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Avocats, autres représentants, expert(s), secrétaire du tribunal

Second Partial Award on Track II

A: SELECTED ABBREVIATIONS

Aguinda Litigation Litigation initiated by complaint filed by María Aguinda and others against Texaco before the US District Court for the Southern District of New York, USA on 3 November 1993.
April Hearing Hearing on Track I(b) held on 28-29 April 2014.
Chevron The First Claimant, Chevron Corporation, a legal person organised under the laws of the USA.
February Hearing Hearing on interim measures held on 11 February 2012.
Jurisdiction Hearing Hearing on jurisdiction held on 22-23 November 2010.
Lago Agrio Litigation Litigation initiated by Ángel Piaguage and others against Chevron by a complaint (the "Lago Agrio Complaint") filed before the Superior Court of Justice of Nueva Loja in Ecuador (the "Lago Agrio Court") on 7 May 2003. The Lago Agrio Court issued a judgment on 14 February 2011 and a clarification order on 4 March 2011 (the "Lago Agrio Judgment"). The Lago Agrio Judgment was affirmed by the Lago Agrio Appellate Court by its judgment dated 3 January 2012 and a clarification order dated 13 January 2012 (the "Lago Agrio Appellate Court Judgment"). The National (Cassation) Court of Justice of Ecuador affirmed the Lago Agrio Judgment in part by its Judgment dated 12 November 2013 (the "Cassation Court Judgment"). The Constitutional Court of Ecuador affirmed the Cassation Court Judgment, dismissing Chevron's extraordinary action for protection, by its Judgment dated 27 June 2018 (the "Constitutional Court Judgment").
November Hearing Hearing on Track I held on 26-28 November 2012.
TexPet The Second Claimant, Texaco Petroleum Company, a legal person organised under the laws of the USA, currently a wholly-owned indirect subsidiary of Chevron. Until 2001, TexPet was a wholly-owned direct subsidiary of Texaco.
Texaco Texaco Inc., a legal person organised under the laws of the USA.
Treaty (or BIT) Treaty between the USA and Ecuador concerning the Encouragement and Reciprocal Protection of Investment, signed on 27 August 1993, in effect from 11 May 1997.
PetroEcuador Empresa Pública de Hidrocarburos del Ecuador, an Ecuadorian State-owned oil corporation; successor to Corporación Estatal Petrolera Ecuatoriana, or "CEPE", from 1989.
RICO Litigation Litigation initiated by Chevron on 1 February 2011 before the US District Court for the Southern District of New York, USA against Stephen Donziger and others pursuant to (inter alia) 18 USC Section 1962 (Racketeer Influenced and Corrupt Organizations), leading to the RICO trial in October-November 2013 and the RICO Judgment of 4 March 2014, affirmed by the US Court of Appeals for the Second Circuit by its judgment of 8 August 2016 and the US Supreme Court's denial of the appellants' petition for certiorari on 19 June 2017.
Site Visit Tribunal's site visit in the Sucumbíos and Orellana Provinces of the Oriente in Ecuador on 4-10 June 2015. The Site Visit included the following sites: Shushufindi-34, Aguarico-06, Shushufindi-55 and Lago Agrio-02.
Track II Hearing Hearing on Track II held on 21 April-8 May 2015.
UNCITRAL Arbitration Rules Arbitration Rules of the United Nations Commission on International Trade Law (1976).
Unfiled Materials Materials allegedly incorporated into the Lago Agrio Judgment (without attribution) which were allegedly never filed by the Lago Agrio Plaintiffs during the Lago Agrio Litigation.
Zambrano Computers Two Hewlett Packard computers used by Judge Zambrano during the Lago Agrio Litigation. The first (serial number MXJ64005TG) was manufactured and shipped in 2006 (the "Old Computer"), and the second (serial number MXL0382C3D) was manufactured, purchased and made available to Judge Zambrano in November 2010 (the "New Computer").

 

B: SELECTED DRAMATIS PERSONAE

Aguinda Plaintiffs Plaintiffs in the Aguinda Litigation, initiated by complaint filed before the US District Court for the Southern District of New York on 3 November 1993.
Douglas Beltman Consultant, Stratus Consulting, Inc; technical expert for the Lago Agrio Plaintiffs.
Lawrence W. Barnthouse Technical expert for the Lago Agrio Plaintiffs; one of the "cleansing experts" for the Cabrera Report.
Joseph Berlinger Director of the documentary film Crude (2009).
Cristóbal Bonifaz Legal representative acting for the Aguinda Plaintiffs and the Lago Agrio Plaintiffs.
Ms "C" Temporary student secretary employed by Judge Zambrano during the Lago Agrio Litigation, from mid-November 2010 to February 2011. The Tribunal has elected not to give her full name in this Award. (The Parties are aware of her full name).
Richard Stalin Cabrera Vega Global assessment expert of the Lago Agrio Court in the Lago Agrio Litigation; purported author of the Cabrera Report.
Charles W. Calmbacher Technical expert retained in 2004 by the Lago Agrio Plaintiffs to act as a judicial inspection expert in the Lago Agrio Litigation.
Ximera Centeno Employee at Selva Viva (an Ecuadorian legal entity).
Richard W. Clapp Epidemiologist; technical expert for the Lago Agrio Plaintiffs; principal author of the 'Clapp Report'.
John Connor President, GSI Environmental Inc; technical expert for the Claimants; a defendant in US Section 1782 proceedings initiated by Ecuador for discovery for use in this arbitration.
Steven Donziger USA attorney, acting as representative of the Aguinda Plaintiffs and the Lago Agrio Plaintiffs.
Graham Erion USA attorney, author of the 'Erion Memorandum' (2008).
Pablo Fajardo Mendoza Ecuadorian attorney, acting as representative of the Lago Agrio Plaintiffs.
Alberto Guerra Bastidas Ecuadorian judge, Lago Agrio Court, presiding over the Lago Agrio Litigation from May 2003 to February 2004.
Judith Kimerling USA attorney; Professor of Law and Policy, The City University of New York, Queens College and School of Law, USA; author on the Amazon; legal representative of the plaintiffs in the Huaorani Litigation.
Joseph Kohn USA attorney, of Kohn, Swift & Graf, acting as representative of the Lago Agrio Plaintiffs; non-party funder of the Lago Agrio Litigation.
Lago Agrio Plaintiffs Plaintiffs in the Lago Agrio Litigation, initiated by a Complaint filed in the Lago Agrio Court on 7 May 2003.
Anne Maest Consultant, of Stratus Consulting, Inc; technical expert for the Lago Agrio Plaintiffs.
Nicholas Moodie Australian legal intern, assistant to the Lago Agrio Plaintiffs' representatives; author of the 'Moodie Memorandum' (2009).
Rodrigo Pérez Pallares Legal representative of TexPet; signatory of the 1995 Settlement Agreement (with the 1998 Final Release).
Alejandro Ponce Villacís Ecuadorian attorney, acting as representative of the Lago Agrio Plaintiffs.
Julio Prieto Méndez Ecuadorian attorney, acting as representative of the Lago Agrio Plaintiffs.
Ricardo Reis Veiga Vice-President, TexPet; signatory of the 1995 Settlement Agreement (with the 1995 Remedial Action Plan and the 1998 Final Release).
Ramiro Fernando Reyes Petroleum and environmental engineer; technical expert for the Lago Agrio Plaintiffs.
David Russell Environmental expert, of Global Environmental Operations, Inc; technical expert for the Lago Agrio Plaintiffs.
Juan Pablo Sáenz Ecuadorian attorney, acting as representative of the Lago Agrio Plaintiffs.
Norman Alberto Wray Ecuadorian attorney, and, at different times, judge of the Ecuadorian Supreme Court and representative of the Lago Agrio Plaintiffs.
Luis Yanza Director of the "Frente de Defensa La Amazonia" (the Amazon Defense Front or ADF); acting as representative of the Lago Agrio Plaintiffs.
Germán Yánez Ecuadorian judge, Lago Agrio Court, presiding over the Lago Agrio Litigation from February 2006 to October 2007.
Nicolás Augusto Zambrano Ecuadorian judge, Lago Agrio Court, presiding over the Lago Agrio Litigation from (i) October 2009 to March 2010 and (ii) October 2010 to February/March 2011.

C: GLOSSARY OF PRINCIPAL WRITTEN SUBMISSIONS 2009-2016

C-NoA Sept. 2009 Claimants' Notice of Arbitration dated 23 September 2009.
C-IM Apr. 2010 Claimants' Request for Interim Measures dated 1 April 2010.
R-IM May 2010 Respondent's Response to Claimants' Request for Interim Measures dated 3 May 2010.
R-Jur. May 2010 Respondent's Summary Description of its Preliminary Jurisdictional and Admissibility Objections dated 3 May 2010.
C-IM May 2010 Claimants' Reply in Support of Interim Measures dated 7 May 2010.
R-Jur. July 2010 Respondent's Memorial on Jurisdictional Objections dated 26 July 2010.
C-Jur. Sept. 2010 Claimants' Counter-Memorial on Jurisdiction dated 6 September 2010.
R-Jur. Oct. 2010 Respondent's Reply Memorial on Jurisdictional Objections dated 6 October 2010.
C-Mer. Sept. 2010 Claimants' Memorial on the Merits dated 6 September 2010 (as amended on 23 September 2010).
C-Jur. Nov. 2010 Claimants' Rejoinder on Jurisdiction dated 6 November 2010.
R-TI July 2012 Respondent's Track I Counter-Memorial on the Merits dated 3 July 2012.
C-Mer. Mar. 2012 Claimants' Supplemental Memorial on the Merits dated 20 March 2012.
C-TI Aug. 2012 Claimants' Reply Memorial on the Merits Track I dated 29 August 2012.
R-TI Oct. 2012 Respondent's Track I Rejoinder on the Merits dated 26 October 2012.
C-TI Nov. 2012 Claimants' document submitted at the Track I Hearing in November 2012, setting out their prayer for relief.
R-TII Feb. 2013 Respondent's Track II Counter-Memorial on the Merits dated 18 February 2013.
R-Show Cause Apr. 2013 Respondent's letter to the Tribunal on "Show Cause" and "Reconsideration" dated 15 April 2013.
C-Show Cause May 2013 Claimants' Initial Pleading on "Show Cause" and "Reconsideration" dated 6 May 2013.
R-IM June 2013 Respondent's Request for Enforcement of Interim Measures dated 3 June 2013.
C-TII June 2013 Claimants' Reply Memorial–Track II dated 5 June 2013 (as amended on 12 June 2013).
C-IM June 2013 Claimants' Response to Respondent's Request for Enforcement of Interim Measures dated 17 June 2013.
R-IM July 2013 Respondent's Reply in Support of its Request for Enforcement of Interim Measures dated 17 July 2013.
R-Show Cause July 2013 Respondent's Reply on "Show Cause" and "Reconsideration" dated 19 July 2013.
C-IM Aug. 2013 Claimants' Response to Respondent's Reply in Support of its Request for Enforcement of Interim Measures dated 8 August 2013.
C-Show Cause Aug. 2013 Claimants' Rejoinder on "Show Cause" and "Reconsideration" dated 30 August 2013.
R-TII Dec. 2013 Respondent's Track II Rejoinder on the Merits dated 16 December 2013.
C-TI Jan. 2014 Claimants' Supplemental Memorial on Track I dated 31 January 2014.
R-TI Mar. 2014 Respondent's Track I Supplemental Counter-Memorial on the Merits dated 31 March 2014.
C-TII May 2014 Claimants' Supplemental Memorial on Track II dated 9 May 2014.
C-TII Aug. 2014 Claimants Post-Submission Insert to their Supplemental Memorial on Track II – Examination of Zambrano Computer Hard Drives dated 15 August 2014.
R-TII Nov. 2014 Respondent's Track II Supplemental Counter-Memorial on the Merits dated 7 November 2014.
C-TII Jan. 2015 Claimants' Reply to the Respondent's Supplemental Track II Memorial dated 14 January 2015.
R-TII Mar. 2015 Respondent's Track II Supplemental Rejoinder on the Merits dated 17 March 2015.
C-TI July 2015 Claimants' Post-Track II Hearing Brief on Track I Issues dated 15 July 2015.
R-TI July 2015 Respondent's Track IB Post-Hearing Memorial dated 15 July 2015.
C-TII Aug. 2016 Claimants' Submission Concerning Digital Forensic Evidence and the Report of the Tribunal-Appointed Digital Forensics Expert dated 12 August 2016.
R-TII Aug. 2016 Respondent's Track II Supplemental Memorial on the Forensic Evidence of the Republic of Ecuador dated 12 August 2016.
C-TII Aug. 2016 Claimants' Reply Submission Concerning Digital Forensic Evidence and the Report of the Tribunal-Appointed Digital Forensics Expert dated 26 August 2016.
R-TII Aug. 2016 Respondent's Track II Supplemental Reply on the Forensic Evidence of the Republic of Ecuador dated 26 August 2016.

D: SELECTED LEGAL MATERIALS

(1) International Court of Justice/Permanent Court of International Justice

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ, Judgment, 26 February 2007, 2007 ICJ Reports 43, CLA-640.

Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), ICJ, Judgment, 14 February 2002, 2002 ICJ Reports 3, CLA-415.

Avena and Other Mexican Nationals (Mexico v. United States of America) I, ICJ, Judgment, 31 March 2004, 2004 ICJ Reports 12.

Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), ICJ, Judgment, 20 July 1989, 1989 ICJ Reports 15, CLA-237.

The Factory at Chorzów (Germany v. Poland), PCIJ, Judgment (Jurisdiction), 26 July 1927, 1927 PCIJ Series A No. 9; Judgment (Merits), 13 September 1928, 1928 PCIJ Series A No. 17, CLA-406.

Fisheries Jurisdiction (Germany v. Iceland), ICJ, Judgment (Merits), 25 July 1974, 1974 ICJ Reports 175.

Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), ICJ, Judgment, 3 February 2012, 2012 ICJ Reports 99, CLA-616.

LaGrand (Germany v. United States of America), ICJ, Judgment, 27 June 2001, 2001 ICJ Reports 466, CLA-46.

Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), ICJ, Judgment (Preliminary Question), 15 June 1954, 1954 ICJ Reports 19, RLA-19.

Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), ICJ, Judgment, 4 June 2008, 2008 ICJ Reports 177.

Nuclear Tests (Australia v. France), ICJ, Judgment, 20 December 1974, 1974 ICJ Reports 253.

Certain Phosphate Lands in Nauru (Nauru v. Australia), ICJ, Judgment, 26 June 1992, 1992 ICJ Reports 240.

(2) Arbitral Decisions

Mohammad Ammar Al-Bahloul v. Republic of Tajikstan, SCC Case No. V (064/2008), Partial Award, 9 September 2009.

Limited Liability Company AMTO v. Ukraine, SCC Arb. No. 080/2005, Final Award, 26 March 2008, RLA-343.

Franck Charles Arif v. Republic of Moldova, ICSID Case No. ARB/11/23, Award, 8 April 2013, RLA-651.

Robert Azinian, Kenneth Davitian, and Ellen Baca v. United Mexican States, ICSID Case No. ARB(AF)/97/2, Award, 1 November 1999, CLA-299.

Estate of Jean-Baptiste Caire (France) v. United Mexican States, French-Mexican Claims Commission, Decision No. 33, 7 June 1929, V RIAA 516, CLA-597.

Chevron Corporation and Texaco Petroleum Corporation v. Republic of Ecuador, PCA Case No. 2007-02/AA277, UNCITRAL, Interim Award, 1 December 2008, CLA-1; Partial Award on the Merits, 30 March 2010, CLA-47.

Compañía de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentine Republic, ICSID Case No. ARB/97/3, Award, 20 August 2007, CLA-288.

Concurring and Dissenting Opinions of Howard M. Holtzmann with respect to Interlocutory Awards on Jurisdiction in Nine Cases Containing Various Forum Selection Clauses (Cases Nos. 6, 51, 68, 121, 140, 159, 254, 293 and 466), 5 November 1982, 1 Iran-US Claims Tribunal Reports 284.

Duke Energy Electroquil Partners v. Republic of Ecuador, ICSID Case No. ARB/04/19, Award, 18 August 2008, RLA-40.

Republic of Ecuador v. United States of America, PCA Case No. 2012-05, Award, 29 September 2012.

EnCana Corporation. v. Republic of Ecuador, LCIA Case No. UN3481, Award, 3 February 2006, RLA-41.

Ethyl Corporation v. Government of Canada, UNCITRAL (Ad hoc), Award on Jurisdiction, 24 June 1998.

European American Investment Bank AG (EURAM) v. Slovak Republic, PCA Case No. 2010-17, Second Award on Jurisdiction, 4 June 2014.

Flughafen Zürich A.G. and Gestión de Ingeniería IDC S.A. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/10/19, Award, 18 November 2014, CLA-602.

Frontier Petroleum Services Ltd. v. Czech Republic, PCA Case No. 2008-09, Award, 12 November 2010.

Award between the United States and the United Kingdom relating to the rights of jurisdiction of the United States in the Bering Sea and the preservation of fur seals, Ad hoc, Award, 15 August 1893, XXVIII RIAA 263 reprinted from J.B. Moore, History and Digest of the International Arbitrations to Which the United States has been a Party, vol. I, (1898).

GEA Group Aktiengesellschaft v. Ukraine, ICSID Case No. ARB/08/16, Award, 31 March 2011, CLA-300, RLA-648.

Grand River Enterprises Six Nations, Ltd., et al. v. United States of America, UNCITRAL (Ad hoc), Decision on Objections to Jurisdiction, 20 July 2006, CLA-631.

Himpurna California Energy Ltd. v. PT. (Persero) Perusahaan Listruik Negara, UNCITRAL (Ad hoc), Final Award, 4 May 1999, XXV Yearbook Commercial Arbitration 11.

Iberdrola Energía S.A. v. Republic of Guatemala, ICSID Case No. ARB/09/5, Award, 17 August 2012, CLA-608.

International Thunderbird Gaming Corporation v. United Mexican States, UNCITRAL (Ad hoc), Award, 26 January 2006, CLA-223.

Jan de Nul N.V. and Dredging International N.V. v. Arab Republic of Egypt, ICSID Case No. ARB/04/13, Award, 6 November 2008, CLA-230.

Aron Kahane (successor-in-interest) v. Francesco Parsi and Austria, Romanian-Austrian Mixed Arbitration Tribunal, Award, 19 March 1929, (1929) VIII Recueil des Décisions des Tribunaux Arbitraux Mixtes 943.

Kunkel et. al. v. Polish State, German-Polish Mixed Arbitration Tribunal, Award, 2 December 1925, (1927) VI Recueil des Décisions des Tribunaux Arbitraux Mixtes 979, (1929) Annual Digest of Public International Law Cases 1925-1926 418, RLA-44.

Lanco International Inc. v. Argentine Republic, ICSID Case No. ARB/97/6, Preliminary Decision on Jurisdiction, 8 December 1998, CLA-176.

Liman Caspian Oil BV and NCL Dutch Investment BV v. Republic of Kazakhstan, ICSID Case No. ARB/07/14, Award, 22 June 2010, RLA-486.

Loewen Group, Inc. and Raymond L. Loewen v. United States of America, ICSID Case No. ARB(AF)/98/3, Decision on Hearing of Respondent's Objection to Competence and Jurisdiction, 5 January 2001, CLA-425; Final Award, 26 June 2003, CLA-44; Decision on Respondent's Request for a Supplementary Decision, 6 September 2004, CLA-643. See also First Opinion of Sir Robert Jennings QC, 26 October 1998, CLA-647; First Opinion of Christopher Greenwood QC, 26 March 2001, CLA-645.

Mamidoil Jetoil Greek Petroleum Products Societe S.A. v. Republic of Albania, ICSID Case No. ARB/11/24, Award, 30 March 2015.

Merrill and Ring Forestry L.P. v. Government of Canada, ICSID Case No. UNCT/07/1, Award, 31 March 2010, CLA-606.

Mondev International Ltd. v. United States of America, ICSID Case No. ARB(AF)/99/2, Award, 11 October 2002, CLA-7.

Jan Oostergetel and Theodora Laurentius v. Slovak Republic, UNCITRAL (Ad hoc), Final Award, 23 April 2012, RLA-307.

Orascom TMT Investments S.à r.l. v. People's Democratic Republic of Algeria, ICSID Case No. ARB/12/35, Award, 31 May 2017.

Pantechniki S.A. Contractors & Engineers (Greece) v. Republic of Albania, ICSID Case No. ARB/07/21, Award, 30 July 2009, RLA-17.

Petrobart Limited v. Kyrgyz Republic, SCC Arb. No. 126/2003, Award, 29 March 2005.

Petrolane, Inc. v. Islamic Republic of Iran, IUSCT, Award No 518-131-2, 14 August 1991, 27 Iran-US Claims Tribunal Reports 64.

Victor Pey Casado and President Allende Foundation v. Republic of Chile, ICSID Case No. ARB/98/2, Award, 8 May 2008, CLA-82.

Phillips Petroleum Co. Iran v. Islamic Republic of Iran and National Iranian Oil Company, IUSCT Case No. 39, Award No. 425-39-2, 29 June 1989, RLA-71.

Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Decision on Jurisdiction, 8 February 2005, CLA-67, RLA-350.

Frederica Lincoln Riahi v. Islamic Republic of Iran, IUSCT, Award No. 600-485-1, 27 February 2003.

Spyridon Roussalis v. Romania, ICSID Case No. ARB/06/01, Award, 7 December 2011.

Rumeli Telekom A.S. and Telsim Mobil Telekomunikasyon Hizmetleri A.S. v. Republic of Kazakhstan, ICSID Case No. ARB/05/16, Award, 29 July 2008, CLA-231.

S.D. Myers, Inc. v. Government of Canada, UNCITRAL (Ad hoc), Partial Award, 13 November 2000, CLA-462.

Swisslion DOO Skopje v. The Former Yugoslav Republic of Macedonia, ICSID Case No. ARB/09/16, Award, 6 July 2012.

United Parcel Service of America Inc. v. Government of Canada, ICSID Case No. UNCT/02/1, Award on Jurisdiction, 22 November 2002.

Waste Management v. United Mexican States (No. 2), ICSID Case No. ARB(AF)/00/3, Award, 30 April 2004, CLA-42.

White Industries Australia Limited v. India, UNCITRAL (Ad hoc), Award, 30 November 2011, RLA-347.

World Duty Free Company Limited v Republic of Kenya, ICSID Case No. ARB/00/7, Award, 4 October 2006, 46 ILM 339, RLA-548.

Kenneth P. Yeager v. Islamic Republic of Iran, IUSCT Case No. 10199, Award No. 324-10199-1, 2 November 1987, 17 Iran-US Claims Tribunal Reports 92, RLA-547.

(3) Decisions of National Courts

Loewen v. United States, No. 04-2151, Mem. Op. (D.C. 31 October 2005), CLA-644.

Republic of Ecuador v. Chevron Corporation & Texaco Petroleum Company, 638 F.3d 384 (2d Cir. 17 March 2011) CLA-435, R-247.

Republic of Ecuador v. John A. Connor et. al., 2013 W1 539011 (C.A.5 (Tex.)) (5th Cir. 13 February 2013), RLA-432.

New Hampshire v. Maine, 532 U.S. 742 (29 May 2001).

(4) Scholarly Writings

S. Baker & M. Davis, The UNCITRAL Arbitration Rules in Practice: The Experience of the Iran-United States Claims Tribunal (1992), CLA-34, RLA-447.

D. Bowett, "Estoppel before International Tribunals and its Relation to Acquiescence" (1957) 33 British Yearbook of International Law 176, CLA-179.

D. Caron, L. Kaplan & M. Pellonpää, The UNCITRAL Arbitration Rules: A Commentary (2006).

D. Caron & L. Kaplan, The UNCITRAL Arbitration Rules: A Commentary, 2nd ed. (2013), CLA-580, RLA-545.

B. Cheng, General Principles of Law, as Applied by International Courts and Tribunals (1953, reprinted 1987), CLA-108, RLA-100.

J. Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (2002), CLA-288, RLA-549.

J. Crawford, State Responsibility: The General Part (2013), RLA-556.

Z. Douglas, "The Hybrid Nature of Investment Treaty Arbitration" (2003) 74 British Yearbook of International Law 152, CLA-177.

G.G. Fitzmaurice, "The Meaning of the Term 'Denial of Justice'" (1932) 13 British Yearbook of International Law 93, CLA-301.

A.V. Freeman, The International Responsibility of States for Denial of Justice (1938), CLA-297.

J. Gaffney & J. Loftis, "The 'Effective Means Meaning' of BITs and the Jurisdiction of Treaty-based Tribunals to hear Contract Claims" (2007) 8(1) Journal of World Investment & Trade 5, CLA-213.

Harvard Law Review, "Developments in the Law of Res Judicata" (1951-1952) 65 Harvard Law Review 818.

J. van Hof , Commentary on the UNCITRAL Arbitration Rules: The Application by the Iran-U.S. Claims Tribunal (1991).

I. MacGibbon, "Estoppel in International Law" (1958) 7 International and Comparative Law Quarterly 468, CLA-107, CLA-107.

M. Mustill & S. Boyd, Commercial Arbitration (1982).

A. McNair, "The Legality of the Occupation of the Ruhr" (1924) 5 British Yearbook of International Law 17.

D.P. O'Connell, International Law, 2nd ed. (1970).

J. Paulsson, Denial of Justice in International Law (2005), RLA-61.

S. Schwebel, International Arbitration: Three Salient Problems (1987).

T. Webster, Handbook of UNCITRAL Arbitration: Commentary, Precedents and Materials for UNCITRAL Based Arbitration Rules (2010).

(5) Other Legal Materials

Constitución de la República del Ecuador 2008 (2008 Ecuadorian Constitution), as amended on 13 July 2011, Registro Oficial 449 de 20 de octubre de 2008 (Ecuador), RLA-164.

International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001) II (Part Two) Yearbook of the ILC 31, CLA-291.

International Law Commission, Draft Articles on the Law of Treaties, with commentaries (1966) II (Part Two) Yearbook of the ILC 187.

International Law Commission, Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations, with commentaries thereto (2006) II (Part Two) Yearbook of the ILC 161.

