CPUF | Coca-Payamino Unified Field |
Crespo ER | Expert Report of Ricardo Crespo Plaza of 29 September 2011 |
Decision on Liability Decision on Jurisdiction | Decision on Liability of 14 December 2012 Decision on Jurisdiction of 2 June 2010 |
EIS | Environmantal Impact Study |
EML | Environmental Management Law (Ley de Gestión Ambiental) |
ER | Expert Report |
Exh. | Exhibit |
Exh. C- | Claimant [Burlington]'s Exhibits |
Exh. CL- | Claimant [Burlington]'s Legal Exhibits |
Exh. E- | Respondent [Ecuador]'s Exhibits |
Exh. EL- | Respondent [Ecuador]'s Legal Exhibits |
GSI | GSI Environmental Inc. |
GSI ER1 | 1st Expert Report of GSI of 20 September 2012 |
GSI ER2 | 2nd Expert Report of GSI of 2 July 2013 |
HL | Hydrocarbons Law (Ley de Hidrocarburos) |
ICSID | International Centre for Settlement of Investment Disputes |
ICSID Convention | Convention on the Settlement of Investment Disputes between States and Nationals of other States |
IDW | Inverse Distance Weighting |
IEMS | Integrated Environmental Management Services, S.A. de C.V. |
IEMS ER1 | 1st Expert Report of IEMS of 11 January 2011 |
IEMS ER2 | 2nd Expert Report of IEMS of 29 September 2011 |
IEMS ER3 | 3rd Expert Report of IEMS of 23 April 2012 |
IEMS ER4 | 4th Expert Report of IEMS of 18 February 2013 |
MAB | UNESCO Man and the Biosphere Program |
NTU | Nephelometric Turbidity Units |
P&T | Pump-and-Treat |
Perenco | Perenco Ecuador Limited |
PHB | Post-Hearing Brief |
PO [No.] | Procedural Order [number] |
PRB | Permeable Reactive Barriers |
Protocol | Joint Site Visit Protocol signed by both Parties of 20 January 2015 |
PSC | Production Sharing Contract |
PSE | Prediction Standard Error |
RAOHE | Environmental Regulation for Hydrocarbon Operations in Ecuador (Reglamento Ambiental para las Operaciones Hidrocarburíferas en el Ecuador) |
REC | Recognized Environmental Condition |
Rejoinder | Claimant [Burlington]'s Rejoinder on Counterclaims of 8 July 2013 |
Reply | Respondent [Ecuador]'s Reply on Counterclaims of 18 March 2013 |
ROH | Regulation of Hydrocarbon Operations (Reglamento de Operaciones Hidrocarburíferas) |
R-PHB | Respondent [Ecuador]'s Post-Hearing Brief of 3 October 2014 |
RPS | RPS Group Plc |
RPS ER2 | 2nd Expert Report of RPS of February 2013 |
R-PSVB | Respondent [Ecuador]'s Post-Site Visit Brief of 15 July 2015 |
Saltos WS1 | 1st Witness Statement of Wilfrido Saltos of 28 September 2012 |
Saltos WS2 | 2nd Witness Statement of Wilfrido Saltos undated |
Site Visit | The inspection of a number of sites within Blocks 7 and 21 |
SMCC | Respondent [Ecuador]'s Supplemental Memorial on Counterclaims of 30 September 2011 |
SNAP | National System of Protected Areas (Sistema nacional de áreas protegidas) |
SPLP | Synthetic Precipitation Leaching Procedure |
TCLP | Toxicity Characteristic Leaching Procedure |
TPH | Total Petroleum Hydrocarbons |
Tr. [(Day)] [(Language)] [page:line] | Transcript of the Hearing on Counterclaims of 1-7 June 2014, English or Spanish version, as indicated |
Tr. Site Visit [(Day)] (ENG) [page:line] | Transcript of the Site Visit of 29 March to 1 April 2015, English version |
TULAS | Unified Text of Secondary Environmental Legislation (Texto Unificado de Legislación Ambiental Secundaria) |
