|LIST OF ABBREVIATIONS|
|1973 Concession Agreement||Agreement between the Government of Ecuador, Ecuadorian Gulf Oil Company and TexPet, 6 August 1973 (Exhibit C-7)|
|1994 MOU||Memorandum of Understanding among the Government of Ecuador, PetroEcuador and TexPet, 14 December 1994 (Exhibit C-17)|
|1995 Settlement Agreement||Contract for Implementing of Environmental Remediation Work and Release from Obligations, Liability, and Claims among the Government of Ecuador, PetroEcuador and TexPet, 4 May 1995 (Exhibit C-23)|
|1995 Scope of Work||Scope of Work agreement among the Government of Ecuador, PetroEcuador, and TexPet, 23 March 1995 (Exhibit C-23, Annex A)|
|1995 Remediation Action Plan||Texaco Petroleum Company Remedial Action Plan for the Former PetroEcuador-TexPet Consortium, 8 September 1995|
|(1996) Municipal and Provincial Releases||Release with Municipality of Joya de los Sachas, 2 May 1996 (Exhibit C-27); Release with Municipality of Shushufindi, 2 May 1996 (Exhibit C-28); Release with Municipality of the Canton of Francisco de Orellana (Coca), 2 May 1996 (Exhibit C-29); Release with Municipality of Lago Agrio, 2 May 1996 (Exhibit C-30); Contract of Settlement and Release between Texaco Petroleum Company and the Provincial Prefect's Office of Sucumbíos, 2 May 1996 (Exhibit C-31); Instrument of Settlement and Release from Obligations, Responsibilities, and Claims between the Municipalities Consortium of Napo and Texaco Petroleum Company, 26 April 1996 (Exhibit C-32)|
|1998 Final Release (or 1998 Acta Final)||Final Document (Acta Final): Final Certification Between the Republic of Ecuador, Petroecuador, PetroProducción and TexPet, 30 September 1998 (Exhibit C-53)|
|1999 EMA||Law of Environmental Management (also known as the Environmental Management Act), July 1999|
|Aguinda litigation||Maria Aguinda et al. v. Texaco, Inc., 945 F. Supp. 625 (S.D.N.Y. 1996), 142 F. Supp. 534 (S.D.N.Y. 2001), 93 Civ. 7527, 2000 WL 122143 (S.D.N.Y. Jan. 31, 2000), 303 F.3d 470 (U.S. Court of Appeals for the Second Circuit, Aug. 16, 2002)|
|BIT||Bilateral Investment Treaty, specifically the Treaty Between the United States of America and the Republic of Ecuador concerning the Encouragement and Reciprocal Protection of Investment, 27 August 1993 (entered into force 11 May 1997) (Exhibit C-279)|
|CC||Ecuadorian Civil Code|
|CEPE||Corporación Estatal Petrolera Ecuatoriana, an Ecuadorian State-owned company, later succeeded by PetroEcuador|
|Chevron (or First Claimant)||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., and indirect parent company of TexPet since 2001|
|Consortium||Consortium between TexPet, Ecuadorian Gulf Oil Company, and CEPE pursuant to the 1973 Concession Agreement|
|"Crude"||Crude: The Real Price of Oil. Dir. Joe Berlinger, 2009|
|Exh. C-||Claimants' Exhibit|
|Exh. R-||Respondent's Exhibit|
|Gulf||Ecuadorian Gulf Oil Company|
|ICSID||International Centre for Settlement of Investment Disputes|
|ILC||International Law Commission|
|Lago Agrio litigation||Maria Aguinda et al. v. Chevron Texaco Corporation, Proceeding No. 002-2003 (at first instance), Proceeding No. 2011-0106 (on appeal), Provincial Court of Sucumbíos, Sole Division (Corte Provincial de Justicia de Sucumbíos, Sala Única de la Corte Provincial de Justicia de Sucumbíos), Nueva Loja, Ecuador|
|PCA||Permanent Court of Arbitration|