International Law Commission, Law of Treaties, Report by Mr H. Lauterpacht, Special Rapporteur, UN Doc A/CN.4/63, (1953) II Yearbook of the ILC 90.

Ley para el Juzgamiento de la Colusion (Collusion Prosecution Act), as amended on 9 March 2009, Registro Oficial 269 de 3 de febrero de 1977 (Ecuador), RLA-493.

Treaty of Versailles (Treaty of Peace between the Allied and Associated Powers and Germany), 28 June 1919, UKTS 4 (1919), CMD 153.

United Nations, Basic Principles on the Independence of the Judiciary, UN Doc. A/CONF.121/22/Rev.1 59 (1985), CLA-293.

United Nations General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, UNGA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) 52, UN Doc. A/6316 (1966), 999 UNTS 171, 6 ILM 368 (1967).

United Nations General Assembly, United Nations Convention against Corruption, 31 October 2003, UNGA res. 58/4, UN Doc. A/58/422.

United Nations General Assembly, Universal Declaration of Human Rights, 10 December 1948, UNGA res. 217A (III), UN Doc. A/810 71 (1948).

United Nations Conference on the Law of Treaties, Vienna Convention on the Law of Treaties, 23 May 1969, UN Doc. A/CONF.39/11/Add.2, 1155 UNTS 331, 8 ILM 679 (1969), CLA-10.

PART I - THE ARBITRATION – TRACK II

A: The Parties and Other Persons

1.1.
The First Claimant : The First Claimant is Chevron Corporation, a legal person organised under the laws of the United States of America, with its principal place of business at 6001 Bollinger Canyon Road, San Ramon, California 94583, U.S.A. (for ease of reference, herein called "Chevron").1
1.2.
The Second Claimant : The Second Claimant is Texaco Petroleum Company, also a legal person organised under the laws of the United States of America, with its principal place of business at 6001 Bollinger Canyon Road, San Ramon, California 94583 U.S.A. (for ease of reference, herein called "TexPet").
1.3.
Until 2001, TexPet was a wholly-owned indirect subsidiary of Texaco Inc., a legal person organised under the laws of the United States of America (for ease of reference, herein called "Texaco"); and thereafter, as from 2001, TexPet became and remains a wholly-owned indirect subsidiary of Chevron.
1.4.
The Claimants' Legal Representatives : The Claimants are represented by: Mr Hewitt Pate (General Counsel of the First Claimant); Mr Ricardo Reis Veiga, Mr Jose L. Martin and Mr Andrés R. Romero (in-house counsel of the First Claimant); R. Doak Bishop Esq, Tracie Renfroe Esq, Wade M. Coriell Esq, David H. Weiss Esq, Carol Wood Esq, Elizabeth Silbert Esq, Sara McBrearty Esq, Eldy Quintanilla Roché Esq, Sara McBrearty Esq, Anisha Sud Esq, and Ginny Castelan Esq (all of King & Spalding LLP, Houston, Texas, USA); Edward G. Kehoe Esq, Caline Mouawad Esq, Isabel Fernández de la Cuesta Esq, John Calabro Esq and Jessica Beess und Chrostin Esq (all of King & Spalding LLP, New York, New York, USA); Brian A. White Esq and Amelia S. Magee Esq (of King & Spalding, Atlanta, Georgia, USA); Professor James Crawford SC (of London, United Kingdom, until November 2014); and Professor Jan Paulsson and Luke Sobota Esq (both of Three Crowns LLP, Washington DC, USA, from May 2013).
1.5.
The Respondent : the Respondent is the Republic of Ecuador. It has owned and controlled at all material times Empresa Estatal de Petróleos del Ecuador (herein called "PetroEcuador", known earlier as its predecessor "CEPE"), a legal person formed under the laws of Ecuador.
1.6.
The Respondent's Legal Representatives : The Respondent is represented by: Dr Diego García Carrión (Procurador General del Estado, until February 2018); Dr Rafael Parreño Navas (acting Procurador General del Estado, from February 2018 until August 2018); Dr Íñigo Salvador Crespo (Procurador General del Estado, from August 2018); Dra Blanca Gómez de la Torre (Directora de Asuntos Internacionales y Arbitraje, Procuraduría General del Estado, until August 2018); Dra Claudia Salgado Levy (Directora de Asuntos Internacionales y Arbitraje, Procuraduría General del Estado, from August 2018); Dra Christel Gaibor, Mr Luis Felipe Aguilar, Ms Daniela Palacios, Ms Maria Teresa Borja, Mr Xavier Rubio and Macarena Bahamonde (of the Procuraduría General del Estado) (all of Quito, Ecuador); Eric W. Bloom Esq, Tomás Leonard Esq, Nicole Silver Esq, Eric Goldstein Esq, Carolina Romero Acevedo and Kathy Ames Valdivieso (all of Winston & Strawn LLP, Washington DC, USA); Ricardo Ugarte Esq (of Winston & Strawn LLP, Chicago, Illinois, USA); Nassim Hooshmandnia Esq (of Winston & Strawn LLP, Hong Kong, China); Professor Pierre Mayer (of Paris, France); Professor Eduardo Silva Romero, José Manuel García Represa Esq and Audrey Caminades Esq (all of Dechert LLP, Paris, France); Dr Álvaro Galindo Cardona (of Dechert LLP, Washington DC, USA). The Respondent was also represented in earlier proceedings by Professor Zachary Douglas QC and Mr Luis González García (both of Matrix Chambers, London) and Gregory Ewing Esq (currently of David, Agnor, Rapaport & Skalny, Columbia, MD, USA).
1.7.
Other Persons: These other persons include the following, none of whom are parties to this arbitration; namely the "Lago Agro Plaintiffs" in the legal proceedings in Ecuador known as the "Lago Agrio Litigation"; the "Aguinda Plaintiffs" in the earlier legal proceedings in New York known as the "Aguinda Litigation"; the several respondents in the legal proceedings in the USA known as the "US 1782 Litigation"; the several defendants in the legal proceedings known as the "RICO Litigation" in New York; and the parties in the legal proceedings known as the "Huaorani Litigation" in New York. Part I – Page 2 These persons' legal representatives and advisers in the USA and Ecuador are not parties to, nor legally represented in, these arbitration proceedings.
1.8.
Texaco, TexPet's parent company until 2001, is not a named party to these arbitration proceedings; nor is it legally represented in these proceedings. Texaco was a party to the Aguinda Litigation; but it was not a party to the Lago Agrio Litigation.
1.9.
PetroEcuador is not a named party to these arbitration proceedings; nor is it legally represented in these arbitration proceedings. PetroEcuador was not a party to the Aguinda Litigation or the Lago Agrio Litigation.
1.10.
Dr (formerly, Judge) Nicolás Augusto Zambrano Lozada, Dr (formerly, Judge) Alberto Guerra Bastidas and Steven Donziger Esq are not named parties to these arbitration proceedings; nor are they legally represented in these arbitration proceedings.

B: The Arbitration Agreement

1.11.
The arbitration agreement invoked by the Claimants is contained in 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 (the "Treaty"), providing, inter alia, as follows:

Article VI(2): "In the event of an investment dispute, the parties to the dispute should initially seek a resolution through consultation and negotiation. 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 :

(a) to the courts or administrative tribunals of the Party that is a party to the dispute; or

(b) in accordance with any applicable, previously agreed dispute-settlement procedures; or

(c) in accordance with the terms of paragraph 3".

Article VI(3): "(a) Provided that the national or company concerned has not submitted the dispute for resolution under paragraph 2 (a) or (b) and that six months have elapsed from the date on which the dispute arose, the national or company concerned may choose to consent in writing to the submission of the dispute for settlement by binding arbitration:

(iii) in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL);..."

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. Such consent, together with the written consent of the national or company when given under paragraph 3 shall satisfy the requirement for :

(b) an "agreement in writing" for purposes of Article II of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958 ("New York Convention")..."

Article VI(5): "Any arbitration under paragraph 3(a) (ii), (iii) or (iv) of this Article shall be held in a state that is a party to the New York Convention."

Article VI(6): "Any arbitral award rendered pursuant to this Article shall be final and binding on the parties to the dispute. Each Party undertakes to carry out without delay the provisions of any such award and to provide in its territory for its enforcement."

(For ease of reference, these terms cited from Article VI of the Treaty, with the UNCITRAL Arbitration Rules (1976), are herein collectively called the "Arbitration Agreement").

1.12.
Pursuant to Article VI(3)(a)(iii) of the Treaty (cited above), the Arbitration Agreement incorporates the UNCITRAL Arbitration Rules (1976) (the "UNCITRAL Arbitration Rules").
1.13.
Pursuant to Article 3(2) of the UNCITRAL Arbitration Rules, these arbitration proceedings are deemed to have commenced on 29 September 2009.
1.14.
By agreement of the Parties (as confirmed by the Tribunal's Agreed Procedural Order No 1), the place (or legal seat) of this arbitration is The Hague, the Netherlands within the meaning of Article 16 of the UNCITRAL Arbitration Rules. The Netherlands is a Contracting State to the 1958 New York Convention.
1.15.
By further agreement of the Parties (as also confirmed by the Tribunal's Agreed Procedural Order No 1), English and Spanish are the official languages of this arbitration within the meaning of Article 17 of the UNCITRAL Arbitration Rules; and, as between them, English is to be the authoritative language, with all oral proceedings to be simultaneously interpreted and transcribed into English and Spanish.

C: The Arbitral Tribunal

1.16.
Pursuant to the Arbitration Agreement, the Tribunal is comprised of three arbitrators appointed thereunder as follows:

* Dr Grigera Naón : 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 Naón, of 5224 Elliott Road, Bethesda, Maryland 20816, 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.

* Mr Veeder : By email of 22 January 2010, the Claimants informed the Permanent Court of Arbitration ("PCA") that the two co-arbitrators were unable to agree on the appointment of the presiding third arbitrator. 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." Accordingly, on 25 February 2010 and in accordance with the Parties' agreement, the Secretary-General of the PCA appointed as the presiding arbitrator Mr V.V. Veeder, of Essex Court Chambers, 24 Lincoln's Inn Fields, London WC2A 3EG, United Kingdom.

(Professor Lowe and Mr Veeder are individual members of the English Bar. As such, albeit from the same barristers' chambers, they practise as arbitrators independently from each other, as disclosed by Mr Veeder in his Declaration of Acceptance and Statement of Impartiality and Independence dated 26 January 2010).

1.17.
By further agreement of the Parties, the PCA's International Bureau was appointed to administer these arbitration proceedings, with Mr Martin Doe (of the PCA) acting as Secretary to the Tribunal.
1.18.
In its Procedural Order No. 32 dated 26 March 2015, by consent of the Parties and upon the terms set out, the Tribunal appointed Ms Jessica Wells as an additional Secretary to the Tribunal in this arbitration.

D: The Arbitral Procedure

1.19.
Earlier Orders, Decision and Awards in Tracks 1 and 1B : This Award follows three Orders on Interim Measures, five Awards, a Decision, and more than 57 procedural orders made in these arbitration proceedings. The operative parts of these Orders on Interim Measures, Awards and Decision are cited below in Annex 1 to this Part I. The Tribunal's Procedural Orders relevant to Track II are listed below in Annex 2 to this Part I.
1.20.
This Award is made in Track II of this arbitration, following Track I and Track Ib. It serves no purpose to revisit here the full procedural history of these arbitration proceedings from February 2010. For simplicity's sake, the Tribunal hereby incorporates by reference Part I of its Third Interim Award on Jurisdiction, Part A of its First Partial Award on Track I and Part B of its Decision on Track IB. It here includes only a summary of the major procedural events following the Tribunal's Decision on Track IB dated 12 March 2015 (the "Decision on Track IB").
1.21.
Orders for Interim Measures, Awards and Decision : As already indicated, the operative parts of the Tribunal's three Orders for Interim Measures dated 14 May 2010, 6 December 2010 and 7 February 2011, its five Awards dated 25 January 2012, 16 February 2012, 27 February 2012, 7 February 2013, 17 September 2013 and its Decision dated 12 March 2015 are cited below in Annex 1 to this Part 1.
1.22.
Track II Procedure: The Tribunal issued its Decision on Track IB on 12 March 2015. The Tribunal there decided (by a majority), in the form of a decision under the Arbitration Agreement: that (i) the Complaint dated 7 May 2003 of the Lago Agrio Plaintiffs in the Lago Agrio Litigation, as an initial pleading, included individual claims resting upon individual rights under Ecuadorian law, not falling within the scope of the 1995 Settlement Agreement as diffuse claims; (ii) the Complaint was not wholly barred at its inception by res judicata under Ecuadorian law, by virtue of the 1995 Settlement Agreement; and (iii) the Lago Agrio Complaint included individual claims materially similar, in substance, to the individual claims made by the Aguinda Plaintiffs in the Part I – Page 6 Aguinda Litigation in New York. The Tribunal expressly reserved its powers to address and decide the remainder of the Parties' claimed relief in Track IB by one or more further orders, decisions or awards at a later stage of these arbitration proceedings.
1.23.
On 12 March 2015, the Tribunal issued Procedural Orders No. 29 and 30. In Procedural Order No. 29, the Tribunal ordered (by consent of the Parties) an amendment to the Confidentiality Clause forming part of Procedural Order No. 26 so as to exclude from confidentiality certain passages addressing the results of the joint inspection of Judge Zambrano's computer hard drives in the Parties' respective memorials of 7 November 2014 and 14 January 2015. In Procedural Order No. 30, the Tribunal designated four sites for the purpose of its Site Visit in Ecuador and decided upon a number of procedural matters related to the Site Visit.
1.24.
On 26 March 2015, the Tribunal issued Procedural Orders No. 31 and 32. In Procedural Order No. 31, the Tribunal ordered that the Parties' outside counsel and their law firms refrain from making any public statement that might aggravate the Parties' dispute. In Procedural Order No. 32, as already indicated above, the Tribunal appointed Ms Jessica Wells as an additional Secretary to the Tribunal in these arbitration proceedings.
1.25.
On 27 March 2015, the Tribunal issued Procedural Order No. 33. The Tribunal there indicated its wish to request Dr Zambrano to attend the Track II Hearing as a factual witness. It circulated a draft letter to Dr Zambrano for the Parties' comments. The Tribunal's letter to Dr Zambrano was sent to him on 1 April 2015.
1.26.
Earlier, on 12 May 2014, by Procedural Order No 26 and upon the terms there set out, the Tribunal appointed Ms Kathryn Owen as the Tribunal's forensic expert under the Arbitration Agreement (namely, Article 27(1) of the UNCITRAL Arbitration Rules). On 30 March 2015, the Tribunal issued Procedural Order No. 34 whereby it renewed the appointment of Ms Kathryn Owen as an expert to the Tribunal.
1.27.
On 7 April 2015, the Tribunal held a procedural meeting with the Parties (by telephone conference-call) to prepare for the Track II Hearing and also to address the Parties' several outstanding procedural applications. On 9 April 2015, the Tribunal issued Procedural Order No. 35. It there decided certain procedural and logistical matters relating to the Track II Hearing.
1.28.
On 14 April 2015 and again on 16 April 2015, the Claimants requested "an immediate order dissolving the confidentiality provisions of Procedural Orders No. 26 and 29 so that Claimants would be free to disclose publicly the evidence found on [Judge Zambrano's Computers' hard drives] and Mr Lynch's expert analysis of that evidence", in response to the "[public] leaking [of] a copy of the November 7, 2014 report of Ecuador's forensics expert, J. Christopher Racich." On 18 April 2015, the Tribunal informed the Parties that it could not convene an urgent telephone conference in order to decide the Claimants' application, but requested that the Claimants notify the Tribunal if any application was made to use Mr Racich's expert report in the appellate proceedings then pending before the US Court of Appeals for the Second Circuit in the RICO Litigation.
1.29.
On 16 April 2015, the Claimants informed the Tribunal of the Parties' agreement on all aspects of the Site Visit Protocol, except for the presence of an audio/video team to be brought by each Party. On 17 April 2015, the Respondent submitted its comments on the presence of an audio/video team during the Site Visit. In the event, material parts of the Tribunal's Site Visit were filmed; and the sole copy of that confidential film was lodged with the PCA for safe-keeping (where it remains as at the date of this Award).
1.30.
Between 21 April 2015 and 8 May 2015, the Track II Hearing took place in Washington, DC, USA (the "Track II Hearing"). It is described separately below.
1.31.
At the Track II Hearing, on 5 May 2015, the Tribunal circulated its Draft Procedural Order No. 36 together with the draft Site Visit Protocol. Procedural Order No. 36, formalising the Site Visit Protocol, was issued on 7 May 2015, as executed by the Parties, the Tribunal, and the Secretary-General of the PCA. Also during the Track II Hearing, on 8 May 2015, the Tribunal issued Procedural Order No. 37. It there rescinded the confidentiality clauses of Procedural Orders No. 26 and 29, save in respect of the images of Judge Zambrano's computer hard drives that were obtained by the Parties pursuant to Procedural Order No. 26.
1.32.
On 4 to 10 June 2015, the Tribunal's Site Visit (accompanied by the Parties) took place in the Sucumbíos and Orellana Provinces of the Oriente in Ecuador. It is described separately below.
1.33.
On 18 June 2015, the Tribunal issued Procedural Order No. 38, an "Omnibus Order". The Tribunal there decided a number of procedural applications made by the Parties.
1.34.
On 24 November 2015, the Tribunal issued Procedural Order No. 39. It there (i) addressed an application for interim measures made by the Respondent regarding USTR and US trade preference benefits; (ii) requested the Claimants to confirm the terms of the relief sought for Track I; and, as already indicated above, (iii) extended the appointment of Ms Kathryn Owen as an expert to the Tribunal in accordance with the Revised Terms of Reference therein contained (subject to further comments from the Parties). On 14 December 2015, the Tribunal issued Procedural Order No. 40. It there confirmed the Revised Terms of Reference for the extension of the appointment of Ms Owen as an expert to the Tribunal under the Arbitration Agreement.
1.35.
On 5 February 2016, Ms Owen's Final Report was sent to the Parties ("Ms Owen's Final Report").
1.36.
On 29 February 2016, the Tribunal issued Procedural Order No. 41. The Tribunal there invited the Parties' comments upon Ms Owen's Final Report. In Procedural Order No. 42, issued on 16 March 2016, the Tribunal approved and agreed to send to Ms Owen part of the documentation submitted by the Parties in response to Procedural Order No. 41.
1.37.
Ms Owen's Revised Final Report was sent to the Parties on 3 June 2016 ("Ms Owen's Revised Final Report"). In Procedural Order No. 43 dated 8 June 2016, the Tribunal enquired whether the Parties requested that an oral hearing be held for the Parties to question Ms Owen and make submissions on her report under the Arbitration Agreement (namely, Article 27(4) of the UNCITRAL Arbitration Rules). By letters dated 10 June and 17 June 2016, the Claimants and the Respondent respectively stated that they did not request any hearing on Ms Owen's report under the Arbitration Agreement.
1.38.
On 18 June 2016, the Respondent requested that additional materials be admitted to the evidential record under Section 4 of Procedural Order No. 41. The Claimants consented to the Respondent's request on 27 June 2016. These materials were duly admitted.
1.39.
On 2 July 2016, the Tribunal issued Procedural Order No. 44. The Tribunal there recorded the agreement reached by the Parties on a number of procedural issues (as outlined in the Claimants' letter of 27 June 2016). It also ordered that the Parties make two rounds of simultaneous submissions on the significance of Ms Owen's Revised Final Report and Ms Owen's responses to the Parties' questions. The Parties did so on 12 August and 26 August 2016, respectively.
1.40.
On 10 August 2016, the Claimants provided the Tribunal with a copy of the judgment dated 9 August 2016 of the Second Circuit in the RICO Litigation (the "Judgment of the Second Circuit"). On 16 August 2016, the Respondent submitted its comments on the Judgment of the Second Circuit. On 18 August 2016, the Claimants submitted further comments on the Judgment of the Second Circuit. On 29 August 2016, the Tribunal issued Procedural Order No. 45. The Tribunal there admitted the Judgment of the Second Circuit into the evidential record. It also noted that there could be no issue estoppel or res judicata applicable to the arbitration proceedings arising from the RICO Litigation, inter alia, for want of sufficient privity under international law between the Parties; and that the Parties had agreed that evidence adduced before the US Courts in the RICO Litigation, as filed in this arbitration with the Tribunal's approval, was to be treated as evidence adduced in this arbitration.
1.41.
At the same time, the Tribunal requested that the Parties submit a copy of an amicus brief submitted by Ecuador to the Second Circuit in the RICO Litigation (the "RICO Amicus Brief"). The Claimants provided this RICO Amicus Brief on 30 August 2016.
1.42.
On 31 August 2016, the Respondent submitted certain comments in relation to the RICO Amicus Brief and Procedural Order No. 45, noting "that the Tribunal has admitted evidence from those [USA] proceedings as it was submitted by the parties in their respective briefs and memorials"; and that certain FTP materials (exceeding 18.3 GB) proffered by the Claimants on 23 December 2013 had not been admitted by the Tribunal with its approval into the arbitration's evidential record.
1.43.
On 19 September 2016, the Tribunal issued Procedural Order No. 46, whereby (inter alia) the Tribunal decided not to hold an oral hearing to question Ms Owen in connection with her Revised Final Report under the Arbitration Agreement. It also Part I – Page 10 confirmed the Respondent's understanding regarding the Claimants' FTP materials, as expressed in the Respondent's letter dated 31 August 2016.
1.44.
On 26 June 2017, the Claimants informed the Tribunal that the US Supreme Court had issued a decision in the RICO Litigation (the "Supreme Court's Decision"). On 27 June 2017, the Tribunal requested a copy of the Supreme Court's Decision, which the Claimants provided on 29 June 2017.
1.45.
On 12 July 2017, the Respondent requested that the Tribunal terminate the orders made in its First, Second and Fourth Interim Awards. On 19 July 2017, the Claimants requested that these orders remain in force. On 21 July 2017, the Tribunal requested that the Parties respond to a series of queries by the Tribunal in connection with their respective applications regarding these Awards. It also requested a copy of the judgment of The Hague Court of Appeal of 18 July 2017, denying the Respondent's appeal seeking to set aside the Tribunal's Awards (the "Judgment of The Hague Court of Appeal"). On 25 July 2017, the Claimants provided a copy of the Judgment of The Hague Court of Appeal. On 1 August 2017, the Parties provided their respective written responses to the Tribunal's queries of 21 July 2017. On 31 October 2017, the Tribunal issued Procedural Order No. 47, whereby it dismissed the Respondent's application of 12 July 2017 and confirmed that its First, Second and Fourth Interim Awards remained in full force and effect.
1.46.
On 5 February 2018, the Tribunal requested that the Parties provide it with certain additional information regarding the status of the related legal proceedings and identify which parts of their respective prayers for relief from the outset of the arbitration remained extant for Track II and Track III. The Tribunal otherwise advised the Parties that it was approaching the end of its deliberations and intended formally to "close the hearings" under Article 29 of the UNCITRAL Rules as regards all issues to be addressed in its award under Track II. On 19 March and 20 April 2018 the Parties provided their respective comments to the Tribunal's letter of 5 February 2018. On 23 April 2018, the Claimants requested the Tribunal's permission to respond to the Respondent's letter of 20 April 2018, which the Tribunal denied on 25 April 2018. On 30 April 2018, the Tribunal issued Procedural Order No. 48, whereby it declared the record closed under Article 29 of the UNCITRAL Rules as regards all issues to be addressed by the Tribunal in its Track II award.
1.47.
Written Pleadings: Pursuant to the Tribunal's procedural orders, the Parties submitted the following written pleadings during or relevant to Track II (in addition to other written pleadings under Track I, Ib and III):

(i) The Claimants' Notice of Arbitration, dated 23 September 2009 ("C-NoA Sept. 2009");

(ii) The Claimants' Request for Interim Measures, dated 1 April 2010 ("C-IM Apr. 2010");

(iii) The Respondent's Response to Claimants' Request for Interim Measures dated 3 May 2010 ("R-IM May 2010");

(iv) The Respondent's Summary Description of its Preliminary Jurisdictional and Admissibility Objections dated 3 May 2010 ("R-Jur. May 2010");

(v) The Claimants' Reply in Support of Interim Measures dated 7 May 2010 ("C-IM May 2010");

(vi) The Respondent's Memorial on Jurisdictional Objections dated 26 July 2010 ("R-Jur. July 2010");

(vii) The Claimants' Counter-Memorial on Jurisdiction dated 6 September 2010 ("C-Jur. Sept. 2010");

(viii) The Respondent's Reply Memorial on Jurisdictional Objections dated 6 October 2010 ("R-Jur. Oct. 2010");

(ix) The Claimants' Memorial on the Merits dated 6 September 2010 (as amended on 23 September 2010) ("C-Mer. Sept. 2010");

(x) The Claimants' Rejoinder on Jurisdiction dated 6 November 2010 ("C-Jur. Nov. 2010");

(xi) The Respondent's Track 1 Counter-Memorial on the Merits dated 3 July 2012 ("R-TI July 2012");

(xii) The Claimants' Supplemental Memorial on the Merits dated 20 March 2012 ("C-Mer. Mar. 2012");

(xiii) The Claimants' Reply Memorial on the Merits Track 1 dated 29 August 2012 ("C-TI Aug. 2012");

(xiv) The Respondent's Track 1 Rejoinder on the Merits dated 26 October 2012 ("R-TI Oct. 2012");

(xv) The Claimants' document submitted at the Track 1 Hearing in November 2012, claiming their prayer for relief ("C-TI Nov. 2012");

(xvi) The Respondent's Track 2 Counter-Memorial on the Merits dated 18 February 2013 ("R-TII Feb. 2013");

(xvii) The Respondent's letter to the Tribunal on "Show Cause" and "Reconsideration" dated 15 April 2013 ("R-Show Cause Apr. 2013");

(xviii) The Claimants' Initial Pleading on "Show Cause" and "Reconsideration" dated 6 May 2013 ("C-Show Cause May 2013");

(xix) The Respondent's Request for Enforcement of Interim Measures dated 3 June 2013 ("R-IM June 2013");

(xx) The Claimants' Reply Memorial–Track II dated 5 June 2013 (as amended on 12 June 2013) ("C-TII June 2013");

(xxi) The Claimants' Response to Respondent's Request for Enforcement of Interim Measures dated 17 June 2013 ("C-IM June 2013");

(xxii) The Respondent's Reply in Support of its Request for Enforcement of Interim Measures dated 17 July 2013 ("R-IM July 2013");

(xxiii) The Respondent's Reply on "Show Cause" and "Reconsideration" dated 19 July 2013 ("R-Show Cause July 2013");

(xxiv) The Claimants' Response to Respondent's Reply in Support of its Request for Enforcement of Interim Measures dated 8 August 2013 ("C-IM Aug. 2013");

(xxv) The Claimants' Rejoinder on "Show Cause" and "Reconsideration" dated 30 August 2013 ("C-Show Cause Aug. 2013");

(xxvi) The Respondent's Track 2 Rejoinder on the Merits dated 16 December 2013 ("R-TII Dec. 2013");

(xxvii) The Claimants' Supplemental Memorial on Track 1 dated 31 January 2014 ("C-TI Jan. 2014");

(xxviii) The Respondent's Track 1 Supplemental Counter-Memorial on the Merits dated 31 March 2014 ("R-TI Mar. 2014");

(xxix) The Claimants' Supplemental Memorial on Track 2 dated 9 May 2014 ("C-TII SMem. May 2014");

(xxx) The Claimants' Post-Submission Insert to their Supplemental Memorial on Track 2 – Examination of Zambrano Computer Hard Drives dated 15 August 2014 ("C-TII Aug. 2014");

(xxxi) The Respondent's Track 2 Supplemental Counter-Memorial on the Merits dated 7 November 2014 ("R-TII Nov. 2014");

(xxxii) The Claimants' Reply to the Respondent's Supplemental Track 2 Memorial dated 14 January 2015 ("C-TII Jan. 2015");

(xxxiii) The Respondent's Track 2 Supplemental Rejoinder on the Merits dated 17 March 2015 ("R-TII Mar. 2015");

(xxxiv) The Claimants' Post-Track II Hearing Brief on Track I Issues dated 15 July 2015 ("C-TI July 2015");

(xxxv) The Respondent's Track 1B Post-Hearing Memorial dated 15 July 2015 ("R-TI July 2015");

(xxxvi) The Claimants' Submission Concerning Digital Forensic Evidence and the Report of the Tribunal-Appointed Digital Forensics Expert dated 12 August 2016 ("C-TII Aug. 2016");

(xxxvii) The Respondent's Track 2 Supplemental Memorial on the Forensic Evidence of the Republic of Ecuador dated 12 August 2016 ("R-TII Aug. 2016");

(xxxviii) The Claimants' Reply Submission Concerning Digital Forensic Evidence and the Report of the Tribunal-Appointed Digital Forensics Expert dated 26 August 2016 ("C-TII Aug. 2016"); and

(xxxix) The Respondent's Track II Supplemental Reply on the Forensic Evidence of the Republic of Ecuador dated 26 August 2016 ("R-TII Aug. 2016").