UNESCO | United Nations Educational, Scientific and Cultural Organization |
UPL | Upper Prediction Limit |
USD | United States Dollar |
USEPA | United States Environmental Protection Agency |
VOC | Volatile Organic Compounds |
WS | Witness Statement |
• The Tribunal
Members of the Tribunal
Professor Gabrielle Kaufmann-Kohler, President
Professor Brigitte Stern, Arbitrator Mr. Stephen L. Drymer, Arbitrator Secretary of the Tribunal Mr. Marco Tulio Montañés-Rumayor Assistant to the Tribunal Mr. Magnus Jesko Langer
• Ecuador's representatives Counsel
Mr. Pierre Mayer Dechert (Paris) LLP
Mr. Eduardo Silva Romero Dechert (Paris) LLP
Mr. Philip Dunham Dechert (Paris) LLP
Mr. José Manuel García Represa Dechert (Paris) LLP
Mr. Timothy Lindsay Dechert LLP
Ms. Meredith Bloch Dechert (Paris) LLP
Ms. Audrey Caminades Dechert (Paris) LLP
Ms. Gabriela González Giráldez Dechert (Paris) LLP
Support
Ms. Djamila Rabhi Dechert (Paris) LLP
Mr. Jeremy Eichler Dechert (Paris) LLP
Mr. Pedro Arcoverde Dechert (Paris) LLP
Mr. Oswaldo Santos Davalos Dechert (Paris) LLP
Ms. Katerine Marami Dechert (Paris) LLP
Parties
Dr. Diego García Carrión Procuraduría General del Estado
Dr. Blanca Gómez de la Torre Procuraduría General del Estado
Dr. Diana Moya Procuraduría General del Estado
• Burlington's representatives
Counsel
Mr. Nigel Blackaby Freshfields Bruckhaus Deringer
Ms. Noiana Marigo Freshfields Bruckhaus Deringer
Ms. Lauren Friedman Freshfields Bruckhaus Deringer
Ms. Giulia Previti Freshfields Bruckhaus Deringer
Mr. Leon Skornicki Freshfields Bruckhaus Deringer
Ms. Sarah Gans Freshfields Bruckhaus Deringer
Mr. Anthony Ogunseye Freshfields Bruckhaus Deringer
Ms. Cassia Cheung Freshfields Bruckhaus Deringer
Ms. Tracie Renfroe King & Spalding
Mr. Wade Coriell King & Spalding
Mr. Esteban Leccesse King & Spalding
Ms. Jamie Miller King & Spalding
Ms. Anisha Sud King & Spalding
Ms. Sara McBrearty King & Spalding
Ms. Veronica Garcia King & Spalding
Ms. Pui Yee (Lisa) Wong King & Spalding
Mr. Thomas Norgaard Debevoise & Plimpton
Ms. Floriane Lavaud Debevoise & Plimpton
Paz Horowitz Robalino Garces
Mr. Javier Robalino
Abogados
Mr. James Haase FTI Consulting
Parties
Ms. Janet Kelly ConocoPhillips Company
Mr. Clyde Lea ConocoPhillips Company
Ms. Laura Robertson ConocoPhillips Company
Ms. Suzana Blades ConocoPhillips Company
Mr. Fernando Avila ConocoPhillips Company
Ms. Ann Morgan ConocoPhillips Company
Mr. Jared L. Richards ConocoPhillips Company
Mr. Rick Greiner ConocoPhillips Company
• Ecuador's witnesses and experts
Witnesses
Mr. Saulo Bernabe Carrasco Paredes Agencia de Regulación y Control Hidrocarburífero del Ecuador (ARCH)
Mr. Pablo Alberto Luna Hermosa Petroamazonas
Mr. Diego Fernando Montenegro Munoz Petroamazonas
Mr. Manuel Solís Petroamazonas
Mr. Marco Puente Petroamazonas
Experts
Mr. Ricardo Crespo Universidad San Francisco de Quito
Mr. Fabian Alexander Andrade Narvaez Universidad San Francisco de Quito
Mr. José Rubén Villanueva Peon IEMS (Integrated Environmental Management Services, S.A. de C.V.)
Mr. José Francisco Alfaro Rodriquez IEMS (Integrated Environmental Management Services, S.A. de C.V.)
Mr. Jonathan Green IEMS (Integrated Environmental Management Services, S.A. de C.V.)
Mr. Henry Chaves Kiel IEMS (Integrated Environmental Management Services, S.A. de C.V.)