|PetroEcuador||Empresa Estatal de Petróleos de Ecuador|
|Salgado Report||Expert Report of Roberto Salgado Valdez of 1 October 2010 (Exhibit RE-2)|
|Texaco||Texaco Inc., a legal person organized under the laws of the United States of America, and indirect parent company of TexPet until 2001|
|TexPet (or Second Claimant)||Texaco Petroleum Company, 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., and wholly-owned subsidiary of Chevron Corporation|
|UNCITRAL Arbitration||Arbitration Rules of the United Nations Commission on International|
|Rules||Trade Law, 15 December 1976|
|LIST OF LEGAL MATERIALS|
|BIT||Treaty Between the United States of America and the Republic of Ecuador concerning the Encouragement and Reciprocal Protection of Investment, 27 August 1993 (entered into force 11 May 1997) (Exhibit C-279)|
|ICSID Convention||Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965|
|Vienna Convention||Vienna Convention on the Law of Treaties, 23 May 1969|
|AAPL v Sri Lanka||Asian Agric. Prods., Ltd. (AAPL) v. Sri Lanka, ICSID Case No. ARB/87/3, Award, 27 June 1990 (El-Kosheri, Asante, Goldman) (Exhibit CLA-86) (Exhibit CLA-86)|
|Amco v Indonesia||Amco Asia v. Indonesia, Jurisdiction: Resubmission, 89 ILR 552 (1988) (Exhibit CLA-8)|
|AMT v Zaire||American Manufacturing & Trading, Inc. v. Zaire, ICSID Case No. ARB/93/1, Award, 21 February 1997 (Sucharitkul, Golsong, Mbaye) (Exhibit CLA-103)|
|Azurix v Argentina||Azurix Corp. v. Argentina, ICSID Case No. ARB/01/12, Decision on Jurisdiction, 8 December 2003 (Sureda, Lauterpacht, Martins) (Exhibit RLA-50); Azurix Corp. v. Argentina, ICSID Case No. ARB/01/12, Decision on the Application for Annulment, 1 September 2009 (Griffith, Ajibola, Hwang) (Exhibit CLA-203)|
|Barcelona Traction||Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, I.C.J. Reports 1970|
|Biwater v Tanzania||Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award, 24 July 2008 (Hanotiau, Born, Landau) (Exhibit CLA-137)|
|Burlington v Ecuador||Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/05, Decision on Jurisdiction, 2 June 2010 (Kaufmann-Kohler, Stern, Orrego Vicuña) (Exhibit RLA-39)|
|CMS v Argentina||CMS Gas Transmission Company v. Argentine Republic, ICSID Case No. ARB/01/8, Decision on Objections to Jurisdiction, 17 July 2003 (Orrego Vicuña, Lalonde, Rezek) (Exhibit CLA-58); CMS Gas Transmission Company v. Argentine Republic, ICSID Case No. ARB/01/8, Award, 12 May 2005 (Orrego Vicuña, Lalonde, Rezek) (Exhibit CLA-88)|
|Commercial Cases Dispute||Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador, PCA Case No. AA277, UNCITRAL, Interim Award, 1 December 2008 (Bôckstiegel, Van den Berg, Brower) (Exhibit CLA-1); Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador, PCA Case No. AA277, UNCITRAL, Partial Award on the Merits, 30 March 2010 (Bôckstiegel, Van den Berg, Brower) (Exhibit CLA-47)|
|Continental Casualty v Argentina||Continental Casualty Company v. Argentine Republic, ICSID Case No. ARB/03/9, Decision on Jurisdiction, 22 February 2006 (Sacerdoti, Veeder, Nader) (Exhibit RLA-43)|
|Costa Rica v Nicaragua||Costa Rica v. Nicaragua, The Central American Court of Justice, Judgment, 30 September 1916, 11 AM. J. INT'L L. 181, 181-229 (1917) (Exhibit RLA-77)|
|Duke Energy v Ecuador||Duke Energy Electroquil Partners and Electroquil S.A. v. Republic of Ecuador, ICSID Case No. ARB/04/19, Award, 18 August 2008 (Kaufmann-Kohler, Gómez Pinzón, van den Berg) (Exhibit RLA-40)|