1.48.
Whilst the Parties have submitted during these proceedings other written pleadings touching upon issues decided in this Partial Award, the Tribunal considers that their respective claims for relief in Track II can fairly be taken for present purposes from the pleadings listed in Annex 3 to this Part I, save where otherwise indicated below.
1.49.
Written Factual Testimony : In this arbitration, the Claimants submitted the following written factual testimony relevant to Track II:

(i) The witness statement of Rodrigo Pérez Pallares dated 4 September 2010;

(ii) The first witness statement of Ricardo Reis Veiga dated 27 August 2010;

(iii) The witness statement of Frank G. Soler dated 27 August 2012; and

(iv) The second witness statement of Ricardo Reis Veiga dated 28 August 2012.

1.50.
Written Expert Testimony : In this arbitration the Claimants submitted the following written expert testimony relevant to Track II:

(i) The expert report of Robert Wasserstrom dated 28 August 2010;

(ii) The first expert report of Ángel R. Oquendo dated 2 September 2010;

(iii) The first expert report of Vladimiro Álvarez Grau dated 2 September 2010;

(iv) The first expert report of Enrique Barros Bourie dated 3 September 2010;

(v) The second expert report of Enrique Barros Bourie dated 3 September 2010;

(vi) The first expert report of César Coronel Jones dated 3 September 2010;

(vii) The second expert report of César Coronel Jones also dated 3 September 2010;

(viii) The first expert report of David D. Caron dated 3 September 2010;

(ix) The first expert report of Gregory S. Douglas dated 3 September 2010;

(x) The first expert report of Gustavo Romero Ponce dated 3 September 2010;

(xi) The first expert report of John A. Connor dated 3 September 2010;

(xii) The expert report of Brent K. Kaczmarek dated 6 September 2010;

(xiii) The first expert report of Michael L. Younger dated 21 December 2011;

(xiv) The first forensic report of Robert A. Leonard dated 5 January 2012;

(xv) The first expert report of Gerald R. McMenamin dated 20 January 2012;

(xvi) The second expert report of Vladimiro Álvarez Grau dated 10 March 2012; (xvii) The first expert report of Mitchell A. Seligson dated 12 March 2012;

(xviii) The first expert report of Jan Paulsson dated 12 March 2012;

(xix) The second expert report of David D. Caron dated 24 August 2012;

(xx) The third expert report of Enrique Barros Bourie dated 27 August 2012;

(xxi) The expert report of William T. Allen dated 27 August 2012;

(xxii) The second expert report of Gustavo Romero Ponce dated 27 August 2012; (xxiii) The third expert report of César Coronel Jones dated 28 August 2012; (xxiv) The second expert report of Ángel R. Oquendo dated 28 August 2012;

(xxv) The fourth expert report of Enrique Barros Bourie. dated 19 November 2012; (xxvi) The fourth expert report of César Coronel Jones dated 19 November 2012; (xxvii) The first expert report of Weston Anson dated 6 May 2013;

(xxviii) The second expert report of Mitchell A. Seligson dated 23 May 2013;

(xxix) The second forensic report of Robert A. Leonard dated 24 May 2013; (xxx) The expert report of Adam Torres dated 24 May 2013;

(xxxi) The expert report of William D. Bellamy dated 30 May 2013;

(xxxii) The first expert report of Thomas E. McHugh dated 30 May 2013;

(xxxiii) The first expert report of Robert E. Hinchee dated 31 May 2013 (including the exhibited opinions of James I. Ebert and of William D. Di Paolo and Laura B. Hall);

(xxxiv) The first expert report of Suresh H. Moolgavkar dated 31 May 2013;

(xxxv) The expert report of Pedro J.J. Álvarez dated 31 May 2013;

(xxxvi) The expert report of Douglas Southgate dated 31 May 2013;

(xxxvii) The second expert report of Michael L. Younger dated 31 May 2013; (xxxviii) The second expert report of Gregory S. Douglas dated 1 June 2013;

(xxxix) The third expert report of Vladimiro Álvarez Grau dated 3 June 2013;

(xl) The fifth expert report of Enrique Barros Bourie dated 3 June 2013;

(xli) The second expert report of John A. Connor dated 3 June 2013;

(xlii) The fifth expert report of César Coronel Jones dated 3 June 2013;

(xliii) The first forensic report of Patrick Juola dated 3 June 2013;

(xliv) The second expert report of Jan Paulsson dated 3 June 2013;

(xlv) The expert report of Santiago Velázquez Coello dated 3 June 2013;

(xlvi) The first expert report of Jorge Wright-Ycaza dated 3 June 2013;

(xlvii) The second expert report of Weston Anson dated 30 August 2013;

(xlviii) The first forensic report of Spencer Lynch (of Stroz Friedberg) dated 7 October 2013;

(xlix) The third expert report of John A. Connor dated 7 May 2014;

(l) The sixth expert report of César Coronel Jones dated 7 May 2014;

(li) The second expert report of Thomas E. McHugh dated 7 May 2014;

(lii) The second expert report of Robert E. Hinchee dated 9 May 2014;

(liii) The second expert report of Suresh H. Moolgavkar dated 9 May 2014;

(liv) The second forensic report of Patrick Juola dated 12 August 2014;

(lv) The second forensic report of Spencer Lynch (of Stroz Friedberg) dated 15 August 2014;

(lvi) The third expert report of Robert E. Hinchee dated 11 January 2015;

(lvii) The sixth expert report of Enrique Barros Bourie dated 12 January 2015; (lviii) The second expert report of Jorge Wright-Ycaza dated 12 January 2015;

(lix) The seventh expert report of César Coronel Jones dated 13 January 2015;

(lx) The expert report of Juan Carlos Riofrío Martínez-Villalba dated 13 January 2015;

(lxi) The third expert report of Gregory S. Douglas dated 14 January 2015;

(lxii) The fourth expert report of John A. Connor dated 14 January 2015;

(lxiii) The third expert report of Thomas E. McHugh dated 14 January 2015;

(lxiv) The third forensic report of Spencer Lynch (of Stroz Friedberg) dated 14 January 2015; and

(lxv) The third expert report of Suresh H. Moolgavkar dated 14 January 2015.

1.51.
The Respondent submitted the following written factual testimony relevant to Track II:

(i) The witness statement of Norman Alberto Wray dated 10 December 2013;

(ii) The witness statement of Servio Amable Curipoma Sisalima dated 12 December 2013;

(iii) The witness statement of José León Guamán Romero dated 12 December 2013;

(iv) The witness statement of Mercedes Micailina Jaramillo Jiménez dated 13 December 2013; and

(v) The witness statement of Manuel Benjamin Pallares Carrión dated 14 December 2013.

1.52.

The Respondent submitted the following written expert testimony relevant to Track II:

(i) The first expert report of Roberto Salgado Valdez dated 1 October 2010;

(ii) The first expert report of Genaro Eguiguren dated 4 October 2010;

(iii) The second expert report of Genaro Eguiguren dated 2 July 2012;

(iv) The second expert report of Roberto Salgado Valdez dated 2 July 2012;

(v) The first expert report of Gilles Le Chatelier dated 2 July 2012;

(vi) The second expert report of Gilles Le Chatelier dated 25 October 2012;

(vii) The third expert report of Genaro Eguiguren dated 26 October 2012;

(viii) The third expert report of Roberto Salgado Valdez dated 26 October 2012;

(ix) The first expert report of Fabián Andrade Narváez dated 18 February 2013;

(x) The first expert report of Kenneth J. Goldstein and Jeffrey W. Short (of the Louis Berger Group) dated 18 February 2013 (including the annexed opinions of Harlee S. Strauss and Edwin Theriot);

(xi) The first expert report of Philippe Grandjean dated 22 November 2013;

(xii) The first expert report of Jeffrey W. Short dated 11 December 2013;

(xiii) The expert report of Edwin Theriot dated 12 December 2013;

(xiv) The second expert report of Kenneth J. Goldstein and Jeffrey W. Short (of the Louis Berger Group) dated 16 December 2013;

(xv) The expert report of Kenneth A. Kaigler dated 16 December 2013;

(xvi) The first expert report of J. Christopher Racich dated 16 December 2013;

(xvii) The first expert report of Harlee S. Strauss dated 16 December 2013;

(xviii) The expert report of Paul H. Templet dated 16 December 2013;

(xix) The expert report of Jan M. van Dunné dated 27 March 2014;

(xx) The second expert report of Fabián Andrade Narváez dated 7 November 2014;

(xxi) The third expert report of Kenneth J. Goldstein and Edward A. Garvey (of the Louis Berger Group) dated 7 November 2014;

(xxii) The second expert report of Philippe Grandjean dated 7 November 2014;

(xxiii) The first expert report of Blanca Laffon dated 7 November 2014;

(xxiv) The second expert report of J. Christopher Racich dated 7 November 2014;

(xxv) The second expert report of Jeffrey W. Short dated 7 November 2014;

(xxvi) The second expert report of Harlee S. Strauss dated 7 November 2014;

(xxvii) The third expert report of Fabián Andrade Narváez dated 16 March 2015;

(xxviii) The fourth expert report of Kenneth J. Goldstein and Edward A. Garvey (of the Louis Berger Group) dated 16 March 2015;

(xxix) The third expert report of Philippe Grandjean dated 16 March 2015;

(xxx) The second expert report of Blanca Laffon dated 16 March 2015;

(xxxi) The third expert report of J. Christopher Racich dated 16 March 2015;

(xxxii) The third expert report of Jeffrey W. Short dated 16 March 2015; and

(xxxiii) The third expert report of Harlee S. Strauss dated 16 March 2015.

1.53.
The following joint expert reports were submitted to the Tribunal:

(i) The joint expert report of Enrique Barros Bourie, César Coronel Jones and Roberto Salgado dated 6 August 2012;

(ii) The joint expert report of Enrique Barros Bourie, César Coronel Jones, Genaro Eguiguren, Ángel R. Oquendo and Gustavo Romero dated 7 August 2012; and

(iii) The joint expert report of Gilles Le Chatelier and Ángel R. Oquendo dated 7 August 2012.

1.54.
Throughout this Award, these witness statements or expert reports are referred to in abbreviated form by the witness or expert's last name and the number of the relevant statement or report, as follows: "Reis Veiga WS 1" signifies the first witness statement of Ricardo Reis Veiga dated 27 August 2010 and "Leonard ER 1" signifies the first forensic report of Robert A. Leonard dated 5 January 2012.
1.55.
The Tribunal's Expert : As already indicated above, by its Procedural Order No. 26 dated 12 May 2014 under the Arbitration Agreement made by consent of the Parties, the Tribunal appointed Ms Owen as the Tribunal's forensic expert for the purpose of undertaking the imaging and safe-keeping of Judge Zambrano's hard drives in Ecuador, with the Parties' respective forensic experts present during this exercise. As also already indicated, Ms Owen's mandate was renewed and expanded pursuant to Procedural Order No. 34 dated 30 March 2015 and Procedural Order No. 40 dated 14 December 2015. Ms Owen submitted her Revised Final Report on 3 June 2016.
1.56.
The Track II Hearing : Issues under Track II were addressed by the Parties at the oral hearing at the World Bank, in Washington DC, USA held from 21 April 2015 to 8 May 2015, with the assistance of English and Spanish interpreters and recorded in the form of both English and Spanish transcripts (the "Track II Hearing"). The references below are made to the English version of the transcript, as follows: "D1.10" signifies the first day, at page 10. As regards witness examinations, "x" signifies direct examination, "xx" signifies cross-examination, "xxx" signifies re-direct examination and "QT" signifies questions from the Tribunal.
1.57.
The Claimants and the Respondent were represented respectively at the Track II Hearing by those persons listed in the verbatim transcript; and it serves no purpose here listing these persons by name, save as follows.
1.58.
For the Claimants, opening oral submissions were made by the First Claimant's General Counsel Mr Hewitt Pate [D1.10], Professor Paulsson [D1.13; D1,141], Doak Bishop Esq [D1.24], Wade Coriell Esq [D1.94] and Tracie Renfroe Esq [D1,119].
1.59.
For the Respondent, opening oral submissions were made by the Respondent's Procurador General Diego García Carrión [D1,172], Eric W. Bloom Esq [D1,177; D1,241; D1,295], Professor Silva Romero [D1,184], Dra Blanca Gómez de la Torre [D1,197], Professor Mayer [D1,206], Ricardo Ugarte Esq [D1,223], Tomás Leonard Esq [D1,242], Gregory Ewing Esq [D1,271; D1,306], Nicole Silver Esq [D1,286] and Eric Goldstein Esq [D1,319].
1.60.
For the Claimants, closing oral submissions were made by Doak Bishop Esq [D12.2506; D12.2634; D12.2680], Tracie Renfroe Esq [D12.2516; D12.2607], Wade Coriell Esq [D12.2525], David Weiss Esq [D12.2559], Professor Paulsson [D12.2570; D12.2735], Part I – Page 19 Caline Mouawad Esq [D12.2651], Elizabeth Silbert Esq [D12.2668], Edward G. Kehoe Esq [D12.2708] and Mr Hewitt Pate [D12.2753].
1.61.
For the Respondent, closing oral submissions were made by the Respondent's Procurador General Diego García Carríon [D13.2786], Eric W. Bloom Esq [D13.2792, D13.2829], Eric Goldstein Esq [D13.2804, D13.2851], Gregory Ewing Esq [D13.2808, D13.2882, D13.2906], Nassim Hooshmandnia Esq [D13.2819], Nicole Silver Esq [D13.2896], Tomás Leonard Esq [D13.2911; D13.3022], Professor Silva Romero [D13.2942], Professor Mayer [D13.2965], Dra Blanca Gómez de la Torre [D13.2978], Ricardo Ugarte Esq [D13.2983], Mark Bravin Esq [D13.3011], Ms Daniela Palacios [D13.3025], Ms Maria Teresa Borja [D13.3028] and Mr Luis Felipe Aguilar [D13.3031].
1.62.
The Claimants tendered eight oral witnesses at the Track II Hearing who were all crossexamined by the Respondent: (i) Robert A. Leonard [D2,381x & 401xx]; (ii) Patrick Juola [D2,455x, 483xx & 580xxx]; (iii) Alberto Guerra Bastidas [D3,598x, 604xx, D4,769xx, 859xxx, 890QT & 898xxx]; (iv) Spencer Lynch [D5,936x, 965xx & 1126xxx]; (v) John A. Connor [D6.1288x, 1328xx, D7.1471xx & 1571xxx]; (vi) Gregory S. Douglas [D7.1606x, 1641xx, D8.1702xx & 1759xxx]; (vii) Thomas McHugh [D8.1778x, 1804xx, 1850xxx & 1861QT]; and (viii) Robert E. Hinchee [D9.1879x, 1904xx & 2002xxx].
1.63.
The Respondent tendered five oral witnesses at the Track II Hearing who were all crossexamined by the Claimants: (i) J Christopher Racich [D5.1139x, 1158xx, D6.1216xx & 1270xxx]; (ii) Harlee Strauss [D9.2009x, 2035xx, 2107xxx & 2110QT]; (iii-iv) Edward A. Garvey and Kenneth J. Goldstein [D10.2135x, 2166xx, 2265xxx & 2272QT]; and (v) Fabián Andrade Narváez [D10.2286x, 2312xx, D11.2359xx, 2409xxx, 2439QT, 2450xxx & 2453xx].
1.64.
The Site Visit : By Procedural Order No. 36 dated 7 May 2016, the Tribunal, the Parties and the Secretary-General of the PCA executed the Site Visit Protocol for the Tribunal's visit to four sites in Ecuador. The Site Visit included four sites within the area of the former Concession: (i) Shushufindi-34 (on 7 June 2015), (ii) Aguarico-06 (on 8 June 2015), (iii) Shushufindi-55 (also on 8 June 2015) and (iv) Lago Agrio-02 (on 9 June 2015). During the Site Visit, the Parties' legal representatives and experts addressed the Part I – Page 20 participants at each of these four sites, as recorded in the English verbatim transcript. The references below are made to this transcript, as follows: "S1.10" signifies the first site, at page 10 of the transcript.
1.65.
For the Claimants, the Site Addresses were made by Doak Bishop Esq [S1.37], Tracie Renfroe Esq [S1.40, S1.73, S4,328, S4,364], Mr John Connor [S1.48, S2,165, S3,249, S3,260, S4,340], Dr Thomas E. McHugh [S1.65, S2,157, S2,184, S3,264, S4,339], Carol Wood Esq [S2,151, S2,159, S2,187, S4,358] and Jamie M. Miller Esq. [S3,242, S3,259, S3,263, S3,267].
1.66.
For the Respondent, the Site Addresses were made by Procurador General Diego García Carrión [S1.6], Gregory L. Ewing Esq [S1.9, S1.78, S1.91, S2,107, S2,133, S2,191, S2,202, S3,213, S3,271, S3,278, S4,292, S4,319, S4,323, S4,378], Dr Edward A. Garvey [S1.18, S1.85, S2,120, S2,195, S2,203, S3,227, S3,274, S3,284, S4,301, S4,322, S4,375] and Eric W. Bloom Esq [S4,384].
1.67.
Track II Procedural Orders: The Tribunal has issued 38 orders relevant to Track II: PO Nos 10-11, 16, 18-23 and 25 to 50 as listed in Annex II to this Part I and marked "*".
1.68.
Enforcement: From May 2012 onwards, the Lago Agrio Plaintiffs sought to enforce and execute the Lago Agrio Judgment in (i) Ecuador, (ii) Canada, (iii) Brazil and (iv) Argentina against Chevron, TexPet and certain of Chevron's associated companies. A summary of these enforcement proceedings is provided in Annex 4 to Part I of this Award.

E: The Parties' Respective Claims for Relief

1.69.
In their several written submissions relevant to Track II (including submissions in Track I, Ib and III), the Parties pleaded their respective formal prayers, as set below out in Annex 3 to this Part I, as clarified by their respective letters dated 19 March and 20 April 2018.

F: "Closing the Record"

1.70.
By letter dated 5 March 2018 and its Procedural Order No. 48 dated 30 April 2018, the Tribunal 'closed' the record of this arbitration as regards the issues under Track II that were to be decided in this Award.
1.71.
On 27 June 2018, the Respondent's Constitutional Court issued its Judgment,2 dismissing Chevron's extraordinary action for protection against the Lago Agrio Judgment (2011),3 as also decided by the Lago Agrio Appellate Court's Judgment (2012)4 and the Cassation (National) Court's Judgment (2013).5 By its Procedural Order No. 49 of 12 July 2018, the Tribunal admitted into the record of this arbitration the Constitutional Court's Judgment (in its orginal Spanish version, followed by the Parties' agreed English translation). At the Tribunal's request, confirmed by the Tribunal's Agreed Procedural Order of 19 July 2018, the Parties made their respective written submissions on the Constitutional Court's Judgment by letters dated 25 July 2018. Subsequently, prior to the issue of this Award, the Tribunal re-closed the record of this arbitration as regards the issues under Track II that are decided in this Award, by Procedural Order No. 50 and letter dated 13 August 2018.

PART II - THE PRINCIPAL ISSUES

A: Introduction

2.1.
The several claims made by the Claimants and the several responses made by the Respondent in this arbitration are recorded in their respective pleaded requests for relief. These pleadings are fully set out in Annex 3 to Part I of this Award, above. As there formulated, these comprise a range of specific requests, reflecting the particular facts of the Parties' dispute arising from the Lago Agrio Litigation and the Judgments of the Lago Agrio Court, the Lago Agrio Appellate Court, the Cassation (National) Court and the Constitutional Court of the Respondent.
2.2.
These facts were first pleaded in the Claimants' Notice of Arbitration of 23 September 2009 and disputed by the Respondent's initial pleading of 3 May 2010, during the pendency of the Lago Agrio Litigation (begun in 2003) but before the Judgments of the Lago Agrio Court (2011), the Lago Agrio Appellate Court (2012), the Cassation Court (2013) and the Constitutional Court (2018). As the Parties' dispute continued and deepened from 2009 onwards, after the commencement of this arbitration, the Parties' respective pleadings have correspondingly developed to take account of these new and other events, up to 25 July 2018.
2.3.
These disputed facts and requests are, however, all focused on the overall dispute that lay and continues to lie at the heart of this case between the Claimants and the Respondent.
2.4.
In brief, the Claimants assert that TexPet (with Texaco) made an investment in the form of an oil concession in the Oriente, Ecuador (beginning in 1964); that this investment was subsequently acquired by Chevron when it "merged" with Texaco and acquired TexPet, as Texaco's subsidiary (in 2001); that the Respondent agreed (in 1995-1998) on the extent of the responsibility of TexPet, Texaco and subsequently Chevron for clean-up operations and on the extent of their residual liability for environmental harm in the concession area; that, in breach of that agreement, the Respondent facilitated legal proceedings by the Lago Agrio Plaintiffs in the form of the Lago Agrio Litigation Part II – Page 1 against Chevron; that such proceedings were subject to procedural fraud and judicial misconduct by judges of the Lago Agrio Court; that the Lago Agrio Judgment was 'ghostwritten' by representatives of the Lago Agrio Plaintiffs in corrupt collusion with the presiding judge of the Lago Agrio Court; that the Lago Agrio Appellate Court, the Cassation Court and the Constitutional Court left such fraud, misconduct and corruption unremedied; that the Lago Agrio Appellate Court rendered enforceable the Lago Agrio Judgment, within and without Ecuador (in 2012); and that the Respondent (by its judicial branch, aided and abetted by its executive branch) failed to provide to both Chevron and TexPet the legal protections to which they were entitled in the Lago Agrio Litigation.
2.5.
The Claimants (as USA nationals) contend that these facts disclose multiple breaches by the Respondent of their rights under the Treaty (including customary international law); that many of these breaches have a continuing character that was renewed, repeated and maintained in successive factual developments; and that these international wrongs have caused and are still causing injuries to each of them; and that the Claimants (particularly Chevron) became and remain exposed to potentially disastrous legal proceedings for the enforcement of the corrupt Lago Agrio Judgment in multiple jurisdictions, not limited to Ecuador or the USA.
2.6.
The Claimants contend that these breaches of the Treaty are rooted in: (i) the failure of the Respondent to give effect to the agreements made by the Respondent concerning the responsibility and residual liability for environmental damage (collectively, the "1995 Settlement Agreement"); (ii) the issuing, rendering enforceable and maintaining the enforceability of the Lago Agrio Judgment (as varied by the Cassation Court); and (iii) the failure of the Respondent to take effective steps to address and remedy the procedural fraud, judicial misconduct and 'ghostwriting' of the Lago Agrio Judgment.
2.7.
The Claimants assert that this Tribunal has jurisdiction under the Treaty to decide their claims; and, also, that their claims are admissible in this arbitration under the Treaty.
2.8.
In brief, the Respondent denies: (i) that Chevron has, or has had, any investment in Ecuador relevant to the Treaty; (ii) that this Tribunal has any jurisdiction to address the Claimants' claims under the Treaty; (iii) that the Claimants' claims are admissible in Part II – Page 2 this arbitration under the Treaty; and (iv) that the Claimants' cases, on their merits, entitle either of them to any of the relief which they claim in this arbitration.
2.9.
In this arbitration, the procedural fraud, judicial misconduct and corruption in the Lago Agrio Litigation and the Lago Agrio Judgment (as alleged by the Claimants and denied by the Respondent), taken together, were commonly referred to by the Parties as a 'denial of justice'. The Tribunal is content to adopt that usage. In doing so, however, the Tribunal draws attention to the fact that its mandate in this arbitration is focused on the question of alleged breaches of the Treaty (including customary international law). The Treaty does not make express provision for denial of justice.
2.10.
The principal issues to be addressed by the Tribunal in this Award, under Track II of this arbitration, are whether the Tribunal has any jurisdiction over Chevron's claims under the Treaty; (if so) whether such claims are admissible under the Treaty; if so, whether any alleged conduct attributable to the Respondent amounts to a violation of the Treaty (including customary international law); if and to the extent that these questions are answered affirmatively, to what forms of relief are Chevron and TexPet entitled under the Treaty (including customary international law); and, in any event, to what forms of relief is the Respondent entitled under the Treaty (including, again, customary international law).
2.11.
These principal issues subsume a mass of lesser factual, expert, forensic and legal issues. For the purpose of this Award, the Tribunal has addressed these issues in the several Parts that follow. For ease of reference, the subject-matters of these different Parts are described below.
2.12.
The Tribunal does not here revisit its determinations made in its earlier awards, orders and decision. This Award is limited to issues arising in Track II of this Arbitration, as identified by the Parties up to 25 July 2018. Thus, this Award does not address issues already decided in Tracks 1 and 1B or still to be addressed in Track III of this arbitration. Moreover, the Tribunal has not thought it necessary to decide all the issues listed for Track II by the Parties.