Ms. Kathleen Kerr RPS
Ms. Martha Pertusa RPS
Mr. Scott Crouch RPS
• Burlington's witnesses and experts
Witnesses
Mr. Alex Martinez Burlington Resources Peru Ltd
Mr. Wilfrido Saltos Perenco Ecuador Limited
Mr. Eric d'Argentré Perenco Ecuador Limited
Experts
Mr. John Connor GSI Environmental Inc.
Mr. Gino Bianchi GSI Environmental Inc.
Mr. Danny Bailey GSI Environmental Inc.
Ms. Claudia Sanchez de Lozada GSI Environmental Inc.
Mr. Geoffrey R. Egan Intertek
Mr. Dr. René Bedón Albán Bedón Macías & Associates
Mr. Shahrokh Rouhani NewFields
• For the Tribunal
Professor Gabrielle Kaufmann-Kohler, President of the Tribunal
Professor Brigitte Stern, Arbitrator
Mr. Stephen Drymer, Arbitrator
Secretary of the Tribunal
Mr. Marco Tullio Montañés-Rumayor
Assistant to the Tribunal
Mr. Magnus Jesko Langer
• Ecuador's representatives
Dr. Diego García Carrión, Procuraduría General del Estado Dr. Blanca Gómez de la Torre, Procuraduría General del Estado Dr. Diana Moya, Procuraduría General del Estado
Mr. Eduardo Silva Romero, Dechert (Paris) LLP Mr. José Manuel García Represa, Dechert (Paris) LLP Ms. Audrey Caminades, Dechert (Paris) LLP
Ms. Gabriela González Giráldez, Dechert (Paris) LLP
• Burlington's representatives
Ms. Suzana Blades, Burlington/ConocoPhillips Mr. Rick Greiner, Burlington/ConocoPhillips Ms. Laura Robertson, Burlington/ConocoPhillips Mr. John Urby, Burlington/ConocoPhillips14 Mr. Nigel Blackaby, Freshfields Bruckhaus Deringer Ms. Tracie Renfroe, King & Spalding LLP Ms. Jamie Miller, King & Spalding LLP Mr. Thomas Norgaard, Debevoise & Plimpton LLP Mr. Javier Robalino, Paz Horowitz
• Ecuador's witnesses and experts Ms. Martha Pertusa, RPS
Mr. Scott Crouch, Di Sorbo Consulting
Mr. Francisco Alfaro, IEMS
Mr. Henry Chaves, IEMS
Mr. Rodrigo Anota, IEMS
Mr. Marcel López, IEMS
Mr. Marco Puente, Petroamazonas
Mr. Pablo Luna, Petroamazonas
• Burlington's witnesses and experts Mr. John Connor, GSI Environmental Mr. Gino Bianchi, GSI Environmental
Mr. Danielle Kingham, GSI Environmental Mr. Wilfrido Saltos, Perenco
• Technical team
Mr. Daniel Giglio, Interpreter Mr. Charles Roberts, Interpreter Mr. Favio Claure, AV Contractor
Mr. Christian Richard Winter, AV Contractor
On day 1 (29 March 2015): Yuralpa Pad A;
On day 2 (30 March 2015): Payamino 2/8, Payamino 1/CPF, Coca 8 and Coca CPF;
On day 3 (31 March 2015): Jaguar 1, Jaguar 7/8 and Mono CPF;
On day 4 (1 April 2015): Gacela 2, Gacela CPF, Gacela 1/8 and Coca 15.15
Topographic Map of Blocks 7 and 2119
i. Under Ecuadorian law, Burlington is strictly liable for any environmental damage found in Blocks 7 and 21. There is environmental damage in Blocks 7 and 21 in the form of significant soil and groundwater pollution. IEMS, Ecuador's environmental experts, discovered that close to 2.5 million cubic meters of soil and all groundwater locations tested (18) are polluted with hydrocarbons, heavy metals or both. Burlington is liable for this damage.
ii. Under the PSCs and Ecuadorian law, Burlington was bound to maintain the infrastructure, and return it to Ecuador, in good working condition in accordance with industry standards. Burlington breached this obligation and is thus liable.
iii. As a result of these breaches, Burlington must pay damages to Ecuador in the total amount of USD 2,797,007,091.42 composed of USD 2,507,107,626 for soil remediation and USD 265,601,700 for groundwater remediation, USD 3,380,000 to complete groundwater studies, USD 3,500,000 for the abandonment of wells in Block 7, and USD 17,417,765.42 for infrastructure damage,58 plus interest and costs.