|El Paso v Argentina||El Paso Energy International Company v. Argentine Republic, ICSID Case No. ARB/03/15, Decision on Jurisdiction, 27 April 2006 (Caflisch, Stern, Bernardini) (Exhibit CLA-14)|
|EnCana v Ecuador||EnCana Corporation v. Republic of Ecuador, LCIA Case No. UN3481, Award, 3 February 2006 (Crawford, Grigera Naón, Thomas) (Exhibit RLA-41)|
|Enron v Argentina||Enron Creditors Recovery Corporation (formerly Enron Corporation) and Ponderosa Assets, L.P. v. Argentine Republic, ICSID Case No. ARB/01/3, Decision on Jurisdiction, 14 January 2004 (Orrego Vicuña, Espiell, Tschanz) (Exhibit CLA-62)|
|Fedax v Venezuela||Fedax N.V. v. Republic of Venezuela, ICSID Case No. ARB/96/3, Decision on Objections to Jurisdiction, 11 July 1997 (Orrego Vicuña, Heth, Owen) (Exhibit CLA-93)|
|Frontier Petroleum||Frontier Petroleum Services (FPS) v. Czech Republic, UNCITRAL, Final Award, 12 November 2010 (Williams, Schreuer, Álvarez)|
|Genin v Estonia||Alex Genin and others v. Republic of Estonia, ICSID Case No. ARB/99/2, Award, 25 June 2001 (Fortier, Heth, van den Berg) (Exhibit CLA-87)|
|Holiday Inns v Morocco||Pierre Lalive, The First ‘World Bank' Arbitration (Holiday Inns v. Morocco) — Some Legal Problems, 51 Brit. Y.B. Int'l L. 123, 159 (1980), reprinted in 1 ICSID Rep. 645 (1993) (Exhibit CLA-118)|
|Impregilo v Pakistan||Impregilo S.p.A. v. Islamic Republic of Pakistan, ICSID Case No. ARB/03/3, Decision on Jurisdiction, 22 April 2005 (Guillaume, Cremades, Landau) (Exhibit RLA-51)|
|Inmaris v Ukraine||Inmaris Perestroika Sailing Maritime Services GmbH and Others v. Ukraine, ICSID Case No. ARB/08/8, Decision on Jurisdiction, 8 March 2010 (Alexandrov, Cremades, Rubins) (Exhibit CLA-114)|
|Joy Mining v Egypt||Joy Mining Machinery Limited v. Arab Republic of Egypt, ICSID Case No. ARB/03/11, Award on Jurisdiction, 6 August 2004 (Orrego Vicuña, Craig, Weeramantry) (Exhibit RLA-32)|
|Lanco v Argentina||Lanco International, Inc. v. Argentine Republic, ICSID Case No. ARB/97/6, Decision on Jurisdiction, 8 December 1998 (Cremades, Aguilar Alvarez, Baptista) (Exhibit CLA-176)|
|Larsen v Hawaiian Kingdom||Larsen v. The Hawaiian Kingdom, PCA, UNCITRAL, Award, 5 February 2001 (Crawford, Griffith, Greenwood) (Exhibit RLA-76)|
|Lucchetti v Peru||Industria Nacional de Alimentos, S.A. and Indalsa Perú, S.A. (formerly Empresas Lucchetti, S.A. and Lucchetti Perú, S.A.) v. Republic of Peru, ICSID Case No. ARB/03/4, Decision on Annulment, 5 September 2007 (Danelius, Berman, Giardina)|
|Maffezini v Spain||Emilio Agustín Maffezini v. Kingdom of Spain, ICSID Case No. ARB/97/7, Decision on Objections to Jurisdiction, 25 January 2000 (Orrego Vicuña, Buergenthal, Wolf) (Exhibit RLA-82)|
|Methanex v United States||Methanex Corporation v. United States of America, UNCITRAL, Partial Award, 7 August 2002 (Veeder, Reisman, Rowley) (Exhibit CLA-148)|
|Micula v Romania||Ioan Micula, Viorel Micula and others v. Romania, ICSID Case No. ARB/05/20, Decision on Jurisdiction and Admissibility, 24 September 2008 (Levy, Alexandrov, Ehlermann) (Exhibit RLA-52)|
|Mondev v United States||Mondev International Ltd. v. United States of America, ICSID Case No. ARB(AF)/99/2, Award, 11 October 2002 (Stephen, Crawford, Schwebel) (Exhibit CLA-7)|