B: The Principal Legal and Other Texts – Part III

2.13.
For ease of later reference in this Award, Part III of this Award sets out, verbatim, relevant texts from the Treaty, the UNCITRAL Arbitration Rules (forming part of the Parties' Arbitration Agreement derived from the Treaty), the 1995-1998 Settlement and Release Agreements, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the ILC Articles on State Responsibility, the 1985 UN Basic Principles on the Independence of the Judiciary, the 1998 Ecuadorian Constitution, the Ecuadorian Civil Code, the Ecuadorian Environmental Management Act 1999 and the Ecuadorian Collusion Prosecution Act.
2.14.
The full text of the Treaty (in English and Spanish) is appended to Part I, as Annex 5.

C: The Facts and Other Matters – Parts IV and V

2.15.
Part IV of this Award sets out the facts and other matters, including the non-computer expert evidence, relevant to the Tribunal's decisions in this Award. Part IV also contains an annotated chronology of these evidential materials from 1964 to 2018, as found by the Tribunal.
2.16.
Annex 6 to Part IV contains a map of Ecuador, showing the Oriente and the area of the oil concession granted by the Respondent to (inter alios) TexPet.
2.17.
In Part V of this Award, the Tribunal addresses the Judgments of the Lago Agrio Court, the Lago Agrio Appellate Court, the Cassation Court and the Constitutional Court.
2.18.
Annex 7 to Part V contains an extract from the Lago Agrio Judgment, addressing the "merger" between Texaco and Chevron in 2001. Annex 8 to Part V reproduces exhibits from the expert evidence relating to the 'ghostwriting' of the Lago Agrio Judgment. Annex 9 to Part V reproduces a marked-up version of part of the Lago Agrio Judgment from the expert evidence relating to the 'ghostwriting' of the Lago Agrio Judgment.
2.19.
The Tribunal summarises its Conclusions regarding these evidential materials, as found in Parts IV and V (including the four Judgments), at the end of Part V.

D: Forensic (Computer) Evidence — Part VI

2.20.
In Part VI of this Award, the Tribunal addresses the expert evidence addressed by the Parties' forensic computer expert witnesses (with the Tribunal's forensic computer expert).
2.21.
The Tribunal summarises its Conclusions regarding this forensic expert evidence at the end of Part VI.

E: Jurisdiction and Admissibility – Part VII

2.22.
In Part VII of this Award, the Tribunal addresses the issues of jurisdiction and admissibility arising from the Parties' respective pleadings.
2.23.
The Tribunal summarises its Conclusions regarding jurisdiction and admissibility at the end of Part VII.

F: Merits – Part VIII

2.24.
In Part VIII of this Award, the Tribunal addresses the merits of the Claimants' claims and the Respondent's defences.
2.25.
The Tribunal summarises its Conclusions regarding these merits at the end of Part VIII. G: Forms of Relief – Part IX
2.26.
In Part IX of this Award, the Tribunal addresses (seriatim) the forms of relief requested by the Claimants and the Respondent in Track II of this arbitration, together with certain miscellaneous matters.

H: The Operative Part – Part X

2.27.
In Part X, the Tribunal sets out the Operative Part of this Award, derived from the Parties' requests for relief in Track II of this arbitration and consequential upon the Tribunal's earlier decisions in this and previous Awards, Orders and Decision.

PART III - PRINCIPAL LEGAL AND OTHER TEXTS

A: Introduction

3.1.
For ease of reference later, it is here appropriate to cite in full the principal legal and other texts to which the Tribunal refers later in this Award; namely extracts from the Treaty, the UNCITRAL Arbitration Rules, the 1995-1998 Settlement and Release Agreements, the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, the ILC Articles on State Responsibility, the 1985 UN Basic Principles on the Independence of the Judiciary, the 1998 Ecuadorian Constitution, the Ecuadorian Civil Code, the Ecuadorian Environmental Management Act 1999 and the Ecuadorian Collusion Prosecution Act.

B: The Treaty

3.3.
Preamble: The Treaty's Preamble provides as follows:

"The United States of America and the Republic of Ecuador (hereinafter the "Parties");

Desiring to promote greater economic cooperation between them, with respect to investment by nationals and companies of one Party in the territory of the other Party;

Recognizing that agreement upon the treatment to be accorded such investment will stimulate the flow of private capital and the economic development of the Parties;

Agreeing that fair and equitable treatment of investment is desirable in order to maintain a stable framework for investment and maximum effective utilization of economic resources;

Recognizing that the development of economic and business ties can contribute to the wellbeing of workers in both Parties and promote respect for internationally recognized worker rights; and

Having resolved to conclude a Treaty concerning the encouragement and reciprocal protection of investment;

Have agreed as follows:..."

3.4.
Article I(1): Article I(1) of the Treaty provides, in material part, as follows:

"For the purposes of this Treaty,

(a) "investment" means every kind of investment in the territory of one Party owned or controlled directly or indirectly by nationals or companies of the other Party, such as equity, debt, and service and investment contracts; and includes:

(i) tangible and intangible property, including rights, such as mortgages, liens and pledges;

(ii) a company or shares of stock or other interests in a company or interests in the assets thereof;

(iii) a claim to money or a claim to performance having economic value, and associated with an investment;

(iv) intellectual property which includes, inter alia, rights relating to:... and

(v) any right conferred by law or contract, and any licences and permits pursuant to law;

(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;..."

3.5.
Article 1(3): Article I(3) of the Treaty provides as follows:

"Any alteration of the form in which assets are invested or reinvested shall not affect their character as investment."

3.6.
Article II(3): Article II(3) of the Treaty provides as follows:

"(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.

(b) Neither Party shall in any way impair by arbitrary or discriminatory measures the management, operation, maintenance, use, enjoyment, acquisition, expansion, or disposal of investments. 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.

(c) Each Party shall observe any obligation it may have entered into with regard to investments."

3.7.
Article II(7) : Article II(7) of the Treaty provides as follows:

"7. Each Party shall provide effective means of asserting claims and enforcing rights with respect to investment, investment agreements, and investment authorizations."

3.8.
Article VI : Article VI of the Treaty provides, in material part, as follows:

"1. For purposes of this Article, an investment dispute is a dispute between a Party and a national or company of the other Party arising out of or relating to (a) an investment agreement between that Party and such national or company; (b) an investment authorization granted by that Party's foreign investment authority to such national or company; or (c) an alleged breach of any right conferred or created by this Treaty with respect to an investment.

2. In the event of an investment dispute, the parties to the dispute should initially seek a resolution through consultation and negotiation. 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:

(a) to the courts or administrative tribunals of the Party that is a party to the dispute; or

(b) in accordance with any applicable, previously agreed disputesettlement procedures; or

(c) in accordance with the terms of paragraph 3.

3. (a) Provided that the national or company concerned has not submitted the dispute for resolution under paragraph 2 (a) or (b) and that six months have elapsed from the date on which the dispute arose, the national or company concerned may choose to consent in writing to the submission of the dispute for settlement by binding arbitration: (iii) in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL);...

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. Such consent, together with the written consent of the national or company when given under paragraph 3 shall satisfy the requirement for:.. (b) an "agreement in writing" for purposes of Article II of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958 ("New York Convention")..."

5. Any arbitration under paragraph 3(a) (ii), (iii) or (iv) of this Article shall be held in a state that is a party to the New York Convention.

6. Any arbitral award rendered pursuant to this Article shall be final and binding on the parties to the dispute. Each Party undertakes to carry out without delay the provisions of any such award and to provide in its territory for its enforcement..."

3.9.
Article XI : Article XI of the Treaty provides:

"This Treaty shall apply to the political subdivisions of the Parties."

3.10.
Article XII(1): Article XII(1) of the Treaty provides, in material part, as follows:

"This Treaty... shall apply to investments existing at the time of entry into force as well as to investments made or acquired hereafter."

C: The UNCITRAL Arbitration Rules

3.11.
Article 20: Article 20 of the UNCITRAL Arbitration Rules, "Amendment", provides (inter alia) as follows:

"During the course of the arbitral proceedings either party may amend or supplement his claim or defence unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it or prejudice to the other party or any other circumstance. However, a claim may not be amended in such a manner that the amended claim falls outside the scope of the arbitration clause or separate arbitration agreement."

3.12.
Article 24(1): Article 24(1) of the UNCITRAL Arbitration Rules provides as follows:

"Each party shall have the burden of proving the facts relied on to support his claim or defence."

3.13.
Article 27 : Article 27 of the UNCITRAL Arbitration Rules, "Experts", provides as follows:

"1. The arbitral tribunal may appoint one or more experts to report to it, in writing, on specific issues to be determined by the tribunal. A copy of the expert's terms of reference, established by the arbitral tribunal, shall be communicated to the parties.

2. The parties shall give the expert any relevant information or produce for his inspection any relevant documents or goods that he may require of them. Any dispute between a party and such expert as to the relevance of the required information or production shall be referred to the arbitral tribunal for decision.

3. Upon receipt of the expert's report, the arbitral tribunal shall communicate a copy of the report to the parties who shall be given the opportunity to express, in writing, their opinion on the report. A party shall be entitled to examine any document on which the expert has relied in his report.

4. At the request of either party the expert, after delivery of the report, may be heard at a hearing where the parties shall have the opportunity to be present and to interrogate the expert. At this hearing either party may present expert witnesses in order to testify on the points at issue. The provisions of article 25 shall be applicable to such proceedings."

3.14.
Article 32 : Article 32 of the UNCITRAL Arbitration Rues, "Form and Effect of the Award", provides (inter alia) as follows:

"1. In addition to making a final award, the arbitral tribunal shall be entitled to make interim, interlocutory, or partial awards.

2. The award shall be made in writing and shall be final and binding on the parties. The parties undertake to carry out the award without delay. …

5. The award may be made public only with the consent of both parties. …

7. If the arbitration law of the country where the award is made requires that the award be filed or registered by the arbitral tribunal, the tribunal shall comply with this requirement within the period of time required by law."

D: The 1995-1998 Settlement and Release Agreements

3.15.
The term "1995-1998 Settlement and Release Agreements" as generally used in this Award (save where the context requires otherwise) comprises three sets of contractual documentation: (i) the 1995 Settlement Agreement of 4 May 1995; (ii) the 1996 Municipal and Provincial Releases; and (iii) the 1998 Final Release.1 This documentation was made in Spanish; and the citations below are all English translations.
3.16.
(1) The 1995 Settlement Agreement : On 4 May 1995, the Respondent acting by its Ministry of Energy and Mining ("the Ministry") and PetroEcuador as "one Party" and TexPet as "the other party" initialled and signed a written agreement entitled "Contract for Implementing of Environmental, Remedial Work and Release from Obligations, Liability and Claims".
3.17.
The 1995 Settlement Agreement was made on the Ministry's headed note-paper with the Respondent's coat-of-arms; and it was signed for that Ministry by the Minister of Energy and Mines. It was also signed by a senior officer of PetroEcuador and two representatives of TexPet (now, but not then, indirectly owned by Chevron): Dr Ricardo Reis Veiga and Mr Rodrigo Pérez Pallares.
3.18.
The 1995 Settlement Agreement provided in the final two paragraphs of its preamble that TexPet agreed to undertake the "Environmental Remedial Work in consideration for being released and discharged of all its legal and contractual obligations and liability for Environmental Impact arising out of the Consortium's operations." By Article 1.3, the term "Environmental Impact" included: "[a]ny solid, liquid, or gaseous substance present or released into the environment in such concentration or condition, the presence or release of which causes, or has the potential to cause harm to human health or the environment."
3.19.
As contemplated in the earlier 1994 MOU between the same signatory parties (which was to be substituted and become void by Article 9.6 and the last paragraph of Annex "A" of the 1995 Settlement Agreement), the 1995 Settlement Agreement, subject to its terms: (i) released TexPet from the Respondent's and PetroEcuador's claims based upon Environmental Impact (except for claims related to TexPet's performance of the Scope of Work); and (ii) provided that TexPet would be released from all remaining environmental liability upon completion of the remediation obligations described in that Scope of Work.
3.20.
Article 1.12 of the 1995 Settlement Agreement defined such release, as follows:

"The release, under the provisions of Article V of this Contract, of all legal and contractual obligations and liability, towards the Government and Petroecuador, for the Environmental Impact arising from the Operations of the Consortium, including any claims that the Government and Petroecuador have, or may have against Texpet, arising out of the Consortium Agreements."

3.21.
The term "Operations of the Consortium" was defined as "Those oil exploration and production operations carried out under the Consortium Agreement", i.e. the 1973 Concession Agreement.
3.22.
Article 5.1 of the 1995 Settlement Agreement ("Article V") provides (inter alia), in material part:

"On the execution date of this Contract [i.e. 4 May 1995], and in consideration of Texpet's agreement to perform the Environmental Remedial Work in accordance with the Scope of Work set out in Annex A, and the Remedial Action Plan, the Government and Petroecuador shall hereby release, acquit and forever discharge Texpet, Texaco Petroleum Company, Compañia Texaco de Petróleos del Ecuador, S.A., Texaco Inc., and all their respective agents, servants, employees, officers, directors, legal representatives, insurers, attorneys, indemnitors, guarantors, heirs, administrators, executors, beneficiaries, successors, predecessors, principals and subsidiaries (hereinafter referred to as 'the Releasees') of all the Government's and Petroecuador's claims against the Releasees for Environmental Impact arising from the Operations of the Consortium, except for those related to the obligations contracted hereunder for the performance by Texpet of the Scope of Work (Annex A) …"

3.23.
The Ecuadorian Government's "claims" were addressed in Article 5.2. It provides:

"The Government and Petroecuador intend claims to mean any and all claims, rights to Claims, debts, liens, common or civil law or equitable causes of actions and penalties, whether sounding in contract or tort, constitutional, statutory, or regulatory causes of action and penalties (including, but not limited to, causes of action under Article 19-2 of the Political Constitution of the Republic of Ecuador, Decree No. 1459 of 1971, Decree No. 925 of 1973, the Water Act, R.O. 233 of 1973, ORO No. 530 of 1974, Decree No. 374 of 1976, Decree No. 101 of 1982, or Decree No. 2144 of 1989, or any other applicable law or regulation of the Republic of Ecuador), costs, lawsuits, settlements and attorneys' fees (past, present, future, known or unknown), that the Government or Petroecuador have, or ever may have against each Releasee for or in any way related to contamination, that have or ever may arise in the future, directly or indirectly arising out of Operations of the Consortium, including but not limited to consequences of all types of injury that the Government or Petroecuador may allege concerning persons, properties, business, reputations, and all other types of injuries that may be measured in money, including but not limited to, trespass, nuisance, negligence, strict liability, breach of warranty, or any other theory or potential theory of recovery."

3.24.
The reference in Article 5.2 to Article 19-2 of the Ecuadorian Constitution (being the 1978 Constitution effective in 1979 and, as later amended, in force in 1995) signified a cause of action available to the Respondent under Title II, Section 1 (On the Rights of People/Individuals)2 whereby the Ecuadorian State guaranteed to each person, inter alia (in English translation): "… the right to live in an environment that is free from contamination. It is the duty of the State to ensure that this right is not negatively affected and to foster the preservation of nature …". The reference to Decree No. 374 of 1976 signified a cause of action available to the Respondent on the prevention and control of pollution. The reference to the Water Act of 1973 and Decree No. 2144 of 1989 signified causes of action available to the Respondent in regard to water resources and water contamination. The reference to ORO No 530 signified the Regulations for the Exploration and Exploration of Hydrocarbons of 9 April 1974.
3.25.
(ii) The 1996 Municipal and Provincial Releases : As provided by Annex "A" to the Settlement Agreement, TexPet subsequently settled disputes with the four municipalities of the Oriente Region (Sushufindi, Francisco de Orellana (Coca), Lago Agrio and Loya de los Sachas), under written agreements made with these municipalities, as also the Province of Sucumbíos and the Napo consortium of municipalities (the "1996 Municipal and Provincial Releases").
3.26.
Under these six settlements, four of which were approved by the Ecuadorian Courts owing to their nature as extant litigious disputes, TexPet, together with non-signatory parties, were released from liability to these municipalities for the Consortium's activities in the area of the concession. The 1996 Municipal and Provincial Releases provided (inter alia) for releases in somewhat different terms from Article 5.1 of the Settlement Agreement.
3.27.
(iii) The 1998 Final Release : On 30 September 1998, pursuant to the Settlement Agreement, the Respondent (acting by its Minister of Energy and Mines), PetroEcuador, PetroProduccion and TexPet executed the "Acta Final" (or Final Release), certifying that TexPet had performed all its obligations under the 1995 Settlement Agreement and, in accordance with its terms, releasing TexPet from (as specified) any environmental liability arising from the Consortium's operations.
3.28.
Article IV of the Final Release provided (inter alia) in material part as follows:

" … The Government and PetroEcuador proceed to release, absolve and discharge TexPet, Texas Petroleum Company, Compañia Texaco de Petróleos del Ecuador, S.A., Texaco Inc., and all their respective agents, servants, employees, officers, directors, legal representatives, insurers, attorneys, indemnitors, guarantors, heirs, administrators, executors, beneficiaries, successors, predecessors, principals, subsidiaries forever, from any liability and claims by the Government of the Republic of Ecuador, PetroEcuador and its Affiliates, for items related to the obligations assumed by TexPet in the aforementioned Contract [the 1995 Settlement Agreement] …."

3.29.
The wording of the release in Article IV of the Final Release is materially the same linguistically as the wording Article 5.1 of the Settlement Agreement.

E: The Universal Declaration of Human Rights

3.30.
Article 10 : Article 10 of the Universal Declaration of Human Rights reads as follows:

"Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him."

F: The International Covenant on Civil and Political Rights

3.31.
Article 2 : Article 2 of the International Covenant on Civil and Political Rights provides as follows:

"1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted."

3.32.
Article 14 : Article 14 of the International Covenant on Civil and Political Rights provides, in material part:

"All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."

G: The ILC Articles on State Responsibility

3.33.
Article 16 : Article 16 of the ILC Articles on State Responsibility, "Aid or assistance in the commission of an internationally wrongful act", provides as follows:

"A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) the act would be internationally wrongful if committed by that State."

3.34.
Article 28 : Article 28 of the ILC Articles on State Responsibility, "Legal consequences of an internationally wrongful act", provides as follows:

"The international responsibility of a State which is entailed by an internationally wrongful act in accordance with the provisions of part one involves legal consequences as set out in this part."

3.35.
Article 29 : Article 29 of the ILC Articles on State Responsibility, "Continued duty of performance", provides as follows:

"The legal consequences of an internationally wrongful act under this part do not affect the continued duty of the responsible State to perform the obligation breached."

3.36.
Article 30 : Article 30 of the ILC Articles on State Responsibility, "Cessation and nonrepetition", provides as follows:

"The State responsible for the internationally wrongful act is under an obligation:

(a) to cease that act, if it is continuing;

(b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require."

3.37.
Article 31 : Article 31 of the ILC Articles on State Responsibility, "Reparation", provides as follows:

"1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.

2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State."

3.38.
Article 32 : Article 32 of the ILC Articles on State Responsibility, "Irrelevance of internal law", provides as follows:

"The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations under this part."

3.39.
Article 33 : Article 33 of the ILC Articles on State Responsibility, "Scope of international obligations set out in this part", provides as follows:

"1. The obligations of the responsible State set out in this part may be owed to another State, to several States, or to the international community as a whole, depending in particular on the character and content of the international obligation and on the circumstances of the breach.

2. This part is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State."

3.40.
Article 34 : Article 34 of the ILC Articles on State Responsibility, "Forms of Reparation", provides as follows:

"Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this chapter."

3.41.
Article 35 : Article 35 of the ILC Articles on State Responsibility, "Restitution", provides as follows:

"A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:

(a) is not materially impossible;

(b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation."

3.42.
Article 36 : Article 36 of the ILC Articles on State Responsibility, "Compensation", provides as follows:

"1. The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution.

2. The compensation shall cover any financially assessable damage including loss of profits insofar as it is established."

3.43.
Article 37 : Article 37 of the ILC Articles on State Responsibility, "Satisfaction", provides as follows:

"1. The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation.

2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality.

3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State."

3.44.
Article 38 : Article 38 of the ILC Articles on State Responsibility, "Interest", provides as follows:

"1. Interest on any principal sum due under this chapter shall be payable when necessary in order to ensure full reparation. The interest rate and mode of calculation shall be set so as to achieve that result.

2. Interest runs from the date when the principal sum should have been paid until the date the obligation to pay is fulfilled."

3.45.
Article 39 : Article 39 of the ILC Articles on State Responsibility, "Contribution to the Injury", provides as follows:

"In the determination of reparation, account shall be taken of the contribution to the injury by wilful or negligent action or omission of the injured State or any person or entity in relation to whom reparation is sought."

H: The UN Basic Principles on the Independence of the Judiciary3

3.46.
UN Basic Principles : The Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, provides (inter alia) as follows:

"1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.

5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.

6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.

7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions."

I: The Ecuadorian Constitution

3.47.
Article 19-2: Article 19-2 of the 1998 Ecuadorian Constitution provides:

"Notwithstanding other rights which are necessary for the full moral and material development that is derived from the nature of the person, the State guarantees: … 2. The right to live in an environment free of pollution. It is the duty of the State to ensure that this right is not affected and to promote the preservation of nature. The law shall establish the limitations on the exercising of certain rights and freedoms, to protect the environment;"

(In the original Spanish: "Sin perjuicio de otros derechos necesarios para el pleno desenvolvimiento moral y material que se deriva de la naturaleza de la persona, el Estado le garantiza: (…) 2. El derecho de vivir en un medio ambiente libre de contaminación. Es deber del Estado velar para que este derecho no sea afectado y tutelar la preservación de la naturaleza. La ley establecerá las restricciones al ejercicio de determinados derechos o libertades, para proteger el medio ambiente;").

3.48.
Article 23(15): Article 23(15) of the 1998 Ecuadorian Constitution provides:

"Without prejudice to the rights established in the Constitution and the international instruments currently in force, the State recognizes and guarantees the following to the people: … 15. The right to file complaints and petitions to the authorities, but under no circumstances on behalf of the people, and to receive attention or relevant responses within an appropriate period."

(In the original Spanish: "Sin perjuicio de los derechos establecidos en esta Constitución y en los instrumentos internacionales vigentes, el Estado reconocerá y garantizará a las personas los siguientes : (…) 15. El derecho a dirigir quejas y peticiones a las autoridades, pero en ningún caso en nombre del pueblo; y a recibir la atención o las respuestas pertinentes, en el plazo adecuado.").

3.49.
Article 75: Article 75 of the 2008 Ecuadorian Constitution provides:

"Each individual has the right to free access to justice and effective, impartial and expeditious protection of his rights and interests, subject to the principles of immediacy and celerity. In no case a person shall be left defenseless. Noncompliance with judgments shall be punished by law."

(In the original Spanish: "Toda persona tiene derecho al acceso gratuito a la justicia y a la tutela efectiva, imparcial y expedita de sus derechos e intereses, con sujeción a los principios de inmediación y celeridad; en ningún caso quedará en indefensión. El incumplimiento de las resoluciones judiciales será sancionado por la ley.").

3.50.
Article 76(7)(k): Article 76(7)(k) of the 2008 Ecuadorian Constitution provides:

"The right of persons to a defense shall include the following guarantees: … k) To be judged by an independent, impartial and competent judge. No one shall be judged by extraordinary courts or special commissions created for this purpose."

(In the original Spanish: "El derecho de las personas a la defensa incluirá las siguientes garantías: (…) k) Ser juzgado por una jueza o juez independiente, imparcial y competente. Nadie será juzgado por tribunales de excepción o por comisiones especiales creadas para el efecto.").