1. Declaring
(i) That Burlington is liable towards Ecuador for the costs of restoring the environment in areas within Blocks 7 and 21 of the Ecuadorian Amazon Region;
(ii) That Burlington is liable towards Ecuador for the costs required to remedy the poor state of the infrastructure of Blocks 7 and 21 left behind by Burlington;
2. Ordering
(i) Burlington to pay damages to allow the State to proceed with full restoration of the environment in areas within Blocks 7 and 21 of the Ecuadorian Amazon Region quantified at USD 2,507,107,626 (or, alternatively, USD 790,465,298) for soil clean up costs and USD 265,601,700 for groundwater remediation costs;
(ii) Burlington to pay the costs for Ecuador to complete groundwater studies in 52 additional locations quantified at USD 3,380,000;
(iii) Burlington to pay the costs of abandonment of wells in Block 7, quantified at USD 3,500,000;
(iv) Burlington to pay damages for its failure to return the Blocks' infrastructure in good condition to Ecuador in an amount quantified at USD 17,417,765.42 with interest at an adequate commercial interest rate from the date of disbursement thereof until the date of the Award;
(v) Burlington to pay all the costs and expenses incurred in this arbitration in connection with Ecuador's counterclaims, including but not limited to Ecuador's legal and expert fees and costs and ICSID's other costs; and
(vi) Claimant to pay interest at an adequate commercial interest rate on all amounts stated in the preceding paragraphs from the date of the Award until the date of full payment; and
3. Awarding
(i) Such other relief as the Tribunal considers appropriate.59
i. Ecuador's multi-billion environmental claim is no more than tactical retaliation fabricated after Burlington lodged its ICSID claim, with the objective of offsetting the significant damages that are owed to Burlington by Ecuador for its unlawful seizure of the Blocks.61 Similarly, the infrastructure claim is opportunistic and lacks merit.62 It was fabricated to provide additional support for Ecuador's environmental claim. Not satisfied in having cashed in over USD 4 billion in "unanticipated" oil revenues from the seizure of the Blocks, Ecuador now seeks USD 2.6 billion for an alleged "tremendous environmental harm" caused by a "series of small incidents", and an additional USD 17 million to upgrade infrastructure it took from the Consortium.63
ii. Ecuador in fact seeks to impose on Burlington responsibility for environmental conditions preexisting the Consortium's operation of Blocks 7 and 21, and even preexisting any human activity on the Blocks. Moreover, whatever environmental damage may be present in the Blocks today is the result of, or has been severely exacerbated by, Ecuador's own operation and indeed expansion of oilfield operations.
iii. Ecuador's claims must be rejected in toto, since Ecuador relies on invented legal tests that have never been applied in practice and are scientifically unsupported. Alternatively, the Tribunal should evaluate the reasonable costs of remediating "the pockets of exceedances at the two sites that are possibly attributable to the Consortium, as would have occurred in a normal orderly handover, absent Ecuador's unlawful actions".64 These costs amount to USD 1.09 million and include the remediation of Yuralpa Pad A and Jaguar 1 Area 3T.