|Monetary Gold||Case of the Monetary Gold removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), Preliminary Question, Judgment, 15 June 1954, I.C.J. Rep. 1954 (Exhibit RLA-19)|
|Nagel v Czech Republic||William Nagel v. Czech Republic, SCC Case No. 49/2002, Award, 9 September 2003 (Danelius, Hunter, Kronke) (Exhibit RLA-90)|
|Noble Energy v Ecuador||Noble Energy Inc. and MachalaPower Cía. Ltd. v. Republic of Ecuador and Consejo Nacional de Electricidad, ICSID Case No. ARB/05/12, Decision on Jurisdiction, 5 March 2008 (Kaufmann-Kohler, Álvarez, Cremades) (Exhibit CLA-70)|
|Noble Ventures v Romania||Noble Ventures, Inc. v. Romania, ICSID Case No. ARB/01/11, Award, 12 October 2005 (Bôckstiegel, Lever, Dupuy) (Exhibit CLA-159)|
|Occidental v Ecuador||Occidental Petroleum Corporation and Occidental Exploration and Production Company v. Republic of Ecuador, LCIA Case No. UN3467, Final Award, 1 July 2004 (Orrego Vicuña, Brower, Sweeney) (Exhibit RLA-57)|
|Occidental v Ecuador 2005||Occidental Exploration and Production Co v. Republic of Ecuador,  EWCA Civ 1116 (Exhibit CLA-160)|
|Occidental v Ecuador 2007||Occidental Exploration and Production Co v. Republic of Ecuador,  EWCA Civ 656 (Exhibit CLA-146)|
|Oil Platforms||Case Concerning Oil Platforms (Iran v. United States), Preliminary Objection Judgment, 12 December 1996, 1996 ICJ Reports 803 (Exhibit RLA-45)|
|Olguín v Paraguay||Eudoro Armando Olguín v. Republic of Paraguay, ICSID Case No. ARB/98/5, Decision on Jurisdiction, 8 August 2000 (Oreamuno, Rezek, Mayora Alvarado) (Exhibit CLA-171)|
|Pantechniki v Albania||Pantechniki S.A. Contractors & Engineers v. Republic of Albania, ICSID Case No. ARB/07/21, Award, 30 July 2009 (Paulsson) (Exhibit RLA-17)|
|PSEG Global Inc v Turkey||PSEG Global Inc. and Konya Ilgin Elektrik Üretim ve Ticaret Limited Sirketi v. Republic of Turkey, ICSID Case No. ARB/02/5, Decision on Jurisdiction, 4 June 2004 (Orrego Vicuña, Fortier, Kaufmann-Kohler) (Exhibit RLA-38)|
|Romak v Uzbekistan||Romak S.A. v. Uzbekistan, PCA Case No. AA280, Award, 26 November 2009 (Mantilla Serrano, Rubins, Molfessis) (Exhibit RLA-16)|
|Saba Fakes v Turkey||Saba Fakes v. Republic of Turkey, ICSID Case No. ARB/07/20, Award, 14 July 2010 (Gaillard, van Houtte, Lévy) (Exhibit CLA-80)|
|Saipem v Bangladesh||Saipem S.p.A. v. The People's Republic of Bangladesh, ICSID Case No. ARB/05/07, Decision on Jurisdiction and Recommendation on Provisional Measures, 21 March 2007 (Kaufmann-Kohler, Schreuer, Otton) (Exhibit CLA-27)|
|Salini v Morocco||Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction, 23 July 2001 (Briner, Cremades, Fadlallah) (Exhibit RLA-34)|
|SGS v Philippines||SGS Société Générale de Surveillance S.A. v. Republic of the Philippines, ICSID Case No. ARB/02/6, Decision on Objections to Jurisdiction, 29 January 2004 (El-Kosheri, Crawford, Crivellaro) (Exhibit RLA-47)|
|SPP v Egypt||SPP (Middle East) Limited and Southern Pacific Properties Limited v. Arab Republic of Egypt and Egyptian General Company for Tourism and Hotels, ICC Case No. YD/AS No. 3493, Award, 11 March 1983, 3 ICSID Rep. 46, 66 (1995) (Bernini, Elghatit, Littman) (Exhibit CLA-109)|
|Tradex v Albania||Tradex Hellas S.A. v. Republic of Albania, ICSID Case No. ARB/94/2, Award, 29 April 1999 (Bôckstiegel, Fielding, Giardina) (Exhibit CLA-134)|
|Waste Management v Mexico||Waste Management, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/00/3), Decision on Jurisdiction, 26 June 2002 (Crawford, Magallón Gómez, Civiletti) (Exhibit CLA-73)|