J: The Ecuadorian Civil Code4

3.51.
Article 7: Article 7 of the Civil Code provides:

"The law does not provide except for the future; it has no retroactive effect; and when a later law conflicts with a prior law, the following rules shall be observed:

18. The laws in effect when a contract is executed shall be deemed incorporated into such contract.

This provision shall not apply to: (1) laws about how to sue for rights resulting from the contract and (2) laws indicating penalties for a violation of the contractual provisions, since the violation will be punished in accordance with the law under which it was committed;

20. Laws concerning the hearing of and procedure in lawsuits shall prevail over prior laws from the time at which they take effect. But time periods that have already begun to run, and any proceedings that have already commenced, shall be governed by the law that was in effect at that time;"

(In the original Spanish: "La ley no dispone sino para lo venidero: no tiene efecto retroactivo; y en conflicto de una ley posterior con otra anterior, se observarán las reglas siguientes: (…)

18. En todo contrato se entenderán incorporadas las leyes vigentes al tiempo de su celebración.

Exceptúanse de esta disposición: 1ro., las leyes concernientes al modo de reclamar en juicio los derechos que resultaren del contrato; y, 2., las que señalan penas para el caso de infracción de lo estipulado en los contratos; pues ésta será castigada con arreglo a la ley bajo la cual se hubiere cometido;

(…)

20. Las leyes concernientes a la sustanciación y ritualidad de los juicios, prevalecen sobre las anteriores desde el momento en que deben comenzar a regir. Pero los términos que hubieren comenzado a correr, y las actuaciones y diligencias que ya estuvieren comenzadas, se regirán por la ley que estuvo entonces vigente;").

3.52.
Article 18: Article 18 of the Civil Code provides:

"Judges shall not suspend or deny the administration of justice because of the obscurity or lack of a law. In such cases, they shall adjudicate in accordance with the following rules:

1. When the meaning of the law is clear, they shall not disregard its literal meaning, on the pretext of determining the spirit of the law.

However, to interpret an obscure provision of a law, they may indeed resort to its intent or spirit as clearly manifested in the law itself, or to the trustworthy history of the law's establishment;

2. The words in the law shall be understood in their natural and obvious meaning, in accordance with the general use of the words themselves, but when the legislator has expressly defined them for certain subjects, the words shall be given their legal meaning;

3. The technical words from any science or art shall be taken in the meaning given to them by those practicing the same science or art; unless it clearly appears that they have been taken to mean something different;

4. The context of a law shall be used to interpret the meaning of each of its parts, so that the due connection and harmony exists among all of them.

Obscure passages in a law may be illustrated by means of other laws, particularly if they deal with the same topic;

5. The favorable or odious aspect of a provision shall not be taken into account to broaden or restrict its interpretation. The scope that shall be given to any law shall be determined through its genuine meaning and in accordance with the foregoing rules of interpretation.

6. In cases where the foregoing rules of interpretation cannot be applied, obscure or contradictory passages shall be interpreted in the manner that is most consistent with the general spirit of the law and natural fairness; and,

7. If there is no law, the laws governing analogous cases shall be applied, and if there are no such laws, then the general principles of universal law shall be used."

(In the original Spanish: "Los jueces no pueden suspender ni denegar la administración de justicia por oscuridad o falta de ley. En tales casos juzgarán atendiendo a las reglas siguientes:

1a.- Cuando el sentido de la ley es claro, no se desatenderá su tenor literal, a pretexto de consultar su espíritu.

Pero bien se puede, para interpretar una expresión oscura de la ley, recurrir a su intención o espíritu claramente manifestados en ella misma, o en la historia fidedigna de su establecimiento;

2a.- Las palabras de la ley se entenderán en su sentido natural y obvio, según el uso general de las mismas palabras; pero cuando el legislador las haya definido expresamente para ciertas materias, se les dará en éstas su significado legal;

3a.- Las palabras técnicas de toda ciencia o arte se tomarán en el sentido que les den los que profesan la misma ciencia o arte, a menos que aparezca claramente que se han tomado en sentido diverso;

4a.- El contexto de la ley servirá para ilustrar el sentido de cada una de sus partes, de manera que haya entre todas ellas la debida correspondencia y armonía.

Los pasajes oscuros de una ley pueden ser ilustrados por medio de otras leyes, particularmente si versan sobre el mismo asunto;

5a.- Lo favorable u odioso de una disposición no se tomará en cuenta para ampliar o restringir su interpretación. La extensión que deba darse a toda ley se determinará por su genuino sentido y según las reglas de interpretación precedentes;

6a.- En los casos a que no pudieren aplicarse las reglas de interpretación precedentes, se interpretarán los pasajes oscuros o contradictorios del modo que más conforme parezca al espíritu general de la legislación y a la equidad natural; y,

7a.- A falta de ley, se aplicarán las que existan sobre casos análogos; y no habiéndolas, se ocurrirá a los principios del derecho universal.").

3.53.
Article 1530: Article 1530 of the Civil Code provides:

"The creditor can act against all the joint and several debtors jointly, or against any of them, at his discretion, without the latter being able to oppose the benefit of division."

(In the original Spanish: "El acreedor podrá dirigirse contra todos los deudores solidarios juntamente, o contra cualquiera de ellos a su arbitrio, sin que por éste pueda oponérsele el beneficio de división.").

3.54.
Article 1538: Article 1538 of the Civil Code provides:

"The joint and several debtor who has paid the debt, or has canceled it through any of the means equivalent to payment, remains subrogated in the creditor's legal action with all his privileges and securities, but is limited, vis-a-vis each of the codebtors, to this co-debtor's part or share of the debt."

(In the original Spanish: "El deudor solidario que ha pagado la deuda, o la ha extinguido por alguno de los medios equivalentes al pago, queda subrogado en la acción del acreedor con todos sus privilegios y seguridades; pero limitada, respecto de cada uno de los codeudores, a la parte o cuota que tenga este codeudor en la deuda.").

3.55.
Article 1561: Article 1561 of the Civil Code provides:

"Every contract legally executed is the law for the contracting parties and cannot be invalidated except by the mutual agreement of the parties or for legal reasons."

(In the original Spanish: "Todo contrato legalmente celebrado es una ley para los contratantes, y no puede ser invalidado sino por su consentimiento mutuo o por causas legales.").

3.56.
Article 1562: Article 1562 of the Civil Code provides:

"Contracts should be performed in good faith, and thus obligate, not only what is expressly provided for, but all things that precisely emanate from the nature of the obligation whether by law or custom."

(In the original Spanish: "Los contratos deben ejecutarse de buena fe, y por consiguiente obligan, no sólo a lo que en ellos se expresa, sino a todas las cosas que emanan precisamente de la naturaleza de la obligación, o que, por la ley o la costumbre, pertenecen a ella.").

3.57.
Article 1572: Article 1572 of the Civil Code provides:

"Damages include consequential damages and lost profit, regardless of whether they result from failure to comply with the obligation, or improper performance of the obligation or delay in the performance. The foregoing rule does not apply to cases in which the law limits the damages to consequential damages. It also does not apply to damages for pain and suffering as granted by Title XXXIII of Book IV of this Code."

(In the original Spanish: "La indemnización de perjuicios comprende el daño emergente y el lucro cesante, ya provengan de no haberse cumplido la obligación, o de haberse cumplido imperfectamente, o de haberse retardado el cumplimiento. Exceptúanse los casos en que la ley la limita al daño emergente. Exceptúanse también las indemnizaciones por daño moral determinadas en el Título XXXIII del Libro IV de este Código.").

3.58.
Article 2214: Article 2214 of the Civil Code provides:

"Whoever commits an offense or tort resulting in harm to another shall indemnify the affected party, without detriment to the penalty provided by law for such offense or tort."

(In the original Spanish: "El que ha cometido un delito o cuasidelito que ha inferido daño a otro, está obligado a la indemnización; sin perjuicio de la pena que le impongan las leyes por el delito o cuasidelito.").

3.59.
Article 2217: Article 2217 of the Civil Code provides:

"If an intentional or unintentional tort has been committed by two or more persons, each of them shall be joint and severally liable for any damage stemming from the same intentional or unintentional tort, except for the exceptions in Articles 2223 and 2228."

(In the original Spanish: "Si un delito o cuasidelito ha sido cometido por dos o más personas, cada una de ellas será solidariamente responsable de todo perjuicio procedente del mismo delito o cuasidelito, salvo las excepciones de los Arts. 2223 y 2228.").

3.60.
Article 2229: Article 2229 of the Civil Code provides:

"As a general rule, all damages that can be attributed to malice or negligence by another person must be compensated for by that person. Individuals especially obligated to this compensation include: 1. An individual who causes fires or explosions recklessly; 2. An individual who recklessly shoots a firearm; 3. An individual who removes flagstones from a trench or pipe in the street or along a road without necessary precautions to prevent those traveling during the day or night from falling; 4. An individual who, obligated to build or repair an aqueduct or bridge that crosses a road, maintains it in such a state that it causes injury to those who cross it; and, 5. An individual who manufactures and circulates products, objects, or devices that cause accidents due to construction or manufacturing defects, shall be held liable for the respective damages."

(In the original Spanish: "Por regla general todo daño que pueda imputarse a malicia o negligencia de otra persona debe ser reparado por ésta. Están especialmente obligados a esta reparación: 1. El que provoca explosiones o combustión en forma imprudente; 2. El que dispara imprudentemente una arma de fuego; 3. El que remueve las losas de una acequia o cañería en calle o camino, sin las precauciones necesarias para que no caigan los que por allí transitan de día o de noche; 4. El que, obligado a la construcción o reparación de un acueducto o puente que atraviesa un camino, lo tiene en estado de causar daño a los que transitan por él; y, 5. El que fabricare y pusiere en circulación productos, objetos o artefactos que, por defectos de elaboración o de construcción, causaren accidentes, responderá de los respectivos daños y perjuicios.").

3.61.
Article 2236: Article 2236 of the Civil Code provides:

"As a general rule, a popular action is granted in all cases of contingent harm which, due to recklessness or negligence of a party threatens undetermined persons. But if the harm threatened only determined persons, only one of these may pursue the action."

(In the original Spanish: "Por regla general se concede acción popular en todos los casos de daño contingente que por imprudencia o negligencia de alguno amenace a personas indeterminadas. Pero si el daño amenazare solamente a personas determinadas, sólo alguna de éstas podrá intentar la acción.").

K: The Ecuadorian Code of Civil Procedure

3.62.
Article 355(3): Article 355(3) of the Code of Civil Procedure (now re-numbered Article 346(3)) provides:

"Substantive formalities which are common to all proceedings and instances, are: … 3. Legal capacity;"

(In the original Spanish: "Son solemnidades sustanciales comunes a todos los juicios e instancias: (…) 3. Legitimidad de personería;").

L: The Environmental Management Act (EMA)

3.63.
Article 1: Article 1 of the Environmental Management Act 1999 provides:

"This Act establishes the principles and guidelines for environmental policy, determines the obligations, responsibilities and levels of participation of the public and the private sectors in environmental management and indicates the permissible limits, controls and punishments in this field."

(In the original Spanish: "La presente Ley establece los principios y directrices de política ambiental; determina las obligaciones, responsabilidades, niveles de participación de los sectores público y privado en la gestión ambiental y señala los límites permisibles, controles y sanciones en esta materia.").

3.64.
Article 2: Article 2 of the Environmental Management Act 1999 provides:

"Environmental management is subject to the principles of solidarity, mutual responsibility, cooperation, coordination, recycling and reutilization of waste, use of environmentally sustainable alternative technologies and respect for traditional cultures and practices."

(In the original Spanish: "La gestión ambiental se sujeta a los principios de solidaridad, corresponsabilidad, cooperación, coordinación, reciclaje y reutilización de desechos, utilización de tecnologías alternativas ambientalmente sustentables y respecto a las culturas y prácticas tradicionales.").

3.65.
Article 41: Article 41 of the Environmental Management Act 1999 provides:

"In order to protect individual or collective environmental rights, a public action is hereby granted to individuals and legal entities or human groups to denounce the violation of environmental rules without prejudice to the action for constitutional protection provided for in the Political Constitution of the Republic."

(In the original Spanish: "Con el fin de proteger los derechos ambientales individuales o colectivos, concédese acción pública a las personas naturales, jurídicas o grupo humano para denunciar la violación de las normas de medio ambiente, sin perjuicios de la acción de amparo constitucional previsto en la Constitución Política de la República.").

3.66.
Article 42: Article 42 of the Environmental Management Act 1999 provides:

"Any individual, legal entity or human group can be heard in criminal, civil, or administrative proceedings filed for violations of an environmental nature, after posting a slander bond even if their own rights have not been violated.

The President of the Superior Court of the place where the harm to the environment occurred shall have jurisdiction to hear the actions that may be brought as a result of such harm. If the harm covers various jurisdictions, any of the presidents of the superior courts of those jurisdictions shall have jurisdiction."

(In the original Spanish: Toda persona natural, jurídica o grupo humano podrá ser oída en los procesos penales, civiles o administrativos, previa fianza de calumnia, que se inicien por infracciones de carácter ambiental, aunque no haya sido vulnerados sus propios derechos.

EI Presidente de la Corte Superior del lugar en que se produzca 1a afectación ambiental será el competente para conocer las acciones que se propongan a consecuencia de la misma. Si la afectación comprende varias jurisdicciones, la competencia corresponderá a cualquiera de los presidentes de las cortes superiores de esas jurisdicciones.").

3.67.
Article 43: Article 43 of the Environmental Management Act 1999 provides:

"The individuals, legal entities or human groups linked by a common interest and affected directly by the harmful act or omission may file before the court with jurisdiction actions for damages and for deterioration caused to health or the environment, including biodiversity and its constituent elements.

Without prejudice to any other legal actions that might be available, the judge shall order the party responsible for the damage to pay compensation in favor of the community directly affected and to repair the harm and damage caused. The judge shall also order the responsible party to pay ten percent (10%) of the value of the compensation in favor of the plaintiff.

Without prejudice to these payments, and in the event that the community directly affected cannot be identified or such community is the entire community, the judge shall order that payment of damages be made to the institution that performs the remediation work, in accordance with this law.

In any event, the judge shall determine in his ruling, in accordance with the experts' reports that may be ordered, the amount required to remediate the damage caused and the amount to be given to the members of the community directly affected. The judge shall also determine the individual or legal entity that shall receive payment and perform the remediation work.

Claims for damages originating from harm to the environment shall be heard in verbal summary proceedings."

(In the original Spanish: "Las personas naturales, jurídicas o grupos humanos, vinculados por un interés común y afectados directamente por la acción u omisión dañosa podrán interponer ante el Juez competente, acciones por daños y perjuicios y por el deterioro causado a la salud o al medio ambiente incluyendo la biodiversidad con sus elementos constitutivos.

Sin perjuicio de las demás acciones legales a que hubiere lugar, el juez condenará al responsable de los daños al pago de indemnizaciones a favor de la colectividad directamente afectada y a la reparación de los daños y perjuicios ocasionados. Además condenará al responsable al pago del diez por ciento (10%) del valor que represente la indemnización a favor del accionante.

Sin perjuicio de dichos pagos y en caso de no ser identificable la comunidad directamente afectada o de constituir ésta el total de la comunidad, el juez ordenará que el pago que por reparación civil corresponda se efectúe a la institución que debe emprender las labores de reparación conforme a esta Ley.

En todo caso, el juez determinará en sentencia, conforme a los peritajes ordenados, el monto requerido para la reparación del daño producido y el monto a ser entregado a los integrantes de la comunidad directamente afectada. Establecerá además la persona natural o jurídica que deba recibir el pago y efectuar las labores de reparación.

Las demandas por daños y perjuicios originados por una afectación al ambiente, se tramitarán por la vía verbal sumaria.").

M: The Collusion Prosecution Act (CPA)

3.68.
Article 1: Article 1 of the Collusion Prosecution Act provides:

"Any person who has suffered harm, in any way, by a collusive procedure or act, e.g., if he/she has been deprived of the ownership, possession or occupancy of a piece of real property, or of any right in rem of use, usufruct, occupancy, easement or antichresis over such piece of real property or other rights that are legally due to such person, may file an action before the civil and commercial judge of the domicile of any of the defendants."

(In the original Spanish: El que mediante algún procedimiento o acto colusorio hubiere sido perjudicado en cualquier forma, como entre otros, en el caso de privársele del dominio, posesión o tenencia de algún inmueble, o de algún derecho real de uso, usufructo, habitación, servidumbre o anticresis constituido sobre un inmueble o de otros derechos que legalmente le competen, podrá acudir con su demanda ante la jueza o juez de lo civil y mercantil del domicilio de cualquiera de los demandados.").

3.69.
Article 5: Article 5 of the Collusion Prosecution Act provides:

"Once the conciliation hearing has taken place and if the proceedings continue, the judge shall grant a ten day period for evidence. The judge shall request the record of the proceedings where the collusion allegedly played a role, as well as that of the associated proceedings, if any, and shall order, ex officio or at the request of the interested party, any evidence that deemed necessary for clarification of facts.

If the requested proceedings are ongoing, a copy shall be requested."

(In the original Spanish: "Realizada la junta de conciliación, caso de continuarse el juicio, la jueza o juez concederá el término de diez días para la prueba; pedirá entonces el juicio en que se pretende haber incidido la colusión, y los procesos conexos, si los hubiere, y ordenará, de oficio o a petición de parte, las pruebas que estimare procedentes para el esclarecimiento de los hechos.

Si los procesos pedidos estuvieren en trámite, se ordenará conferir copia.").

3.70.
Article 6: Article 6 of the Collusion Prosecution Act provides:

"The judge shall issue the decision within a period of fifteen days. If the grounds for the claim are confirmed, measures to void the collusive proceeding will be issued, invalidating the act or acts, and contract or contracts affected by it, as the case may be, and redressing the harm caused, by restoring to the affected party the possession or holding of the property in question, or the enjoyment of the respective right, and, as a general matter, restoring the things to the state prior to the collusion.

If the lawsuit was brought also against judges and attorneys, and there is proof that they participated maliciously, the judge shall forward copies of the court file to the Judiciary Council to initiate proceedings for removal from office or suspension of the professional practice, as the case may be, without detriment to sentencing them to joint payment of compensation for damages.

Once the judgment becomes final and enforceable, the damages amount shall be liquidated by the trial court, in a separate record. Once the amount has been determined, it shall be collected by attachment order."

(In the original Spanish: "La jueza o juez expedirá el fallo dentro del término de quince días. De encontrar fundada la demanda, se dictarán las medidas para que quede sin efecto el procedimiento colusorio, anulando el o los actos, contrato o contratos que estuvieren afectados por el, según el caso, y se reparen los daños y perjuicios ocasionados, restituyéndose al perjudicado la posesión o tenencia de los bienes de que se trate, o el goce del derecho respectivo, y, de manera general, reponiendo las cosas al estado anterior de la colusión.

Si la demanda se hubiere dirigido también contra los jueces y abogados, y se probare que han intervenido maliciosamente, la jueza o juez remitirá copias del expediente al Consejo de la Judicatura para que se inicien los expedientes de destitución o de suspensión del ejercicio profesional, según sea el caso, sin perjuicio de condenarlos, a unos y a otros, al pago solidario de los daños y perjuicios ocasionados.

Ejecutoriada la sentencia se liquidarán los daños y perjuicios ante el tribunal de primera instancia, en cuaderno separado. Determinado el monto, se lo cobrará con apremio real.").

3.71.
Article 7: Article 7 of the Collusion Prosecution Act provides:

"The affected party may bring a private criminal action seeking a punishment ranging from one month to a year of imprisonment for those responsible for the collusion. The statute of limitations period for such action shall begin on the day on which the judgment in civil proceedings became final and enforceable."

(In the original Spanish: "El afectado podrá iniciar la correspondiente acción penal privada, para que se imponga a los responsables de la colusión la pena de un mes a un año de prisión por el cometimiento de la colusión. El plazo de prescripción de la acción comenzará a correr desde el día en que se ejecutoríe la sentencia en el juicio civil.").

PART IV - THE FACTS AND OTHER MATTERS

A: Introduction

4.1.
In Parts IV, V and VI of this Award, the Tribunal considers the Claimants' allegations that several judges of the Lago Agrio Court misconducted and misdecided the Lago Agrio Litigation, in breach of the protections provided to the Claimants by the Treaty. The Tribunal considers, in particular, the Claimants' allegation that Judge Zambrano did not write the Lago Agrio Judgment of 14 February 2011 (with its Clarification Order of 4 March 2011); but, rather, that the Lago Agrio Judgment was 'ghostwritten', with Judge Zambrano's corrupt connivance, by certain of the Lago Agrio Plaintiffs' representatives.1 In addition, the Tribunal considers the Claimants' allegations that the Respondent's Government improperly intervened in the Lago Agrio Litigation, also in breach of the protections provided to the Claimants by the Treaty.
4.2.
These allegations are denied by the Respondent.
4.3.
In this Part IV, as already indicated, the Tribunal addresses the evidence relevant to the issues regarding the alleged judicial misconduct, improper intervention by the Government and the 'ghostwriting' of the Lago Agrio Judgment. In Part V, the Tribunal addresses specific aspects of the Lago Agrio Judgment of 14 February 2011, the Lago Agrio Appellate Judgment of 3 January 2012,2 the Cassation Court Judgment of 12 November 20133 and the Constitutional Court Judgment of 27 June 2018.4 In Part VI, the Tribunal considers separately the forensic computer evidence adduced by the Parties' forensic expert witnesses in support of their respective cases as to the 'ghostwriting' of the Lago Agrio Judgment, including earlier orders issued by Judge Zambrano.
4.4.
As regards the factual issues (including the expert and forensic issues), the Claimants bear the legal burden of proving the facts upon which they rely to support their claims, under Article 24(1) of the UNCITRAL Arbitration Rules.5 Whilst the evidential burden may shift from one side to the other depending on the evidence, it remains always for the Claimants to prove their positive case.
4.5.
The Tribunal emphasises, at the outset, that the focus of its inquiry is the conduct of the Respondent acting through its judicial branch, in the form of the Lago Agrio Court, the Lago Agrio Appellate Court, the Cassation Court and the Constitutional Court, and through its executive branch. To that inquiry, the conduct of the Lago Agrio Plaintiffs' representatives is incidental, albeit relevant as part of the factual background to the conduct of the Respondent's Courts and Government.
4.6.
Accordingly, the Tribunal does not rely upon the judgments of the New York Courts in the RICO Litigation, to which the Respondent was not a party and which bore no legal relationship to the Treaty on which the Tribunal must rest its jurisdiction and apply, as the applicable law, international law to the Parties' dispute in this arbitration under the Treaty.

B: Evidential Sources

4.7.
The evidence of relevant factual materials is extensive, complicated and much disputed, taking place over several decades. The Tribunal has preferred to rely, where it can, upon contemporary written materials, rather than upon the unsupported oral testimony of certain witnesses who testified before this Tribunal and elsewhere. However, even this explanation is incomplete, particularly as regards three individuals: (i) Dr Zambrano; (ii) Mr Steven Donziger; (ii) certain of the Lago Agrio's other representatives in Ecuador and the USA; and (iv) Dr Alberta Guerra Bastidas.
4.8.
(1) Dr Zambrano: Judge Zambrano issued procedural orders in the Lago Agrio Litigation during his two periods presiding over the Lago Agrio Litigation: (i) from October 2009 to March 2010 and (ii) from October 2010 to March 2011. He also delivered the Lago Agrio Judgment and its Clarification on 14 February and 4 March 2011 respectively.6
4.9.
At the procedural meeting held with the Parties on 21 January 2014, the Tribunal indicated its concern to the Parties that very serious allegations were being made in this arbitration against Dr Zambrano (by then no longer a judge) in circumstances where he might not be called as a witness by any of the Parties. In that event, Dr Zambrano would not be afforded an opportunity to appear before the Tribunal, so as to testify in response to the allegations made against him as the Judge presiding over the Lago Agrio Litigation, first, from October 2009 to March 2010 and, second, from 11 October 2010 to 4 March 2011. In those circumstances the Tribunal stated that it would be appropriate for the Tribunal itself to extend an invitation to Dr Zambrano to attend, as a factual witness, the hearing then scheduled to take place at the World Bank in Washington D.C., USA from 21 April to 8 May 2015 ("the Track II Hearing").
4.10.
On 8 December 2014, the Claimants indicated that they wished to question Dr Zambrano at the Track II Hearing and asked whether "Ecuador would facilitate and ensure the appearance of Mr Zambrano at the hearing…". By the Claimants' subsequent list of witnesses contained in their letter dated 20 March 2015, the Claimants again confirmed their wish to question Dr Zambrano as a factual witness at the Track II Hearing. It was self-evident that the Claimants were not themselves in a position to call Dr Zambrano (being resident in Ecuador) as a witness at the Track II Hearing in the USA.
4.11.
By letter dated 11 December 2014, the Office of the Attorney-General of Ecuador informed Dr Zambrano of: (i) the Tribunal's invitation to him to attend the Track II Hearing to address the allegations made against him and (ii) the Claimants' wish to question him during that Hearing. The Tribunal is satisfied that this information did reach Dr Zambrano personally; but there was no response from him to the Tribunal.
4.12.
On 10 January 2015, the Office of the Attorney General of Ecuador sent a further letter repeating the Tribunal's invitation. The Tribunal is satisfied that this information also reached Dr Zambrano personally; but there was again no response from him to the Tribunal.
4.13.
By letter to the Tribunal dated 28 January 2015, the Respondent stated that Dr Zambrano was not under the control of the Respondent; that he was a part-time consultant for an Ecuadorian company (in Ecuador) in which the Government of Ecuador had an ownership interest; but that neither the Office of the Attorney General nor the Respondent's outside counsel had any relations with Dr Zambrano.
4.14.
The Claimants, by letter to the Tribunal dated 9 February 2015, contended that Dr Zambrano was under the Respondent's control and that the Respondent had the power to cause Dr Zambrano to appear at the Track II Hearing as a witness. The Claimants requested the Tribunal to draw adverse inferences against the Respondent in the event that Dr Zambrano should not give evidence at the Track II Hearing.
4.15.
At the procedural meeting held with the Parties on 10 March 2015, the Tribunal noted that, in light of the judgment (then under appeal) of the United States District Court for the Southern District of New York in Chevron Corporation v Stephen Donziger (the "RICO Litigation" in New York),7 it might be thought awkward for Dr Zambrano to attend the Track II Hearing in person in the USA. If so, the Tribunal was therefore minded, as a less preferred alternative, to invite Dr Zambrano to give evidence by videolink from Ecuador. The Parties' counsel indicated that they would need to take instructions from their respective clients on this proposal. The Claimants also noted that their immediate reaction was that it would not be possible to conduct a full crossexamination by video-link, not least because it would be necessary to provide Dr Zambrano with copies of all relevant documents on which the Claimants might wish to question him.
4.16.
The Tribunal understood at this time that, without more, Dr Zambrano would not be a witness at the Track II Hearing.
4.17.
In these circumstances, the Tribunal re-stated to the Parties its wish to hear Dr Zambrano's factual testimony, it at all possible. For that purpose, the Tribunal confirmed its invitation to Dr Zambrano as a witness to attend the Track II Hearing in person or, if that was not possible, to participate by video link from Ecuador. The Tribunal considered that, as a matter of basic fairness, Dr Zambrano should be given a reasonable opportunity to participate in the Track II Hearing as a witness (subject to questioning by the Parties and the Tribunal), so as to respond to the allegations made against him in this arbitration.
4.18.
The Tribunal therefore decided, as recorded in its Procedural Order No. 33 of 27 March 2015, that the Tribunal would invite Dr Zambrano itself, directly, to attend the Track II Hearing as a factual witness either (preferably) in person at the World Bank in Washington DC, USA or (in the less preferred alternative) via video-link from Ecuador from an appropriate place convenient for Dr Zambrano and the PCA. A draft of the Tribunal's proposed letter to Dr Zambrano to this effect was attached as Annex A to this Procedural Order, in Spanish and English translation, as to which the Parties' comments were invited.
4.19.
The Tribunal also decided that: Dr Zambrano should be free to accept or refuse the Tribunal's invitation, as he wished, without any interference from the Parties; in the event that Dr Zambrano accepted the Tribunal's invitation to testify, the Parties should do everything in their power to facilitate his participation as a factual witness during the Track II Hearing; the reasonable costs of Dr Zambrano's participation, whether it be in person or by video-link, should be paid by the PCA out of the Parties' deposits held by the PCA; and the date(s) and format of Dr Zambrano's participation during the Track II Hearing would be specified later by the Tribunal, following consultations with Dr Zambrano and the Parties.
4.20.
In the event that Dr Zambrano decided to attend the Track II Hearing via video-link only, the Tribunal decided that: the Parties should by a date to be specified later by the Tribunal (following further consultation with the Parties) compile an electronic file containing copies of any documents on which they wished to question Dr Zambrano and transmit that file to the PCA; a representative of the PCA would travel to Ecuador in order to provide Dr Zambrano with copies of the documents so identified and to provide any assistance to Dr Zambrano that he might require during the video conference; the Parties and the Tribunal could question Dr Zambrano during the video conference from the Hearing at the World Bank; no representative of any Party should be present with Dr Zambrano in Ecuador; the PCA would liaise directly with Dr Zambrano in relation to the location and other arrangements for the video conference and would ensure that all necessary logistical arrangements were in place; and the Tribunal would make a further procedural order following consultations with the Parties to regulate the procedure for the video conference.
4.21.
By letter dated 1 April 2015, at the Tribunal's direction, the PCA sent the following letter to Dr Zambrano, enclosing the Tribunal's written invitation to testify as a witness at the Track II Hearing, in Spanish (Dr Zambrano does not know English):

"Estimado Dr. Zambrano:

Me pongo en contacto con Ud. en mi capacidad de Secretario del Tribunal en el caso CPA Nº 2009-23: "Chevron Corporation y Texaco Petroleum Company c. República del Ecuador" con el fin de hacerle llegar una comunicación del Señor V.V. Veeder, Presidente del Tribunal Arbitral en dicho procedimiento, invitándole a participar en una audiencia que tendrá lugar del 21 de abril al 5 de mayo de 2015 en la sede del Banco Mundial en Washington DC, EE.UU. A tales efectos, ruego sírvase encontrar adjunta a continuación copia de la misma.