(a) DISMISS with prejudice Ecuador's environmental counterclaims in their entirety;
(b) In the alternative, determine that the reasonable cost of remediating the exceedances possibly attributable to the Consortium, including the costs of closing four pits and abandoning seven wells is no more than USD 1.09 million;
(c) DECLARE that, beyond the exceedances assessed by the Tribunal, Burlington has no further liability for environmental harm in Blocks 7 and 21;
(d) DISMISS with prejudice Ecuador's infrastructure counterclaims in their entirety;
(e) ORDER Ecuador to pay all of the costs and expenses of this arbitration, including Burlington's legal and expert fees, the fees and expenses of any experts appointed by the Tribunal, and ICSID's other costs;
(f) ORDER Ecuador to pay compound interest on the sum awarded in (e) above, until the date of effective and complete payment, at a rate of 4 percent compounded annually, or at such a rate and for such a period of compounding as the Tribunal considers just and appropriate in the circumstances; and
(g) AWARD such further and other relief as the Tribunal considers appropriate.65
"It is important that we highlight that the constitutional principal [sic] that states that in doubt, the rule that most favors environmental protection shall apply, as it is a standard that generates ample protection, the matters contemplated by the current Constitution will apply, as it is a standard that creates a broad protection to the environment, above the matters outlined by the Environmental Management Law or the 1998 Constitution. The provisions of the current Constitution as it relates to environmental issues and its protection is also preferably applied, since, in procedural matters, the rules in force at the time of filing the action apply, and not those that were in force when the legal situation was created".105
"[W]hat the Constitution did in relation to these two components – harm on the one hand and quantum on the other, the quantum of environmental harm – what it did it was transfer the burden of proof to the person carrying out the activity or the defendant. So, the only modification of the 2008 Constitution in connection with this matter is that what must be shown, the evidence that must be given by the Claimant, is the negative impact, obviously the impact, negative impact upon nature. This is as far as he has to go".119
ART. 42.– Environmental audit.– The Undersecretariat of Environmental Protection, through the National Environmental Protection Directorate, shall audit, at least every two years, or whenever the Undersecretariat of Environmental Protection so orders upon detecting non-compliance with the Environmental Management Plan, the environmental aspects of the various hydrocarbons activities conducted by the ones subjected to control.
The Undersecretariat of Environmental Protection, through the National Environmental Protection Directorate (DINAPA), shall determine the type and scope of the Environmental Audit for the operations of those subjected to control based on compliance with the Environmental Management Plan.
At least every two years, those subjected to control shall conduct an Environmental Audit of their activities, following approval of the corresponding Terms of Reference by the Undersecretariat of Environmental Protection, and they shall submit the respective audit report to the Undersecretariat of Environmental Protection.
Additionally, the parties, upon the termination of hydrocarbons exploration and exploitation, or in the event of a change of operator, shall conduct the audit referenced in Art. 11 of the Regulation to Law 44, amending the Hydrocarbons Law.
To the effect of the aforementioned audits, the ones subjected to control shall select an environmental auditor qualified by the Undersecretariat of Environmental Protection to carry out the monitoring and verification of compliance with the Environmental Management Plan, in accordance with the Terms of Reference previously approved by the Undersecretariat of Environmental Protection, in which the documentary framework is determined against which the audit shall be conducted (Translation by the Tribunal).
RAOHE Table 6, Annex 2 | |||||
Parameter | Expressed in | Unit | Agricultural Use | Industrial Use | Sensitive Ecosystems |
Total hydrocarbons | TPH | mg/kg | <2500 | <4000 | <1000 |
Polycyclic Aromatic Hydrocarbons (PAHs) | C | mg/kg | <2 | <5 | <1 |
Cadmium | Cd | mg/kg | <2 | <10 | <1 |
Nickel | Ni | mg/kg | <50 | <100 | <40 |
Lead | Pb | mg/kg | <100 | <500 | <80 |
RAOHE Table 7a, Annex 2 | |||
a) WITHOUT impermeabilizaron at the base | |||
Parameter | Expressed in | Unit | Permissible limit value |
Hydrogen potential | pH | — | 6 |
Electrical conductivity | CE | pS/cm | 4,000 |
Total hydrocarbons | TPH | mg/l | <1 |
Polycyclic Aromatic Hydrocarbons (PAHs) | C | mg/l | <0,003 |