|White Industries v India||White Industries Australia Limited v. Republic of India, UNCITRAL, Award, 30 November 2011 (Rowley, Brower, Lau)|
|1994 US Model BIT||Treaty Between the Government of the United States of America and the Government of [Country] Concerning the Encouragement and Reciprocal Protection of Investment (Exhibit CLA-158)|
|2004 US Model BIT||Treaty Between the Government of the United States of America and the Government of [Country] Concerning the Encouragement and Reciprocal Protection of Investment (Exhibit RLA-9)|
|ILC Articles on State Responsibility||International Law Commission Articles on State Responsibility for Internationally Wrongful Acts, adopted by the International Law Commission at its fifty-third session (2001)|
|Schreuer et al||Christoph Schreuer, Loretta Malintoppi, August Reinisch, and Anthony Sinclair, The ICSID Convention: A Commentary, 2nd Edition (Cambridge university press 2009)|
|Vandevelde 1992||KENNETH J. VANDEVELDE, UNITED STATES INVESTMENT TREATIES: POLICY AND PRACTICE (Kluwer Law and Taxation 1992)|
|Vandevelde 2009||KENNETH J. VANDEVELDE, U.S. INTERNATIONAL INVESTMENT AGREEMENTS (oxford university press 2009)|
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 BIT, with the UNCITRAL Arbitration Rules (1976), are herein collectively called the "Arbitration Agreement").
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 2708 35th Place NW Washington, D.C. 20007, United States of America;
Professor Lowe: On 4 December 2009, the Respondent notified the Claimants of its appointment as co-arbitrator of Professor Vaughan Lowe QC, of Essex Court Chambers, 24 Lincoln's Inn Fields, London WC2A 3EG, United Kingdom.
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 consent 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 , 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 third arbitrator Mr. V.V. Veeder, of Essex Court Chambers, 24 Lincoln's Inn Fields, London WC2A 3EG, United Kingdom.
"D1.5" denotes page of 5 of the first day, 22 November 2010.
"Accordingly, Claimants request an Order and Award granting the following relief:
1. Declaring that under the 1995, 1996 and 1998 Settlement and Release Agreements, Claimants have no liability or responsibility for environmental impact, including but not limited to any alleged liability for impact to human health, the ecosystem, indigenous cultures, the infrastructure, or any liability for unlawful profits, or for performing any further environmental remediation arising out of the former Consortium that was jointly owned by TexPet and Ecuador, or under the expired Concession Contract between TexPet and Ecuador.
2. Declaring that Ecuador has breached the 1995, 1996, and 1998 Settlement and Release Agreements and the U.S.-Ecuador BIT, including its obligations to afford fair and equitable treatment, full protection and security, an effective means of enforcing rights, non-arbitrary treatment, non-discriminatory treatment, and to observe obligations it entered into under the investment agreements.
3. Declaring that under the Treaty and applicable international law, Chevron is not liable for any judgment rendered in the Lago Agrio Litigation.
4. Declaring that any judgment rendered against Chevron in the Lago Agrio Litigation is not final, conclusive or enforceable.