Para el caso en que decida aceptar la invitación del Tribunal para participar en esta audiencia, le ruego se ponga en contacto conmigo en la mayor brevedad en los siguientes contactos: [The Tribunal's Secretary, the PCA with full contact details supplied].

Le ruego, a este efecto, que me avise a más tardar el viernes 10 de abril de 2015 si aceptará la invitación del Tribunal, ya que después de esta fecha no será posible tomar los arreglos necesarios para su participación.

Desde ya le agradezco su atención para con este tema y no dude contactar conmigo para cualquier pregunta que le surja en relación con esta carta. Muy atentamente, Martín Doe Rodríguez …"8

4.22.
The Tribunal's enclosed invitation read:

"Estimado Dr. Zambrano,

Como tal vez ya sea de su conocimiento, Chevron Corporation y Texaco Petroleum Company (las "Demandantes") iniciaron en 2009 un arbitraje internacional frente a la Corte Permanente de Arbitraje en la Haya (la "CPA") bajo el Reglamento de Arbitraje de la CNUDMI en contra del Estado de Ecuador como Demandada de acuerdo con un Tratado entre Ecuador y los Estados Unidos de América (el "Tratado").

Le escribimos a usted en nuestra capacidad de Tribunal Arbitral nombrado de acuerdo con el Tratado para decidir la disputa entre las Demandantes y la Demandada.

En este procedimiento arbitral, las Demandantes alegan que la Demandada ha violado sus obligaciones de derecho internacional, inter alia, a través de las acciones y omisiones del Poder Judicial ecuatoriano durante el caso de Lago Agrio. La Demandada niega las alegaciones de las Demandantes y se opone a la base legal jurisdiccional para las demandas de las Demandantes bajo el Tratado.

Se celebrará con las Demandantes y la Demandada una audiencia en este arbitraje que tendrá lugar en el Banco Mundial en Washington DC, EE.UU. del 21 de abril al 5 de mayo de 2015.

Si fuera del todo posible, el Tribunal Arbitral quisiera recibir su testimonio sobre los hechos del caso. Por este motivo, el Tribunal le invita a presentarse como testigo en esta audiencia, o si eso no fuera posible, que participe por medio de una videoconferencia.

Si acepta esta invitación, la CPA se encargará de los arreglos necesarios para su participación, incluyendo para cubrir sus gastos razonables.

El Tribunal ha informado a ambas las Demandantes y la Demandada de su intención de extenderle esta invitación y las Partes no han planteado ninguna objeción al respecto.

Esperamos su pronta rrespuesta, antes del viernes 10 de abril de 2015.

Atentamente, [The President of the Tribunal]."9

4.23.
At the procedural meeting held with the Parties on 8 April 2015, the Tribunal reported that the above correspondence had been delivered to Dr Zambrano in Manta, Ecuador, as confirmed by the courier's receipt signed for Dr Zambrano on 7 April 2015.10 The Tribunal is satisfied that this correspondence reached Dr Zambrano personally; but there was again no response from him to the Tribunal.
4.24.
The Tribunal regrets that Dr Zambrano did not testify before this Tribunal. The Tribunal recognises, however, that it was his right to choose not to do so. Further, on the materials available in this arbitration, the Tribunal accepts, as submitted by the Respondent, that his choice was not induced by the Respondent. In these circumstances, the Tribunal does not think it appropriate to draw any adverse inference against the Respondent, as requested by the Claimants, for Dr Zambrano's absence as a witness in this arbitration.
4.25.
Dr Zambrano did testify, on oath, in the RICO Litigation, before the United States District Court for the Southern District of New York (Judge Kaplan). His testimony, in the form of a statement, deposition and trial testimony, is available to this Tribunal as evidence by agreement of the Parties (as submitted by the Parties with their respective written pleadings).11 The Tribunal has made extensive use of it.
4.26.
(2) Mr Donziger: Mr Steven Donziger is not an Ecuadorian lawyer or a citizen of Ecuador; nor is he to be regarded as an agent (or organ) of the Respondent for the purpose of attribution under international law. He is a citizen of the USA, resident in New York and a member of the New York Bar (currently suspended). For many years, since at least 1993, he acted as a representative of the Aguinda Plaintiffs first in the Aguinda Litigation in New York and, subsequently, of the Lago Agrio Plaintiffs in the Lago Agrio Litigation in Ecuador. He is Spanish-speaking.
4.27.
The Tribunal would have wished to hear Mr Donziger testify personally in this arbitration . Mr Donziger was an important actor in the Lago Agrio Litigation leading up to the Lago Agrio Judgment and Clarification Order. However, it soon became apparent to the Tribunal that Mr Donziger would not be called as a witness by any Party to this arbitration. Nor was he. Moreover, as the principal defendant in the RICO Litigation brought by Chevron in New York, Mr Donziger clearly had other more pressing personal priorities than assisting this Tribunal as a witness. It was therefore pointless for the Tribunal itself to extend an invitation to him to testify at the Track II Hearing. Further, Mr Donziger was afforded a full opportunity to defend himself against Chevron's allegations of 'ghostwriting' and other improper conduct in the RICO Litigation.
4.28.
Mr Donziger did testify at length, on oath, in the RICO Litigation in New York. His testimony, in the form of depositions and trial testimony, is available to this Tribunal with the Parties' agreement (also, as submitted by the Parties with their respective written pleadings).12 As with Dr Zambrano's testimony, the Tribunal has made extensive use of it.13
4.29.
The Tribunal has also made extensive use of Mr Donziger's personal notebook (or "diary"). This was originally a private document written by Mr Donziger for his own personal use only. It was disclosed by Mr Donziger to Chevron under court orders in the US Section 1782 and RICO Litigation brought by Chevron against Mr Donziger, along with his private email correspondence and computer hard drives. As a resident of New York, Mr Donziger was (and remains) subject to the jurisdiction of the courts of the USA.
4.30.
The Tribunal has made use of Mr Donziger's diary and emails with caution. What is written in a private diary and also in private emails to close colleagues cannot always be taken literally by third persons, long after the event. In the Tribunal's view, even the starkest statement has to be assessed in context and in the light of other circumstances prevailing at the time.
4.31.
There is a further qualification. By October 2010, Mr Donziger's emails and computers in the USA had been seized by Chevron under orders from US Courts. Thereafter, if not months before, the form and content of communications between Mr Donziger in New York and his colleagues in Ecuador doubtless underwent a precautionary change.
4.32.
Even earlier, in his email to Mr Donziger of 30 March 2010, Mr Prieto (one of the Lago Agrio Plaintiffs' representatives in Ecuador) had already expressed grave concerns about 'going to jail' because of email disclosures to Chevron likely to be ordered by the US Courts in the US Section 1782 Litigation (see the chronology below). Even before any court orders for such disclosure, certain of the Lago Agrio Plaintiffs' representatives had resorted to using code-words in their email messages to each other (see also the chronology below). It follows that the content of certain emails from at least October 2010 onwards is likely to have been tailored by certain of these representatives, if email was used by them for certain purposes at all.
4.33.
As regards both Mr Donziger and other representatives of the Lago Agrio Plaintiffs, the Tribunal has made extensive use of the offcuts from the documentary film "Crude". These offcuts were never intended to be made public. As described further below, these offcuts (totalling about 600 hours of video film) were disclosed to Chevron under court orders in the US Section 1782 Litigation brought by Chevron against the film's director, Mr Joseph Berlinger.14
4.34.
(3) The Lago Agrio Plaintiffs' Representatives : The Lago Agrio Plaintiffs' representatives and legal advisers, at different times, included Mr Norman Alberto Wray (a senior Ecuadorian lawyer and former judge of the Ecuadorian Supreme Court), Mr Cristóbal Bonifaz (of Amherst, MA, USA), Mr Pablo Fajardo Mendoza (from 2005), Mr Juan Pablo Sáenz, Mr Julio Prieto Méndez, Mr Alejandro Ponce Villacis, Mr Luís Yanza (a director of the "Frente de Defensa La Amazonia" or "Frente" and, in English, the "Amazon Defence Front" or "ADF"), Mr Icoca Manuel Tegautal, Mr Joseph Kohn (of Kohn, Swift & Graf, Philadelphia, PA, USA); Patton Boggs (a law firm in Washington DC, USA from about August 2010) and, as already indicated, Mr Donziger. The funding for such legal representation came principally from Mr Kohn (until 2010), Mr Russell DeLeon,15 Patton Boggs and (from 2010) Burford Capital, in return for success fees calculated on recoveries from Chevron upon the eventual enforcement of the Lago Agrio Judgment. Other non-party funders appear to have become involved in the Lago Agrio Judgment's enforcement proceedings outside Ecuador.
4.35.
As regards the Lago Agrio Plaintiffs' representatives in Ecuador, especially Mr Fajardo, Mr Sáenz, Mr Prieto and Mr Yanza,16 there is little evidence in this arbitration of what they said and did other than what is recorded in the "Crude" off-cuts and their written communications to and from Mr Donziger, as disclosed to Chevron in the US 1782 and RICO Litigation. Details of several significant events and relevant materials within Ecuador are therefore missing from the evidence adduced by the Parties in this arbitration. None of these individuals gave evidence in the RICO Litigation; they are not subject to the jurisdiction of the courts of the USA; and it was not in the power of this Tribunal or the Parties to compel their attendance as witnesses in these arbitration proceedings. Amongst this group, the leading figure in the Lago Agrio Litigation was Mr Fajardo, an Ecuadorian lawyer of conspicuous ability and industry who worked closely with Mr Donziger.
4.36.
(4) Dr Guerra: Dr Alberto Guerra Bastidas testified under oath at the Track II Hearing, called by the Claimants, cross-examined by the Respondent and questioned by the Tribunal.17 The Respondent strongly impugned his credibility as a witness. Dr Guerra also testified under oath in the RICO Litigation and at the RICO trial in New York, where he was deposed and also cross-examined.18 Dr Guerra's testimony in the form of his several written witness statements, depositions and oral testimony was adduced by the Claimants in this arbitration.
4.37.
In the Tribunal's view, particular caution is required in assessing Dr Guerra's testimony. In the past, Dr Guerra has conducted himself with less than probity. For the present, whilst the Claimants have taken steps to protect the integrity of his testimony (in this and other related legal proceedings), there exists still a risk that Dr Guerra could colour his testimony to favour the Claimants as his benefactors during his exile from Ecuador.
4.38.
Yet, whatever happened in the past and however great that incentive might be, having seen and heard him in person subject to vigorous cross-examination by the Respondent, the Tribunal considers that Dr Guerra was a witness of truth in his testimony at the Track II Hearing. The Tribunal has therefore relied upon his testimony where it can be corroborated by other evidence, at least in part. The Tribunal also notes that, in one material respect regarding the conduct of Respondent's executive branch towards the Lago Agrio Litigation, Dr Guerra gave evidence at the Track II Hearing that unequivocally supported the Respondent's case (to which the Tribunal returns below).

C: Ecuador's Oriente and its Inhabitants

4.39.
The Oriente area of Ecuador is situated in the eastern part of the country, within the Amazon basin, bordering on Columbia (to the north) and Peru (to the south). In describing the Oriente and its inhabitants, the Tribunal can do no better than to cite the work of Professor Kimerling and her colleagues in Amazon Crude, written more than 25 years ago (with footnotes here omitted):19

"The tropical forests of the Oriente are among the most biologically diverse natural ecosystems on earth - a treasure trove of rare and unique species and a potential source of medicines, fruits, nuts, and other forest foods and products. Ecuador's ancient rain forests lie at the headwaters of the Amazon River system and help control flooding and erosion, even in the river's lower reaches. The Oriente's forests also help regulate the region's rainfall and climate. The forest is a storehouse of carbon. When it is burned or cleared, carbon dioxide is released into the atmosphere, heightening the potential for global warming. The rain forests of the Oriente are also home to the region's indigenous peoples who depend on the forest for their livelihoods. Without the forest, Amazonian peoples would be threatened with cultural and, in some cases, physical extinction …".

"Ecuador's Oriente has a rich heritage of indigenous cultures and is home to eight groups of indigenous people. Estimates of the Oriente's indigenous population range from 90,000 to 250,000 – 25 to 50 percent [of] the region's total population. Two groups, the Quichua and the Shuar, together account for the great majority of indigenous people in the Oriente. The balance of the population is found among the Achuar, Cofan, Huaorani, Shiwiar, Secoya, and Siona. The Huaorani number roughly 1,580 individuals, the Shiwiar some 600, and together the Secoya and Siona number about 350. The Cofan population, once 15,000, is now approximately 300 [citation omitted]."

"Indigenous peoples have lived in Amazonia for thousands of years in harmony with their rain forest environment. Since the Spanish arrived in Ecuador nearly 500 years ago, the Oriente has been a magnet for fortune-seekers and missionaries. Spanish adventurers first entered upper Amazonia in what is now Ecuador, and the first mission bases were established there in the sixteenth century. It was not until the rubber extraction boom began in the late 1800s, however, that dreams of easy wealth first came true in Amazonia. A handful of 'rubber barons' became rich, but at great expense to the people. Their atrocities throughout Amazonia are well-documented. Thousands of indigenous people in Ecuador, Peru, and Colombia were killed [citation omitted]. The boom ended in the early 1900s, when rubber seeds were smuggled out of Brazil and successfully cultivated on plantations in Malaysia."

4.40.
This case concerns only a part of Ecuador's Oriente, a former concession area in the north-east close to the Colombian border, near the town of Lago Agrio in the Province of Sucumbíos (see the map in Annex 6 to this Part IV below).

D: Ecuador's Government and Judiciary

4.41.
(1) The Ecuadorian Government: From 1964 onwards, Ecuador had a succession of governments of different political and economic persuasions. In February 1964, when the 1964 Concession Agreement was executed, Ecuador was governed by a military junta. It was succeeded by another military junta. In 1969, President José Ibarra became the President of Ecuador. In 1972, a military junta took power in Ecuador under General Guillermo Rodríguez Lara. During this régime, the 1973 Concession Agreement was executed.
4.42.
In 1979, President Jaime Roldós Aguilera took office as the President of Ecuador, succeeded (on President Roldós' death) by President Osvaldo Hurtado Larrea in 1981. In 1984, President León Febres Cordero Rivadeneira took office as President of Ecuador, followed in 1988 by President Rodrigo Borja Cevallo and in 1992 by President Sixto Durán Ballén. During this régime, the Aguinda Litigation was commenced in New York in 1993; and the 1995 Settlement Agreement was executed, as also the 1995 Remedial Action Plan.
4.43.
In 1996, President Abdalá Bucaram took office as President of Ecuador, later (in February 1997) removed from office by the Congress and succeeded by an interim presidency, that included President Fabian Alarcón. In 1998, President Jamil Mahuad took office as the President of Ecuador, later forced into exile by a military coup in January 2000. During these régimes, the 1998 Final Release was executed.
4.44.
In 2002, President Lucio Gutiérrez took office as the President of Ecuador, but was later removed from office by the Congress in 2005 and succeeded by an interim presidency under President Alfredo Palacio. During the early part of this régime, the Lago Agrio Litigation was commenced in Ecuador in 2003.
4.45.
In January 2007, President Rafael Correa took office as the President of Ecuador, being re-elected in 2009 and 2013. During this régime, the Lago Agrio Court, the Lago Agrio Appellate Court and the Cassation Court issued their respective judgments in 2011, 2012 and 2013 respectively. President Correa had left office (in 2017) at the time of the Constitutional Court's Judgment (2018).
4.46.
Until recently, at least, Ecuador was a country marked by political, economic and institutional instability that began long before President Correa's election in 2007.
4.47.
The Claimants' case, as regards the Respondent's executive branch, is directed principally at President Correa and his political administration during the period from 2007 onwards, during the pendency of the Lago Agrio Litigation.
4.48.
(2) The Ecuadorian Judiciary : The relevant court in the Oriente, the Sucumbíos Provincial Court of Justice of Nueva Loja in Lago Agrio (the "Lago Agrio Court"), operated on a meagre budget under a swift succession of presiding judges responsible for the Lago Agrio Litigation. It was not designed for and had never previously experienced any case of the size, duration, complexity and controversy comparable to the Lago Agrio Litigation. At the Track II Hearing, the Respondent's Counsel stated that the Lago Agrio Litigation grew to become 2,000 times the size of the typical Ecuadorian lawsuit.20
4.49.
The Lago Agrio Litigation was heard by the Lago Agrio Court before a succession of Lago Agrio Judges between May 2003 and March 2011, a period of almost eight years; namely: (i) Judge Guerra (13 May 2003 – 3 February 2004), (ii) Judge Novillo (4 February 2004 – 1 February 2006), (iii) Judge Yánez (2 February 2006 – 2 October 2007), (iv) Judge Novillo, again (3 October 2007 – 24 August 2008), (v) Judge Núñez (25 August 2008 – 20 October 2009), (vi) Judge Zambrano (21 October 2009 – 11 March 2010), (vii) Judge Ordóñez (12 March 2010 – 10 October 2010) and lastly (viii), Judge Zambrano, again (11 October 2010 – 29 February 2011). It was Judge Zambrano who issued the Lago Agrio Judgment and its Clarifying Order on 14 February 2011 and 4 March 2011 respectively.
4.50.
Judges Núñez and Judge Ordóñez were recused as judges in the Lago Agrio Litigation, respectively in August 2009 and October 2010. Unconnected with the Lago Agrio Litigation, Judge Guerra was dismissed from the Ecuadorian judiciary in May 2008. In 2012, also unconnected with the Lago Agrio Litigation, one year after the Lago Agrio Judgment, Judge Zambrano was also dismissed from the Ecuadorian judiciary.
4.51.
The Claimants' case, as regards the Ecuadorian judiciary, is directed principally at Judge Zambrano during the two periods when he presided over the Lago Agrio Litigation, from (i) October 2009 to March 2010 and (ii) October 2010 to March 2011.
4.52.
It is necessary to note that the Lago Agrio Court operated on limited resources. From his time as a judge of the Lago Agrio Court, Dr Guerra gave, as an example, the fact that even court seals had to be procured by the judge or clerk using their own money.21 The Tribunal also notes that Judge Zambrano had personally to arrange for a temporary student secretary, ostensibly at his own immediate expense, whilst presiding over the Lago Agrio Litigation. He had no law clerk or legal assistant.
4.53.
More generally, the Tribunal also refers to part of the statement made by the Respondent's Attorney-General at the Jurisdictional Hearing, as recorded in its Third Interim Award. There, the Attorney-General stated (as translated into English):22

"… As a first point, I would like to talk about the present justice system in Ecuador. In the year 2008, the latest Constitutional Assembly in Ecuador as an expression of sovereign expression of the Ecuadorian nation approved the new Constitution that rules our country at the moment …

In terms of the justice administration, the new Constitution consolidated previous efforts of the judicial reform of Nineties. Although still we are not in the position that we would like to be, we are achieving important progress in this ambit. First of all, we have to concentrate the existence of Courts and other Tribunals to marginal places allowing better access to justice. [Secondly,] There is an improvement in justice efficiency in relation to the number of cases that are resolved. Thirdly, we have achieved greater transparency and publicity in terms of the activities of the judiciary; and, fourthly, we have developed norms that rules behaviour of judges and lawyers.

In this way, in our system of justice is an improvement. There is advancement. We continuously improve trying to achieve high standards, standards of efficiency for the benefit of the Ecuadorian society.

… I accepted my designation, and I have done my job as Procurador of the State of the Republic of Ecuador convinced and respectful of the autonomy of the functions of the State because I am convinced of the independency of the justice system of my country and the process of change. But by the same token I am very conscious of the difficult problems affecting our systems still. We still have delays in processes in front of our courts. We have complaints against dishonest Courts, and we have problems of salaries for judges and magistrates and lawyers. But I am conscious of our problems.

… We know our deficiencies, but we are working to correct them."

4.54.
There was another factor especially relevant to Judge Zambrano: Judge Zambrano was not experienced in handling and deciding civil cases, let alone large and complex cases.