Cadmium | Cd | mg/l | <0.05 |
Total chromium | Cr | mg/l | <1.0 |
Vanadium | V | mg/l | <0.2 |
Barium | Ba | mg/l | <5 |
RAOHE Table 7b, Annex 2 | |||
b) WITH impermeabilizaron at the base | |||
Parameter | Expressed in | Unit | Permissible limit value |
Hydrogen potential | pH | — | 4 |
Electrical conductivity | CE | pS/cm | 8,000 |
Total hydrocarbons | TPH | mg/l | <50 |
Polycyclic Aromatic Hydrocarbons (PAHs) | C | mg/l | <0,005 |
Cadmium | Cd | mg/l | <0.5 |
Total chromium | Cr | mg/l | <10.0 |
Vanadium | V | mg/l | <2 |
Barium | Ba | mg/l | <10 |
Excerpts of TULAS, Book VI, Annex 2, Table 2 | ||
Substance | Units (Concentration in Dry Weight) | Soil |
General Parameters | ||
Conductivity | mmhos/cm | 2 |
pH | 6 to 8 | |
Inorganic Parameters | ||
Arsenic | mg/kg | 5 |
Barium | mg/kg | 200 |
Cadmium | mg/kg | 0.5 |
Total Chromium | mg/kg | 20 |
Nickel | mg/kg | 20 |
Lead | mg/kg | 25 |
Vanadium | mg/kg | 25 |
Organic Parameters | ||
Polycyclic Aromatic Hydrocarbons | mg/kg | 0.1 |
Excerpts of TULAS, Book VI, Annex 2, Table 3 | |||||
Substance | Units | Land Use | |||
Agricultural | Residential | Commercial | Industrial | ||
General Parameters | |||||
Electrical Conductivity | mmhos/cm | 2 | 2 | 4 | 4 |
pH | 6 to 8 | 6 to 8 | 6 to 8 | 6 to 8 | |
Inorganic Parameters | |||||
Arsenic | mg/kg | 12 | 15 | 15 | 15 |
Barium | mg/kg | 750 | 500 | 2000 | 2000 |
Cadmium | mg/kg | 2 | 5 | 10 | 10 |
Total Chromium | mg/kg | 65 | 65 | 90 | 90 |
Nickel | mg/kg | 50 | 100 | 100 | 100 |
Lead | mg/kg | 100 | 100 | 150 | 150 |
Vanadium | mg/kg | 130 | 130 | 130 | 130 |
Organic Parameters | |||||
Polycyclic Aromatic Hydrocarbons | mg/kg | < 2 | < 5 | < 1 |
Excerpts of TULAS, Book VI, Annex 1, Table 5
Parameters | Expressed As | Unit | Maximum Permissible Limit |
Arsenic (total) | As | Mg/l | 35 |
Barium | Ba | Mg/l | 338 |
Cadmium | Cd | Mg/l | 3,2 |
Cobalt | Co | Mg/l | 60 |
Copper | Cu | Mg/l | 45 |
Total Chromium | Cr | Mg/l | 16 |
Molybdenum | Mo | Mg/l | 153 |
Mercury (total) | Hg | Mg/l | 0,18 |
Nickel | Ni | Mg/l | 45 |
Lead | Pb | Mg/l | 45 |
Zinc | Zn | Mg/l | 433 |
Total Petroleum Hydrocarbons | Mg/l | 325 | |
"The territory of the Amazon provinces is part of an ecosystem that is necessary for the planet's environmental balance of the planet [sic]. This territory shall constitute a special territorial district, for which there will be integrated planning embodied in a law including social, economic, environmental and cultural aspects, with land use development and planning that ensures the conservation and protection of its ecosystems and the principle of sumak kawsay (the good way of living)".353
"With the aim of safeguarding the biodiversity of the Amazon ecosystem, the central State and decentralized autonomous governments shall adopt sustainable development policies which shall also offset disparities in their development and consolidate sovereignty".354
"In the event of doubt about the scope of legal provisions for environmental issues, it is the most favorable interpretation of their effective force for the protection of nature that shall prevail".
"Responsibility for environmental damage is objective. All damage to the environment, in addition to the respective penalties, shall also entail the obligation to integrally restoring the ecosystems and compensating the affected persons and communities".373
"Each one of the players in the processes of production, distribution, marketing and use of goods or services shall accept direct responsibility for preventing any environmental impact, for mitigating and repairing the damages caused, and for maintaining an ongoing environmental monitoring system".374
"The Contractor will take responsibility for cleanup and reforestation of the area with species similar to those originally found at the site, in order to, with time, allow the site to return to its original potential, with environmental conditions similar to those found at the beginning of the operations. The Contractor will also be responsible for abandonment of the wells and installations for which the Contractor has been responsible under the terms of this Contract. The cleanup, reforestation and return to similar conditions and abandonment activities will comply with the Environmental Regulations for Hydrocarbon Operations and with the provisions of the Environmental Impact Study. The Contractor will not be liable for preexisting environmental conditions at the beginning of the Service Contract activities. In situations where government authorities order remediation of the environment in the Contract Area due to preexisting conditions, the Contractor will not be liable for the costs and services. Moreover, the Contractor will not be liable for environmental conditions resulting from operations conducted by PETROECUADOR or third parties after the Contractor has returned the Contract Area".