E: The 1964 and 1973 Concessions

4.55.
On 21 February 1964, the Respondent granted oil exploration and production rights in Ecuador's Oriente region to TexPet (a subsidiary of Texaco) and the Ecuadorian Gulf Oil Company (a subsidiary of Gulf) under a written concession made with these companies' local subsidiaries operating as a Consortium ("the 1964 Concession Agreement).23 TexPet was the "Operator" for the Consortium under the Texaco-Gulf Joint Operating Agreement of 1 January 1965.24
4.56.
In 1967, the Consortium discovered significant deposits of crude oil in the Oriente and drilled its first wells. By 1969, the Consortium had found considerable reserves of crude oil.
4.57.
By 1972, the Consortium had developed nine oil fields and constructed an oil pipeline over the Andes to the Pacific coast (the "SOTE" pipeline).
4.58.
On 6 August 1973, the Respondent, TexPet and Gulf entered into a further concession agreement with a term expiring on 6 June 1992 ("the 1973 Concession Agreement").25 It was also agreed (inter alia) to grant an option to acquire an interest in the Consortium to the Ecuadorian State Oil Corporation, CEPE (abbreviated from Corporacion Estatal Petrolera Ecuatoriana, later succeeded by PetroEcuador).26
4.59.
The 1973 Concession Agreement imposed environmental and related obligations on the Contractors (TexPet and Gulf) and the Operator (TexPet). Pursuant to Section 46.1 (Preservation of Natural Resources), the Contractors "shall adopt all convenient measures for the preservation of the flora, fauna and other natural resources, and they all [shall] also refrain from polluting water courses, the atmosphere and the soil, under supervision of the relevant Government agencies." Section 51.1 provided: "Upon termination of this contract as a result of the expiration of its term …, the contractors shall deliver to CEPE, for no consideration and in good production conditions, all the commercially exploitable hydrocarbon reserves, any wells in activity at that moment, … and any other real and personal property that [they] acquired in connection with this contract, provided that all such property shall be in good condition." Section 40.1 provided: "The contractors shall use modern and efficient machinery, and they shall use the most adequate technology and methods in their activities so as to obtain the highest productivity in the exploitation of deposits, observing at all times the reserve preservation policy laid out by the Government…"
4.60.
In 1974, CEPE (PetroEcuador) exercised its option under the 1973 Concession Agreement, thereby acquiring a 25% stake in the Consortium.27 TexPet and Gulf each retained a 37.5% interest in the Consortium.
4.61.
On 21 December 1976: CEPE (PetroEcuador) acquired Gulf's remaining interest, thereby owning a 62.5% interest in the Consortium. (TexPet retained its 37.5% minority interest until the Consortium ended in 1992).28
4.62.
On 30 June 1990 , TexPet ceased to act as the "Operator" under the 1973 Concession Agreement, after 25 years (1965 to 1990). From 1 July 1990 onwards, PetroEcuador (by its subsidiary, Petroamazonas) became the "Operator" under the 1973 Concession Agreement.29 TexPet, as an Operator, left the Oriente in 1990.
4.63.
On 6 June 1992, the term of the 1973 Concession Agreement expired. TexPet, as a Contractor, left Ecuador. There was then no longer any presence by TexPet in the concession area or Ecuador in any capacity. Texaco (TexPet's parent company) was itself never active in the concession area. Nor was Chevron at any time, before or after 1992, engaged in activities in the concession area. (Chevron only became TexPet's ultimate parent some ten years later, after the "merger" between Texaco and Chevron in 2001).
4.64.
As at 1992, the Consortium with, as Operator TexPet (from 1965 to 1990) and CEPE/PetroEcuador (from 1990 to 1992), had developed within the concession area 16 production fields, with 321 wells, 18 production stations, 6 base camps and hundreds of miles of associated pipelines, together with the SOTE pipeline over the Andes. The Consortium's activities had generated about US$ 23.3 billion in revenues, of which about US$ 22.67 billion (97.3%) was received by the Respondent in the form of income taxes, royalties, contribution for domestic consumption and gross profit on PetroEcuador's share in the Consortium.30 TexPet itself had received about US$ 480 million in revenues.31 The Consortium had helped to make Ecuador the second largest oil exporter in Latin America (after Venezuela), doubling Ecuador's per capita GDP, but making its national budget heavily dependent on oil revenues.
4.65.
From 1992 to 2008, after TexPet's departure from Ecuador, PetroEcuador's subsequent operations in the area of the former concession in the Oriente generated about 1.2 billion barrels of crude oil, representing a market value of about US$ 57 billion.32
4.66.
The 1995 Settlement Agreement,33 the 1995 Remedial Action Plan34 and the 1998 Final Release35 addressed environmental issues arising from the 1964 and 1973 Concession Agreements. The Settlement Agreement was signed for TexPet by its Vice-President, Mr Ricardo Reis Veiga and by its legal representative, Dr Rodrigo Pérez Pallares. The 1995 Remedial Action Plan was signed for TexPet by Mr Veiga. The 1998 Final Release was signed for TexPet by Mr Veiga and Dr Pérez.
4.67.
To perform the remediation work for environmental damage under the 1995 Settlement Agreement, TexPet selected Woodward-Clyde, a well-known engineering firm specialising in environmental remediation. Woodward-Clyde prepared the Remedial Action Plan in accordance with the 1995 Settlement Agreement. The Plan identified the specific pits at each site that required remediation and the remedial action to be taken at each site. In September 1995, the Respondent, PetroEcuador, TexPet and Woodward-Clyde approved the Remedial Action Plan. Between October 1995 and September 1998, Woodward-Clyde conducted the remediation required by the 1995 Settlement Agreement and the 1995 Remedial Action Plan (at TexPet's expense).
4.68.
In all, TexPet spent approximately US$ 40 million on environmental remediation and community development in Ecuador under the 1995 Settlement Agreement and the Remedial Action Plan (together with the 1996 Municipal and Provincial Releases).
4.69.
On 30 September 1998, the Respondent, PetroEcuador and TexPet signed the Final Release (the "Acta Final"), certifying that TexPet had performed all its obligations under the 1995 Settlement Agreement.
4.70.
In its Third Interim Award, First Partial Award and Decision in this arbitration, the Tribunal has already considered at some length and made certain decisions upon the meaning and effect of the 1995 Settlement Agreement. It is unnecessary to repeat those decisions here, which remain in effect (see Annex 1 to Part 1 for the Operative Parts of the Third Interim Award, First Partial Award and Decision).

F: Crude Oil Pollution in the Oriente

4.71.
There is today crude oil pollution in the former concession area of the Oriente, including pollution lying close to human habitation. The Tribunal has seen such pollution, albeit only briefly during its site-visit to four sites in the former concession area in June 2015.36 More significantly, the fact of such pollution has never been denied by the Claimants themselves. Rather, the technical and legal issues concern the nature, effect, timing and cause of such pollution, including the role played by PetroEcuador (both before and, particularly, after TexPet's departure from the concession area as Operator in 1990).
4.72.
The origin of such crude oil pollution, apart from accidental leaks and spills, derives principally from a mixture of oil and "produced water" in pits, subject to run-off into adjoining land and water courses. It was described by the Respondent (with its expert Dr Garvey) as follows during the Tribunal's site-visit to the SSF-34 Well Site (The site was originally drilled in 1973 and "shut in", or abandoned, by TexPet in 1983; it then comprised a plugged well and three pits; and, where cleared of encroaching jungle, the land is currently used for subsistence farming, with chocolate cacao plants and natural papaya trees):37

"When TexPet came and drilled oil, they set up their oil rig here where the hole in the ground is; and to get to the oil it's approximately 3,000 meters deep. So 9 to 10,000 feet is where the oil-producing layers are in this area. To drill down that far, there's a significant amount of rock and dirt that came out of the hole; and they had to have some place to put that. These are called cuttings pits or reserve pits. And this large pit over here to the side probably started off as a cuttings and reserve pit, so the debris would [be] placed immediately to the side of the well. When you're drilling a well, to get the debris to come out, you have to force drilling mud, which is a sort of a thick mud that, as you push it down, it pushes the rocks and the debris out; and to make drilling mud, you need a significant amount of water … After the well was drilled and they reached the oil layers, this pit and these reserve pits would often end up filled with oil …"

"… In order for us to find oil present to the surface, the reservoir that's supplying this oil has to be quite large because it has to have been insulated from weathering for 30 years. How was it insulated? … We have leaf litter falling on top of the pit. It prevents oxygen from penetrating into the underground; and, as a result, the oil here is effectively capped temporarily by this leaf litter and prevented from weathering. What does that mean? Well, it means that a small disturbance … that a farmer might make would very quickly release the oil back to the surface here. Additionally, a large change in the water table … could also push the oil upward above it. This may, in fact, be the reason we see oil at the surface here …".

4.73.
This general description does not include the range and complexity of the environmental issues raised by the Parties and their respective expert witnesses in regard to crude oil pollution in the former concession area, as also the legal issues arising from such pollution and the 1995 Settlement Agreement.

G: The Lawsuits, Arbitrations, Prosecutions and Investigations

4.74.
The crude oil pollution in the concession area has given rise to extensive legal disputes over the last 25 years, producing multinational lawsuits and arbitrations on a scale unprecedented in the collective experience of this Tribunal. For ease of reference later, it is necessary to list these principal lawsuits and arbitrations at the outset. The Tribunal here also addresses the criminal prosecutions and investigations in Ecuador.
4.75.
(1) The Aguinda Litigation (New York): The Aguinda Complaint was filed in the District Court for the Southern District of New York on 3 November 1993. It pleaded a claim by the Aguinda Plaintiffs as a putative (uncertified) class action under the USA's Federal Rules of Procedure, by named individuals and "on behalf of a class of all others similarly situated" for personal injuries and property damage caused by the defendant's wrongdoing.38 The original defendant was Texaco.
4.76.
As pleaded, the named individuals and unnamed class members estimated as numbering 30,000 were all resident in Ecuador from 1972 onwards within a geographical area defined by latitude and longitude, south of the Colombian border.39 This complaint asserted individual civil claims for personal injury and property damage, aggregated as members of the same putative class. The causes of action were pleaded in tort, including negligence, public nuisance, private nuisance, strict liability, trespass and civil conspiracy, with relief claimed as compensatory damages, punitive damages and equitable relief to remedy the alleged pollution and contamination "of the plaintiffs' environment and the personal injuries and property damage caused thereby" (page 4).
4.77.
As decided by this Tribunal in its Decision on Track 1B,40 the Aguinda Complaint in New York was not a 'diffuse' claim. This much, at least, is common ground between the Parties.41 As the Claimants acknowledged at the April Hearing (on Track 1B): "… both Parties agree that what was at issue in Aguinda were individual claims, aggregate[d] individual claims."42
4.78.
As recorded by the US Court of Appeals for the Second Circuit in its judgment of 5 August 1997, the Aguinda Plaintiffs' claims for equitable relief in the Complaint were later elaborated: "Though the complaints make only a general demand for equitable relief, the plaintiffs clarified their demand somewhat during discovery. The relief they seek includes the following: undertaking or financing environmental cleanup, to include access to potable water and hunting and fishing grounds, renovating or closing the Trans-Ecuadoran Pipeline, creation of an environmental monitoring fund, formulating standards to govern future Texaco oil development, creation of a medical monitoring fund, an injunction restraining Texaco from entering into activities that run that run a high risk of environmental or human injuries, and restitution."43
4.79.
By its judgment dated 12 November 1996, the US District Court for the Southern District of New York (Judge Rakoff) dismissed the Aguinda Complaint.44 Apart from applying the doctrine of forum non conveniens (in favour of the Ecuadorian Courts), the judgment referred to the Aguinda Plaintiffs' failure to join, as indispensable parties, PetroEcuador and Ecuador:

"… this Court further concludes that there is another independently- sufficient reason why this action must be dismissed: plaintiffs' failure to join indispensable parties, namely, Petroecuador and the Republic of Ecuador. The extensive equitable relief sought by the plaintiffs-ranging from total environmental 'cleanup' of the affected lands in Ecuador to a major alteration of the consortium's TransEcuador pipeline [i.e. the "SOTE" pipeline] to the direct monitoring of the affected lands for years to come cannot possibly be undertaken in the absence of Petroecuador, which has owned 100% of the consortium since 1992 and 100% of the pipeline since 1986, or the Republic of Ecuador, which has helped supervise the consortium's activities from the outset and which owns much, if not all, of the affected lands. Petroecuador and the Republic of Ecuador thus are necessary 'persons to be joined if feasible' under either and both prongs of Fed.R.Civ.P. 19(a)

4.80.
By its judgment of 12 August 1997, the US District Court for the Southern District of New York (Judge Rakoff) denied Ecuador's request to join the Aguinda Complaint as an intervener.45
4.81.
The Aguinda Plaintiffs (and Ecuador) appealed to the US Court of Appeals for the Second Circuit. By its judgment of 5 October 1998, the Second Circuit vacated Judge Rakoff's orders and remitted the case to him at the US District Court for reconsideration.46 It held (inter alia) that dismissal on the ground of forum non conveniens was erroneous in the absence of a condition requiring Texaco to submit to jurisdiction in Ecuador.
4.82.
By its judgment dated 30 May 2001, the US District Court for the Southern District of New York (Judge Rakoff) dismissed the Aguinda Complaint for a second time.47 The Court ordered an unconditional stay on the ground of forum non conveniens because the case had "everything to do with Ecuador and nothing to do with the United States [of America]". As there also recorded: "Following remand [by the Second Circuit to Judge Rakoff], Texaco provided the missing commitment to submit to the jurisdiction of the courts of Ecuador" (page 4 of the judgment).
4.83.
This undertaking in favour of Ecuadorian jurisdiction took the form of a Notice of Agreements made by Texaco on 11 January 1999.48 It provides (in material part) as follows:

"Section A - Actions to Which Agreements Apply: Texaco Inc.'s agreements herein apply only to a lawsuit that meets all the following conditions:

1. The lawsuit must be brought by a named plaintiff in Aguinda. et al. v, Texaco Inc., Case No. 93 Civ. 7527 (JSR) (hereafter "Aguinda").

2. The lawsuit must have been filed in an appropriate court of competent civil jurisdiction in Ecuador;

3. The lawsuit must arise out of the same events and occurrences alleged in the Aguinda Complaint filed in this Court on November 3, 1993.

4. To insure prompt notice, a copy of each Complaint intended to be filed by Aguinda plaintiffs (or any of them) in Ecuador must have been delivered to Texaco Inc.'s designated representative in Ecuador identified in Section B(1) below not later than the actual date on which it is filed.

Section B - Agreements: With respect to any lawsuit that meets the conditions set forth above (a "Foreign Lawsuit"), Texaco Inc. hereby makes the following agreements:

1. Texaco Inc. will accept service of process in a Foreign Lawsuit in accordance with the applicable law of Ecuador. Texaco Inc.'s designated representative in Ecuador authorized to accept service of process in a Foreign Lawsuit shall be: [Name and address of Texaco's representative in Quito Ecuador here omitted]. The authority of [Texaco's representative] to accept service of process in a Foreign Lawsuit will become effective upon final dismissal of this action and judgment by this Court. (The judgment shall become "final" upon the exhaustion of all available appeals or, if no appeal is filed, the time for filing appeals has expired.)

2. 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.

3. In any such Foreign Lawsuit, Texaco Inc. will waive any statute of limitations-based defense that matured during the period of time between: (a) the filing date of the Aguinda Complaint in this Court (i.e. November 3, 1993), and (b) the 60th day after the dismissal of this action and judgment becomes final, as defined in Section B(1) above. Texaco Inc., however, is not waiving any statute of limitations-based rights or defenses with respect to the passage of time prior to November 3, 1993, and Texaco Inc. expressly reserves its right to contend in a Foreign Lawsuit that plaintiffs' claims were barred, in whole or in part, by the applicable statute of limitations as of November 3, 1993 when they filed their Complaint in this Court.

4. Texaco Inc. agrees that discovery conducted to date during the pendency of Aguinda in this Court may be used by any party in a Foreign Lawsuit, including Texaco Inc., to the same extent as if that discovery had been conducted in proceedings there, subject to all parties' rights to challenge the admissibility and relevance of such discovery under the applicable rules of evidence.

5. Texaco Inc. agrees to satisfy a final judgment (i.e. 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. Prac. L&R § 5301-09 (McKinney 1978)."

(This undertaking, as varied, came into effect with the eventual stay of the Aguinda Litigation on 16 August 2002, i.e. after Texaco's "merger" with Chevron in 2001).

4.84.
In 2001, the Aguinda Plaintiffs appealed from Judge Rakoff's dismissal to the US Court of Appeals for Second Circuit. By its judgment dated 16 August 2002, the Second Circuit affirmed, as modified, Judge Rakoff's Order.49
4.85.
The Second Circuit recorded (page 4): "Texaco consented to personal jurisdiction in Ecuador as to the Aguinda plaintiffs … in … Ecuador …. Texaco stipulated it would waive its statute of limitations defenses that matured during the period of time between the filing of the complaint and the 60th day after the dismissal of the action by the district court. It preserved such defenses, however, with respect to the passage of time prior to the initial filing of the complaints. It also offered to stipulate that plaintiffs could utilize the discovery obtained thus far in resumed proceedings in Ecuador or Peru. Texaco then renewed its motion to dismiss by reason of forum non conveniens." The Second Circuit decided (page 8): "The district court's judgment dismissing for forum non conveniens is affirmed, subject to the modification that the judgment be conditioned on Texaco's agreement to waive defenses based on statutes of limitation for limitation periods expiring between the institution of these actions [i.e. 3 November 1993] and a date one year subsequent to the final judgment of dismissal. " The Tribunal understands that Texaco agreed to vary its condition regarding limitation, as directed by the Second Circuit.
4.86.
Much later, in 2011, the US Court of Appeals for the Second Circuit decided in the New York Stay Legal Proceedings (described below) that Texaco's undertaking (of 1999, as varied) bound Chevron, albeit a distinct and separate legal person under the laws of the USA. The Second Circuit held :50

"Chevron Corporation claims, without citation to relevant case law, that it is not bound by the promises made by its predecessors in interest Texaco and ChevronTexaco, Inc. However, in seeking affirmation of the district court's forum non conveniens dismissal, lawyers from Chevron-Texaco appeared in this Court and reaffirmed the concessions that Texaco had made in order to secure dismissal of Plaintiffs' complaint. In so doing, Chevron-Texaco bound itself to those concessions. In 2005, Chevron-Texaco dropped the name "Texaco" and reverted to its original name, Chevron Corporation. There is no indication in the record before us that shortening its name had any effect on Chevron-Texaco's legal obligations. Chevron Corporation therefore remains accountable for the promises upon which we and the district court relied in dismissing [the Aguinda] Plaintiffs' action."51

4.87.
The Tribunal acknowledges the continuing controversy as to whether or not Texaco's 1999 undertaking (as varied) binds Chevron, as distinct from Texaco. Although other legal materials suggest otherwise, this decision of the Second Circuit ostensibly binds both Chevron and the Respondent as a matter of issue (or collateral) estoppel and judicial estoppel under the laws of the USA. (For reasons explained in Part VIII below, the Tribunal does not think it necessary or appropriate to decide this controversy, one way or the other, in this Award).
4.88.
During the Aguinda Litigation, in support of its case on forum non conveniens, Texaco generally lauded the Ecuadorian judicial system as the forum for its disputes with the Aguinda Plaintiffs. In the words of one of Texaco's expert witnesses testifying in 2000: "Despite isolated problems that may have occurred in individual criminal proceedings, Ecuador's judicial system is neither corrupt nor unfair. Such isolated problems are not characteristic of Ecuador's judicial system, as a whole".52
4.89.
(2) The Lago Agrio Litigation (Ecuador): The Lago Agrio Plaintiffs' Complaint against Chevron as the sole named defendant is, in its original Spanish version, a document of 17 pages.53 It was filed with the Lago Agrio Court on 7 May 2003. By this time, the "merger" between Texaco and Chevron had taken place (in 2001).
4.90.
The Lago Agrio Complaint begins with the list of the 48 individual plaintiffs, all being (as translated into English) "domiciled in the Secoya Community of San Pablo de Aguarico, Canton of Shushufundi, Province of Sucumbíos" and "Ecuadorian nationals engaged in farming activities." These plaintiffs are described as having been the same Aguinda Plaintiffs in the stayed Aguinda Litigation New York, having there sought "enforcement of their own rights as well as those of other people in the same class, as the term is used in [New York's] procedural rules to designate the people who might find themselves in an identical legal situation with regard to the specifics of the lawsuit [i.e. the Aguinda Litigation]" (Paragraph 8).
4.91.
Part I of the Lago Agrio Complaint pleads the alleged "background" to the case, including the 1998 Final Release (forming part of the 1995 Settlement) and the "merger" between Texaco and Chevron. Part II pleads the alleged "contaminating methods employed by Texaco". Part III pleads the alleged consequential "damage and the affected population". Its Paragraph III.2 pleads, as a matter of causation, the alleged consequences to the health and life expectancy of the population, including but not expressly so, the Lago Agrio Plaintiffs. Part IV pleads "Texaco Inc.'s liability". In the latter's Paragraph IV.9, Texaco's liability and remedial obligation were allegedly "passed on to" Chevron by virtue of the "merger" between the two corporations" described in Paragraph I.12. Thus far, apart from the allegations directed expressly against Chevron, there is a broad similarity between the complaint in the Aguinda Litigation and the complaint in the Lago Agrio Litigation.
4.92.
Part V of the Lago Agrio Complaint pleads the "legal basis" for the claim under the laws of Ecuador. It invokes Articles 2241 and 2256 of the Civil Code (Paragraph V.1); Articles 23.6 and 86 of the Constitution (Paragraph V.3(a)); Article 2260 of the Civil Code, later re-numbered as Article 2236 (Paragraph V.1(b)); and Articles 41 and 43 of the 1999 Environmental Management Act, the "EMA" (Paragraph V.3(c)).54 These EMA provisions are alleged to establish "a public action" ("acción pública") based on the breach of environmental laws" and "the right of legal entities, individuals or human groups bound by a common interest and directly affected by a harmful action or omission, to bring an action for damages based on the harm to their health and environment, including the biodiversity along with its constituting elements."55
4.93.
Part VI of the Lago Agrio Complaint pleads the "prayer for relief". Such relief is claimed by the Lago Agrio Plaintiffs "in our capacity as members of the affected communities and in safeguard of their recognized collective rights".56 The relief claims specific remedial and ancillary works, with the necessary funds to be paid by Texaco to the Amazon Defense Front (the "ADF"), together with 10% of such value payable (with litigation costs) to the ADF "by express request of the plaintiffs". It does not expressly claim compensation for personal harm particular to the individual Lago Agrio Plaintiffs, or any of them. Part VI addresses "jurisdiction, amount of claim and procedure", invoking (inter alia) Articles 42(2) and 43 of the EMA. Part VIII addresses "notices".
4.94.
The Lago Agrio Court issued its Judgment in the Lago Agrio Litigation on 14 February 2011 (with its Clarification Order of 4 March 2011), adverse to Chevron. Chevron initiated three successive appeals against the Lago Agrio Judgment, resulting in the Judgments of the Appellate Court (2012), the Cassation Court (2013) and the Constitutional Court (2018).
4.95.
(3) The "Commercial Cases" Arbitration (The Hague) This arbitration, known as the "Commercial Cases Arbitration", was brought under Article VI of the Treaty, applying the UNCITRAL Arbitration Rules (1976) before the Permanent Court of Arbitration at The Hague, the Netherlands (PCA Case No. 2007-02/AA277), by Chevron and TexPet as the claimants, against Ecuador, as the respondent. This UNCITRAL arbitration was commenced on 21 December 2006.
4.96.
The Commercial Cases tribunal made an interim award on jurisdiction of 1 December 2008, a partial award on the merits of 30 March 201057 and a final award of 31 August 2011.58 The tribunal rejected the respondent's jurisdictional objections; the tribunal found a breach by the respondent of its obligation under Article II(7) of the Treaty ("effective means"),59 through the undue delay of the Ecuadorian courts in deciding TexPet's seven cases asserting contractual claims for payment under the two Concession Agreements of 1964 and 1973; and the tribunal held the respondent liable for damages in the principal amount of US$ 77.74 million, together with pre-award and post-award compound interest.
4.97.
Under challenge by the respondent, the awards in the Commercial Cases were upheld by the Dutch courts: namely, the Hague District Court (2012), the Hague Court of Appeal (June 2013) and the Hoge Raad (26 September 2014).60 In the USA, the US District Court for the District of Columbia recognised and enforced the final award under the 1958 New York Convention in 2013.61 The US Court of Appeals for the District Court of Columbia Circuit dismissed the respondent's appeal on 4 August 2015.62
4.98.
To the Tribunal's understanding, on 22 July 2016, Ecuador (as the respondent) paid to Chevron and TexPet the sums due under the awards made in the Commercial Cases Arbitration.63
4.99.
Apart from the Commercial Cases tribunal's interpretation of Article II(7) of the Treaty (to which the Tribunal returns in Part VII below), this Tribunal does not consider that the Commercial Cases Arbitration provides any specific guidance to the relevant issues in this arbitration.
4.100.
As to Article II(7), the Tribunal notes that the Commercial Cases tribunal decided in its Partial Award that Ecuador's obligation as to "effective means" constitutes a lex specialis and not a restatement of customary international law on denial of justice, that the failure of domestic courts to enforce rights effectively would constitute a violation of Article II(7); and that the host State's treaty obligation was a positive obligation to provide "effective means", as opposed to a mere negative obligation not to interfere in the functioning of those means.64 It also notes the Commercial Cases tribunal's reference to the "measure of deference" to be afforded to a domestic judicial system and that the tribunal was "not empowered [by Article II(7) of the Treaty] to act as a court of appeal reviewing every individual alleged failure of the local judicial system de novo."65 (The Tribunal returns to these matters also, in Part VII, below).
4.101.
(4) The Ecuador-USA Treaty Arbitration (PCA): This was an inter-state arbitration brought on 28 June 2011 by Ecuador (as the claimant) against the USA (as respondent) under Article VII of the Treaty providing for State-State arbitration,66 resulting in an award dated 29 September 2012 dismissing Ecuador's claim for want of jurisdiction.67 That claim concerned (inter alia) the interpretation of "effective means" in Article II(7) of the Ecuador-USA Treaty (i.e. the same Treaty in this case), as decided in the partial award issued in the Commercial Cases Arbitration.
4.102.
(5) The AAA Arbitration (New York): This arbitration was commenced in June 2004 before the American Arbitration Association (the "AAA") in New York under an arbitration agreement allegedly contained in the 1965 Joint Operating Agreement (the "1965 JOA") and a draft JOA of 1974 under the 1964 and 1973 Concession Agreements (i.e. it was not brought under the Treaty).
4.103.
The claimants were Chevron and TexPet, asserting a contractual indemnity for environmental damage from the respondents, Ecuador and PetroEcuador. The respondents applied in New York to the US District Court for the Southern District of New York for a stay of the AAA Arbitration. By orders of the US District Court (Judge Sand), the AAA Arbitration was partially stayed in June 2007,68 affirmed on appeal by the US Court of Appeals for the Second Circuit on 7 October 2008.69 The US Supreme Court denied Chevron's petition for a writ of certiorari in June 2009.70
4.104.
(6) The New York Stay Legal Proceedings (New York): On 14 January 2010, the Respondent and the Lago Agrio Plaintiffs applied to the US District Court for the Southern District of New York to stay this arbitration between the Claimants and the Respondent under the Treaty. Their application was rejected by the District Court (Judge Sand) on 16 March 2010.71 On appeal, the District Court's judgment was upheld by the US Court of Appeals for the Second Circuit on 17 March 2011.72
4.105.
In its judgment, the Second Circuit recognised the autonomous nature, or 'separability', of the Treaty from the arbitration agreement between the Claimants and the Respondent derived from the Treaty:

"At the outset, we note that Chevron is not a party to the BIT. Unlike the more typical scenario where the agreement to arbitrate is contained in an agreement between the parties to the arbitration, here the BIT merely creates a framework through which foreign investors, such as Chevron, can initiate arbitration against parties to the Treaty. In the end, however, this proves to be a distinction without a difference, since Ecuador, by signing the BIT, and Chevron, by consenting to arbitration, have created a separate binding agreement to arbitrate."73

4.106.
(7) The Section 1782 Litigation (USA): Beginning in December 2009, Chevron initiated numerous legal proceedings in several US District Courts in the USA under U.S.C. Section 1782 in order to obtain discovery for use in the Lago Agrio Litigation, the Veiga-Pérez Criminal Prosecutions and this arbitration. These proceedings were directed to (inter alios) Mr Donziger, Mr Berlinger, Mr Bonifaz, Mr Kohn, Mr Wray, Dr Calmbacher, Mr Champ, Mr Rourke, Stratus Consulting Inc., E-Tech and Banco Pichincha. The Respondent, in turn, later initiated legal proceedings in the USA under U.S.C. Section 1782 in order to obtain discovery for use in this arbitration, including (as later described in Part VII below) Mr Connor.
4.107.
Title 28, Section 1782 of the U.S. Code permits a US district court, upon the application of any interested person, to order a person found or residing within the district "to give testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal". The factors to be considered in exercising this discretionary power are set out in the US Supreme Court's judgment in Intel Corp. v Advanced Memo Devices Inc. 542 US 241 (2004). Section 1782 does not apply to persons not subject to the jurisdiction of the courts of the USA.
4.108.
As listed in the RICO Judgment (page 1), the reported US court decisions under Section 1782, relevant to the RICO Litigation and this arbitration, include the following : In re Chevron Corp., 709 F.Supp.2d 283 (S.D.N.Y.) ("Berlinger 1782 I"), aff'd sub nom., Chevron Corp v. Berlinger, 629 F.3d 297 (2d Cir.2010); In re Chevron Corp., 736 F.Supp.2d 773 (S.D.N.Y.2010) ("Berlinger 1782 II"); In re Chevron Corp., 749 F.Supp.2d 135 (S.D.N.Y.) ("Donziger 1782 I"), fuller opinion, In re Chevron Corp., 749 F.Supp.2d 141 (S.D.N.Y.) ("Donziger 1782 II, on reconsideration, 749 F.Supp.2d 170 (S.D.N.Y.) ("Donziger 1782 II") aff'd sub nom., Lago Agrio Plaintiffs v Chevron Corp., Nos. 10-4341-cv, 10-4405-cv (CON), 2010 WL 5151325 (2d Cir. Dec. 15 2010).74
4.109.
(8) The RICO Litigation (New York): This lawsuit was brought by Chevron on 1 February 2011 before the US District Court for the Southern District of New York against Mr Donziger and the Law Offices of Steven R. Donziger (collectively, the "Donziger defendants"), Pablo Fajardo, Luis Yanza, Stratus Consulting, Douglas Beltman, Anne Maest, 47 of the Lago Agrio Plaintiffs and several others.75 Chevron claimed, as originally pleaded, damages and injunctive relief for a pattern of racketeering activity and violations of 18 USC Section 1962 and New York law.
4.110.
It is unnecessary here to address the numerous interlocutory orders and judgments made in the RICO Litigation by the US District Court for the Southern District of New York and the US Court of Appeals for the Second Circuit. As listed in the RICO Judgment, these include: Chevron Corp. v. Donziger, 768 F.Supp 581 (S.D.N.Y.2011) ("Donziger I") (granting preliminary injunction); Chevron Corp v. Donziger, No. 11 Civ.0691(LAK),2011 WL 979609 (S.D.N.Y. Mar.7,2011) ("Donziger II") (denying motion to transfer case to another judge); Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2011 WL 1408386 (S.D.N.Y. Apr. 6, 2011) ("Donziger II") (denying stay pending appeal and other relief); Chevron Corp. v. Donziger, - F. Supp. 2d - 2011 WL 1465679 (S.D.N.Y. Apr. 15, 2011) ("Donziger IV") (granting separate trial and expedited discovery on claim for declaratory judgment); Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2011 WL 1560926 (S.D.N.Y. Apr. 18, 2011) ("Donziger V") (denying motion to stay certain aspects of preliminary injunction pending appeal); Chevron Corp. v. Donziger, - F. Supp. 2d -, No. 11 Civ. 0691 (LAK), 2011 WL 1747046 (S.D.N.Y. May 9, 2011) ("Donziger VI") (denying recusal motion); Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2011 WL 2150450 (S.D.N.Y. May 31, 2011) ("Donziger VII") (granting in part and denying in part motion to intervene); Chevron Corp. v. Salazar, No. 11 Civ. 3718 (LAK), 2011 WL 2326893 (S.D.N.Y. Jun. 14, 2011) ("Salazar I") (denying motion to stay pending intervention appeal); Chevron Corp. v. Salazar, No. 11 Civ. 3718 (LAK), 2011 WL 2581784 (S.D.N.Y. Jun. 24, 2011) ("Salazar II") (denying motion to stay discovery); Chevron Corp. v. Salazar, - F. Supp. 2d -, 2011 WL 2556046 (S.D.N.Y. Jun. 28, 2011) ("Salazar III") (denying motion to compel deposition).
4.111.
The RICO trial took place before the US District Court New York (Judge Kaplan) over seven weeks from 15 October to 26 November 2013. Its proceedings were recorded by verbatim transcript.76 The District Court issued its judgment on 4 March 2014 in favour of Chevron and against the Donziger defendants.77 Not counting its lengthy appendices, the RICO Judgment extends over 485 pages. Its conclusion reads in part: "The saga of the Lago Agrio case is sad. It is distressing that the course of justice was perverted. The LAPs [Lago Agrio Plaintiffs] received the zealous representation they wanted, but it is sad that it was not always characterised by honor and honesty as well. It is troubling that …. what happened here probably means that 'we'll never know whether or not there was a case to be made against Chevron' …"
4.112.
On 8 August 2016, the Second Circuit affirmed the Judgment of the US District Court; and it dismissed the appeal by the Donziger defendants.78 For this appeal, Ecuador (not being a disputing party) submitted to the Second Circuit an amicus brief dated 8 July 2014.79
4.113.
On 19 June 2017, the US Supreme Court denied the Donziger defendants' petition of certiorari from the judgment of the Second Circuit,80 as notified by the Claimants' letter dated 29 June 2017 to the Tribunal.
4.114.
On 28 February 2018, the US District for the Southern District of New York (Judge Kaplan) issued its judgment regarding the allocation and assessment of costs incurred by the Parties in the RICO Litigation, as reserved in the RICO Judgment.81 The Court ordered Mr Donziger to pay US$ 944,463.85 to Chevron towards its legal costs.
4.115.
(9) The Huaorani Litigation (New York) : This lawsuit was brought before the New York Supreme Court on 2 September 2014 by Kempera Baihua Hunai and 41 others from the Huaorani community in the Oriente against the same Donziger defendants and the Amazon Defence Front. The plaintiffs, legally represented by Professor Judith Kimerling82, claimed from the Donziger defendants a proportional share in the proceeds of the Lago Agrio Judgment, pleading (inter alia) breaches of fiduciary duty, unjust enrichment, constructive trust and ancillary relief.
4.116.
The same plaintiffs had earlier applied to join, as interveners, in the RICO Litigation. The US District Court for the Southern District of New York (Judge Kaplan) had denied their request by order dated 14 January 2013, leaving them "free to pursue their claims in independent actions in the New York State and doubtless other courts." In this Huaorani litigation, the Donziger defendants were represented by Mr Steven Donziger. It appears that the ADF took no part in this litigation, not being subject to the non-consensual jurisdiction of the New York Courts .
4.117.
The Huaorani complaint was described, in the first instance judgment of the New York Supreme Court, as follows:

"… Broadly speaking, plaintiffs allege that Donziger and the ADF are seeking complete control of the proceeds of the Lago Agrio litigation, for their own benefit and to the detriment of the Huaorani … Plaintiffs allege that the Donziger defendants have … claimed to represent all of the indigenous people, including plaintiffs and other Huaorani, in activities related to the Lago Agrio. However, it is plaintiffs' position that plaintiffs never authorised such representation and that there is no written retainer agreement, nor any other agreement, which sets forth Donziger or ADF's obligations to plaintiffs in connection with the Lago Agrio Litigation. Nevertheless, plaintiffs allege that as a result of Donziger's and ADF's representations that Donziger is counsel for plaintiffs in the Lago Agrio litigation and that ADF brought the Lago Agrio litigation on behalf of all of the Ecuadorian people harmed by Texaco's operations, including the Huaorani, the Donziger defendants and ADF owe plaintiffs a fiduciary duty, including a duty to protect their interests in the Lago Agrio litigation, a duty to notify plaintiffs of any arrangements with third parties (investors, funders, and/or the Republic of Ecuador) regarding the proceeds of the judgment, and a duty to notify plaintiffs of enforcement efforts, settlement negotiations or any other significant developments regarding the proceeds of the litigation.

Plaintiffs claim, on information and belief, that the money that the Donziger defendants and ADF collect will be 'dissipated and funnelled to off-shore havens beyond the reach of US Courts and that the Donziger Defendants and ADF intend to assign away [the Huaorani's] interest in the Lago Agrio judgment in exchange for money'. It is plaintiffs' position that the Donziger defendants and ADF have agreements with investors and funders in exchange for interests in the judgments and that they have already collected more than $10 million by selling shares in the judgment, that the Republic of Ecuador expects to receive at least 90% of the proceeds of the judgment; and that the Donziger defendants and ADF intend to distribute the remaining proceeds of the judgment to lawyers and investors before passing the remaining money to Ecuadorian trusts controlled by ADF." (pp. 4-5).

4.118.
Whilst opposing the Huaorani plaintiffs' complaint as regards both the Court's exercise of jurisdiction and the merits, the Donziger defendants are recorded, in the judgment, as accepting: "that ADF agrees that the Huaorani people should benefit from the Lago Agrio litigation" (p.12, footnote 1). The judgment also records that the ADF executed a retainer agreement with the Donziger defendants in New York (pp. 13 & 15-16). There is no similar reference to any retainer or other agreement with the individual Huaorani plaintiffs; and, indeed, the judgment refers to Mr Donziger's "purported clients", not "clients" (p. 15).
4.119.
By its judgment issued on 29 August 2014, the New York Supreme Court stayed the lawsuit under the New York legal doctrine of forum non conveniens and dismissed the plaintiffs' complaint.83 The plaintiffs appealed to the New York Supreme Court, Appellate Division, First Department. By its judgment issued on 16 June 2015, that Court affirmed the Supreme Court's order for a stay.84
4.120.
The Huaorani Litigation is factually significant. First, it confirms that Mr Donziger, with his colleagues in Ecuador (including the ADF), had no written retainer or power of attorney to act in the Lago Agrio Litigation on behalf of any member of the Huaorani community as individuals. Second, it confirms that Mr Donziger and his Ecuadorian colleagues (including the ADF) intended that, nonetheless, the Lago Agrio Judgment should accrue (in part) for the benefit of the members of the Huaorani community as a whole.
4.121.
The Tribunal here notes again the broad language of the Lago Agrio Complaint: it alleges legal injury to and relief for all affected persons within a large geographical area, including expressly members of the Huarani community.85 The Tribunal also notes that none of the named Aguinda Plaintiffs or the named Lago Agrio Plaintiffs were members of the Huaorani community.86 (These matters are relevant to the Tribunal's later consideration of the "diffuse" nature of Chevron's legal liability in the Lago Agrio Judgment, to which the Tribunal returns in Part V below)
4.122.
(10) The Veiga-Pérez Criminal Prosecutions (Ecuador): In 2003, the Respondent's Comptroller-General initiated criminal proceedings, later to become prosecutions, against (inter alios) Mr Veiga (a national of the USA) and Dr Pérez (a national of Ecuador). These proceedings are also called "the criminal indictments" in this arbitration.
4.123.
These Criminal Prosecutions alleged "falsity in a notarial instrument" (later "ideological falsehood") under Articles 338 and 339 of the Ecuadorian Penal Code, committed by Mr Patricio Rivadeneira (the former Minister of Energy and Mines), Dr Ramiro Gordillo (the former Executive President of PetroEcuador), Mr Luis Alban Granizo (the former Manager of Petroproduccion), Mr Veiga and Dr Pérez (TexPet's Vice-President and legal representative, respectively). The alleged falsity concerned the 1995 Settlement Agreement (with associated documentation), signed by the Ministry of Energy and Mines, PetroEcuador and TexPet.
4.124.
The Lago Agrio Plaintiffs' representatives co-operated with members of President Correa's administration to bring these prosecutions in an attempt to nullify the effect of Chevron's reliance upon the 1995 Settlement Agreement as a defence in the Lago Agrio Litigation.
4.125.
For example, in her email dated 10 February 2005 to the Lago Agrio Plaintiffs' representatives, Dr Escobar described her meeting on 8 February 2005 with members of the Presidential Office, as follows:87

"… I explained to Dr González [the Legal Under-Secretary General of the Presidential Office] that …. [w]ith respect to the topic of the contract, I explained that the Attorney General's Office [sic] and all of us working on the State' s defense were searching for a way to nullify or undermine the value of the remediation contract and the final acta and that our greatest difficulty lay in the time that has passed."

(The "remediation contract" and "final acta" were references to the 1995 Settlement Agreement ad the 1998 Final Release. The "State's defense" referred to the pending AAA Arbitration in New York, described above).

4.126.
Later, in his email dated 10 February 2006 to the Lago Agrio Plaintiffs' representatives, Mr Donziger stated "… Now that we have the inspections schedule, it's time to request Ricardito [sic] Reis Veiga as a witness. Pablo [Fajardo] has the questions. We exploit that for the press to further create the image of fraud, to put a face on the fraud, perhaps during the mobilization and press conference about fraud. In the US it's going to be a bombshell with the press. We should set a date. Poor him …".88. In his email message dated 1 October 2007 to Messrs Prieto, Donziger, Yanza, Saenz and Ponce, Mr Fajardo stated: " … Today I went to the Supreme Court to look for the file on the issue regarding the prosecutor's office … Now the file is being reviewed by one of the assistants to the Chief Justice of the Supreme Court. Tomorrow we will meet with the Chief Justice of the Supreme [Court] to move this issue forward …".89
4.127.
By its decision dated 9 August 2006, for want of any evidence of criminal conduct, the Office of the Prosecutor-General dismissed these criminal prosecutions.90 However, by its decision dated 31 March 2008, "in the light of new elements", the Office of the Prosecutor-General re-opened the criminal prosecutions.91
4.128.
One of these elements included President Correa's visit to the former concession area in April 2007, organised by the Lago Agrio Plaintiffs' representatives. During his visit, the President was accompanied by Messrs Fajardo and Yanza. As reported by "A-F.L./Presidential Press":92

"Today, President Rafael Correa called upon the District Attorney of Ecuador to allow a criminal case to be heard against the Petroecuador officers who approved the petroleum remediation in Ecuador's Amazonia performed by the multinational company, Texaco. The petition was made after a visit was made to the covered pits of Well 7 (Shushufindi), supposedly remediated by the oil company in the 1990s. Residents in the area said that the oil company did not solve the problem, rather just covered the crude waste pits with dirt. Those affected emphasized that the waste also contaminates the river around which indigenous communities traditionally live. Similarly, some residents in the area stated their complaints about the activities being carried out by Petroecuador in the area. One person reported to the president and the Minister of Health, Caroline Chang, on a disease he has, allegedly linked to oil activities, asking the government for help. During the president's visit, the visitors became familiar with some sites where oil waste remains in spite of the fact that an environmental remediation was carried out. The others who participated in this visit were the Minister of Health, Caroline Chang; the Minister of Tourism, Marfa Isabel Salvador; the Minister of the Environment, Ana Alban; the Minister of Energy, Alberto Acosta, Petroecuador's president, Carlos Pareja; and the Secretary of Communication, Monica Chuji."

4.129.
By its order dated 16 September 2008, the Supreme Court (First Criminal Division) decided that the prosecutorial record be sent to the President of the Supreme Court of Justice, for trial.93 By order dated 19 September 2008, the President of the Court accepted the case for prosecution.94 Subsequently, by its lengthy opinion dated 29 April 2010 (based on 65 binders comprising 6,492 documents), the Office of the ProsecutorGeneral decided that there was relevant evidence of criminal conduct, by (inter alios) Mr Veiga and Dr Pérez, requesting that a summons for trial be issued to the defendants by the National Court of Justice (First Criminal Division).95 By its order dated 15 February 2011, the Court fixed 2 March 2011 as the date of the preliminary hearing in Quito.96 By its order dated 24 February 2011, the Court adjourned that hearing.97
4.130.
By its order dated 1 June 2011, after the resumed preliminary hearing, the National Court of Justice (First Criminal Division) declared the nullity of the Criminal Prosecutions against (inter alios) Mr Veiga and Dr Pérez.98 By that date, the Lago Agrio Judgment and its Clarification Order had been issued (on 14 February and 4 March 2011).
4.131.
In September 2013, the Respondent resumed criminal investigations of individuals who signed the 1995 Settlement Agreement and related documentation. These proceedings were and remain confidential under Ecuadorian law. The Tribunal has not been informed whether any of Chevron's representatives are the target of such investigations.99
4.132.
(11) Enforcement Litigation (Ecuador) : Since 30 May 2012, the Lago Agrio Plaintiffs have sought to enforce the Lago Agrio Judgment in (i) Ecuador, (ii) Canada, (iii) Brazil and (iv) Argentina. As regards Canada, Brazil and Argentina, these enforcement proceedings have already been summarised in Annex 4 to Part I above.
4.133.
As to Ecuador, on 1 March 2012, the Lago Agrio Appellate Court declared the Lago Agrio Judgment enforceable; on 3 August 2012, the Lago Agrio Court ordered Chevron to pay the judgment debt within 24 hours; and on 13 October 2012, the Lago Agrio Court ordered that the Lago Agrio Judgment's execution "be applicable to the entirety of the assets of Chevron Corporation, until such time as the entire obligation has been satisfied." Assets subject to the attachment order included Chevron's subsidiaries' intellectual property assets in Ecuador (including certain trademarks owned by Chevron Intellectual Property LLC, indirectly owned by Chevron), bank accounts in Ecuador and bank transfers through the Ecuadorian banking system, in addition to the modest funds found in TexPet's bank account at Banco Pichincha in Ecuador (US$ 358.00). On 25 October 2012, the Court extended the attachment order to additional trademark and intellectual property in Ecuador indirectly owned by Chevron. (At the Track II Hearing, the Tribunal was informed that these trademarks in Ecuador had no commercial value).100
4.134.
On 27 June 2013, the Lago Agrio Court granted the Lago Agrio Plaintiffs' application to garnishee the payment due from the Respondent to Chevron and TexPet under the awards issued in the Commercial Cases Arbitration.101 This order was notified to the Respondent under the Court's Order of 12 July 2016. On 21 July 2016, the Order was discharged by the Court upon the application to the Court by Mr Fajardo acting as the Lago Agrio Plaintiffs' representative. With the Respondent's payment of the Commercial Cases awards to Chevron and TexPet on 22 July 2016, these garnishee proceedings came to an end without any benefit to the Lago Agrio Plaintiffs.
4.135.
The Lago Agrio Plaintiffs have made further attempts to seize assets in Ecuador indirectly owned by Chevron under these attachment orders. For example, in two motions dated 30 January 2015, the Lago Agrio Plaintiffs asked the Lago Agrio Court to instruct the Ecuadorian Intellectual Property Institute ("EIPI") to renew certain trademarks owned by Chevron Intellectual Property LLC and separately to order those trademarks embargoed pursuant to the Court's enforcement orders. On 5 April 2016, the Lago Agrio Plaintiffs requested the Court to appoint a depository to withdraw the funds that were seized from TexPet's bank account at Banco Pichincha. On 11 April 2016, the Lago Agrio Plaintiffs requested that the Court rule on the Lago Agrio Plaintiffs' prior application for the EIPI to renew and embargo certain trademarks. On 12 July 2016, the Court refused these applications of 5 and 11 April 2016.
4.136.
To date, no monies (apart, possibly, from the sum of US$ 358.00) have been recovered from Chevron, TexPet or its other subsidiaries in any enforcement proceedings of the Lago Agrio Judgment by the Lago Agrio Plaintiffs in Ecuador or elsewhere.
4.137.
(12) The Gibraltar Litigation: Chevron began legal proceedings in Gibraltar against certain non-party funders of the Lago Agrio Litigation and ostensible beneficiaries of and administrators for recoveries from the enforcement of the Lago Agrio Judgement, including Mr DeLeon, the Woodsford Group and other defendants. The defendants applied to strike out Chevron's action. The Gibraltar Court refused their application, with the Court expressing surprise in its judgment that the Ecuadorian Courts had not ordered a re-hearing of the Lago Agrio Litigation.102
4.138.
(13) The Criminal Investigations (Ecuador): The Respondent's criminal prosecutors initiated one or more investigations of specific individuals in the conduct of the Lago Agrio Litigation. As stated in the Respondent's letter of 21 July 2016 to the Tribunal and confirmed by its Counsel at the Track II Hearing,103 the details of these investigations were and remain confidential under the Criminal Code of Ecuador, even from the Respondent's Attorney-General.
4.139.
One such individual was Judge Núñez, with an investigation begun in 2009 for bribery (with others). These criminal investigations were closed in 2013.104 Another is Dr Guerra, begun in 2013.105 The Tribunal was informed by the Claimants that this criminal investigation remains pending.
4.140.
To date, no prosecution has been brought against Dr Zambrano, Dr Guerra or any of the Lago Agrio Plaintiffs' representatives in Ecuador. However, as the Respondent stated, any criminal investigations into these individuals would be confidential under Ecuadorian law.
4.141.
(14) This Treaty Arbitration (The Hague): This arbitration was commenced by Chevron and TexPet against the Respondent by the Claimants' Notice of Arbitration dated 23 September 2009 under the Treaty and the UNCITRAL Arbitration Rules (the "Notice of Arbitration").
4.142.
This Notice of Arbitration, which pre-dated the Lago Agrio Judgment of 14 February 2011, claimed (inter alia) the following relief under the Treaty:

" … (3) An order and award requiring Ecuador to inform the court in the Lago Agrio Litigation that TexPet, its parent company, affiliates, and principals have been released from all environmental impact arising out of the former Consortium's activities and that Ecuador and Petroecuador are responsible for any remaining and future remediation work;

(4) A declaration that Ecuador or Petroecuador is exclusively liable for any judgment that may be issued in the Lago Agrio Litigation;

(5) An order and award requiring Ecuador to indemnify, protect and defend Claimants in connection with the Lago Agrio Litigation, including payment to Claimants of all damages that may be awarded against Chevron in the Lago Agrio Litigation;

(6) An award for all damages caused to Claimants, including in particular all costs including attorneys' fees incurred by Claimants in defending the Lago Agrio Litigation and the criminal indictments; …".

4.143.
The Notice of Arbitration pleaded several events allegedly taking place within the Lago Agrio Litigation up to September 2010, amounting to a "judicial farce". These included allegations relating to Mr Cabrera (as the Lago Agrio Court's global expert) and the Cabrera Reports, as to which it alleged 'collaboration' with the Lago Agrio Plaintiffs' representatives. It also alleged gross misconduct by the Lago Agrio Court, including Judge Núñez's improper predisposition towards the Lago Agrio Plaintiffs (until his recusal in August 2009) and the Respondent's resort to the Veiga and Pérez Criminal Prosecutions, in collusion with the Lago Agrio Plaintiffs' representatives, in an attempt to subvert Chevron's defences based on the 1995 Settlement Agreement in the Lago Agrio Litigation.
4.144.
Following the Notice of Arbitration, as and when new evidential materials became available to them, the Claimants supplemented their pleaded case against the Respondent, in accordance with procedural orders made by the Tribunal and the UNCITRAL Arbitration Rules (as did, conversely, the Respondent). In particular, by their Supplemental Memorial on the Merits of 20 March 2012, the Claimants introduced a new allegation that the Lago Agrio Court's judgment of 14 February 2011 (as issued by the Lago Agrio Court and affirmed and, on 1 March 2012, declared enforceable by the Lago Agrio Appellate Court) had been corruptly 'ghostwritten' by representatives of the Lago Agrio Plaintiffs in collusion with Judge Zambrano. (The Tribunal returns to this allegation at length below).
4.145.
To date, the Tribunal has made five awards in this arbitration: (i) the First Interim Award dated 25 January 2012; (ii) the Second Interim Award dated 16 February 2012; (iii) the Third Interim Award dated 27 February 2012; (iv) the Fourth Interim Award dated 7 February 2013; and (v) the First Partial Award on Track 1 dated 17 September 2013. It has also made 55 procedural orders, including its orders for interim measures dated 14 May 2010, 6 December 2010, 28 January 2011, 9 February 2011 and 16 March 2011. These awards and orders are listed in Annexes 1 and 3 to Part I above.
4.146.
The Respondent applied to annul the Tribunal's five awards before the Hague District Court and Court of Appeal. The Hague District Court rejected the Respondent's applications, by its judgment dated 20 January 2016.106 By its judgment dated 18 July 2017,107 the Court of Appeal of The Hague confirmed the decision of the District Court "with an improvement of the legal grounds". The Respondent was entitled under Dutch law, to appeal from this judgment to the Supreme Court of The Netherlands (the "Hoge Raad").
4.147.
By letter dated 1 August 2017, the Respondent notified the Tribunal that it was "currently evaluating" whether to initiate such an appeal. On 18 October 2017, the Respondent lodged a cassation appeal to the Hoge Raad. These appellate proceedings remain pending before the Hoge Raad, as of the date of this Award.108
4.148.
By letter dated 12 July 2017, the Respondent requested that the Tribunal "terminate" its First, Second and Fourth Interim Awards for the reasons there set out, principally because "recent events in U.S. courts and in enforcement courts demonstrate that Chevron faces no current imminent threat of irreparable harm" (pp. 4-5). By letter dated 19 July 2017, the Claimants opposed the Respondent's request. By its Procedural Order No 47 dated 31 October 2017, the Tribunal dismissed the Respondent's request for the reasons and upon the terms there set out.

H: The Tribunal's Annotated Chronology 1993-2018

4.149.
The Tribunal has found it necessary to set out the relevant facts, as it finds them on the evidence, in the form of an annotated chronology: from 1993 to the Lago Agrio Judgment and Clarification Order of 14 February and 4 March 2011; and from March 2011 to 2018. The events there described should be read with the documentary evidence referenced in the corresponding footnotes.
4.150.
As regards an overall account of the Aguinda Litigation and the Lago Agrio Litigation, the Tribunal emphasises that these chronologies, albeit lengthy, are incomplete. They nonetheless suffice for the purpose of this Award.
4.151.
Documentation in Spanish is here reproduced in English translations prepared by the Parties for the Tribunal.

1993

4.152.
3 November 1993 : As already indicated, the Aguinda Plaintiffs begin the Aguinda Litigati