"The Contractor shall be responsible for the clean-up, reforestation, and abandonment of non-productive wells and facilities as a result of this Contract. These activities shall be carried out in accordance with the legislation in effect in Ecuador at the time that such clean-up, reforestation, or abandonment is carried out and as contemplated in the Environmental Impact Study.
The Contractor shall not be responsible for pre-existing environmental conditions at the start of the operations under the Contract.
In such cases where the competent authorities order mitigation of the environment in the Contract Area due to pre-existing conditions, any costs incurred in connection with such activities shall be assumed by the Ecuadorian State.
Nor shall the Contractor be responsible for environmental conditions resulting from operations by PETROECUADOR or third parties after the Contract Area is returned by the Contractor".394
"Two (2) years prior to the termination date of this Contract, the Contractor will contract a comprehensive environmental audit of the Contract Area, based on the Environmental Impact Studies, and this audit must be completed no later than six (6) months prior to the termination date of this Contract. The final results of the audit will be binding for the Parties. The cost of performing the audit will be paid by the Parties in equal proportions (50/50). This audit will be performed by a company selected by mutual agreement of the Parties in a written agreement and the audit will comply with applicable Ecuadorian Law. The parties who perform these studies and audits must be previously qualified by the Ministry of Environment through the Undersecretary of the Environment".395
"The presumption of innocence should be established in favour of the environment. From this perspective, the burden of proof should be reversed to be against the defendant […], in other words, counter to the former principle which assumes innocence until guilt is proven, strict liability would be the defense in environmental matters. The plaintiff will not be required to prove causal nexus, and the burden of proof would correspond to the defendant. This principle eliminates one of the barriers impeding access to environmental justice, which is the cost of producing evidence and the technical requirement to prove environmental damages".405
"Today's world and the coming world, with its extraordinary and progressive accumulation of risks, requires greater defense of the values of man, created by a technology that, while it enables everything, it also threatens everything. The variety of real contingencies of dangers and risks that are actually drawn as a result of dissatisfaction and aside from any idea of damages, led to a slow evolution of elements and knowledge that enabled the most advanced legal systems to enter into socialization regimes of risk leading to the proposition that the victim is not left defenseless. This gave rise to the theory of risk, according to which, he who uses and takes advantage of any type of means that endow it with benefits, generates social risks through such means, and, as a result of that circumstance, must assume liability for harm caused by them […]. No fault or wrongfulness is required to recognize tort liability. It is enough that the harm is a direct consequence of the event that has caused it. It is purely strict liability".413
"Hence, the need arises to promulgate a new type of liability for this type of harm, eliminating the criteria of fault through strict liability or the establishment of an absolute presumption of such. The owner of an exploitation or industry should respond directly for harm caused by the referenced industry or exploitation, and he may only exempt himself from liability if he shows that the harm did not arise from the exploitation, and arose instead from a foreign act (force majeure, fault of a third party or the fault of the victim itself)".414
(i) the plaintiff must prove harm connected to the defendant's activities;
(ii) fault is not required; and
(iii) causation is presumed, the defendant being exonerated if he or she proves that the harm was caused by force majeure, the victim or a third party.
"[r]emediation must be limited to those soils that exceed Ecuador's protective regulatory limits", and therefore Ecuador's background case should be dismissed in its entirety.495
"All damage to the environment, in addition to the respective penalties, shall also entail the obligation of integrally restoring the ecosystems and compensating the affected persons and communities".496
"any significant loss, decrease, detriment or impairment to the preexisting conditions in the environment or one of its components. It affects the functioning of the ecosystem or the renewability of its resources".504
"In case of the inapplicability for the specific case of any parameter established in the present regulation, or in case of the absence in the regulation of a relevant parameter for the soil under study, the Environmental Control Entity shall adopt the following evaluation criteria:
The regulated entity must establish the background or reference value of the parameter of interest present in the soil. The regulated entity shall determine the present or current concentration of the parameter under study in the affected area. It shall then proceed to compare the obtained results for the concentration present in the soil against the background values. In general, it is considered that a present concentration greater than three times the background value for the soil denotes contamination that requires immediate attention on the part of the Environmental Control Entity".511
"If the concentration is found to be three times higher than the background value, the Environmental Control Entity shall give immediate attention to this situation and must oblígate the regulated entity to remediate the soil until the present concentration is less than or equal to 1.5 times the background value".512