5. Declaring that Ecuador or Petroecuador (or Ecuador and Petroecuador jointly) are exclusively liable for any judgment rendered in the Lago Agrio Litigation.
6. Ordering Ecuador to use all measures necessary to prevent any judgment against Chevron in the Lago Agrio Litigation from becoming final, conclusive or enforceable.
7. Ordering Ecuador to use all measures necessary to enjoin enforcement of any judgment against Chevron rendered in the Lago Agrio Litigation, including enjoining the nominal Plaintiffs from obtaining any related attachments, levies or other enforcement devices.
8. Ordering Ecuador to make a written representation to any court in which the nominal Plaintiffs attempt to enforce a judgment from the Lago Agrio Litigation, stating that the judgment is not final, enforceable or conclusive;
9. Ordering Ecuador to dismiss the Criminal Proceedings in Ecuador against Messrs. Ricardo Veiga and Rodrigo Pérez.
10. Ordering Ecuador not to seek the detention, arrest or extradition of Messrs Veiga or Pérez or the encumbrance of any of their property.
11. Awarding Claimants indemnification against Ecuador in connection with a Lago Agrio judgment, including a specific obligation by Ecuador to pay Claimants the sum of money awarded in to the Lago Agrio judgment.
12. Awarding Claimants any sums that the nominal Lago Agrio Plaintiffs collect against Claimants or their affiliates in connection with enforcing a Lago Agrio judgment.
13. Awarding all costs and attorneys' fees incurred by Claimants in (1) defending the Lago Agrio Litigation and the Criminal Proceedings, (2) pursuing this Arbitration, (3) uncovering the collusive fraud through investigation and discovery proceedings in the United States, (4) opposing the efforts by Ecuador and the Lago Agrio Plaintiffs to stay this Arbitration through litigation in the United States, (5) as well as all costs associated with responding to the relentless public relations campaign by which the Lago Agrio Plaintiffs' lawyers (in collusion with Ecuador) attacked Chevron with false and fraudulent accusations concerning this case. These damages will be quantified at a later stage in these proceedings.
14. Awarding moral damages to compensate Claimants for the non-pecuniary harm that they have suffered due to Ecuador's outrageous and illegal conduct.
15. Awarding both pre- and post-award interest (compounded quarterly) until the date of payment.
16. Any other and further relief that the Tribunal deems just and proper."
" 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:..."
"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;...
(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."
"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 dispute-settlement 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); or...
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 our without delay the provisions of any such award and to provide in its territory for its enforcement..."
"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)."
(i) The dispute does not arise out of or relate to an investment in Ecuador, for the purposes of Article VI(1)(c) of the BIT; or
(ii) The dispute does not arise out of an investment agreement, for the purposes of Article VI(1)(a) of the BIT; and
(iii) The Claimants have no prima facie case on the merits.
"The Claimants' investments were largely liquidated when they transferred their ownership in the concession to PetroEcuador and upon the conclusion of various Settlement Agreements with Ecuador. Yet, those investments were and are not yet fully wound up because of ongoing claims for money arising directly out of their oil extraction and production activities under their contracts with Ecuador and its state owned oil company. These claims were excluded from any of the Settlement Agreements…"
(a) Any rights created by the 1994 MOU were superseded by the 1995 Settlement Agreement; and accordingly such rights did not exist when the BIT entered into force in 1997;25
(b) In response to the Claimants' assertion that the release granted by the 1995 Settlement Agreement has significant economic value, the Respondent submits that the purpose of the release was not to carry out any investment activity, nor to dispose of any investment, but only to release TexPet from claims made by the Respondent or PetroEcuador arising from environmental pollution. Similarly, in response to the Claimants' reliance on the amount of about US$ 38 million expended on remediation projects, the Respondent submits that the Claimants were only remedying their own tortious wrongs; and, accordingly, these were compensatory payments and not an investment;26
(c) In relation to the Municipal and Provincial Releases, the Respondent's primary response is that neither the Respondent nor PetroEcuador were parties to these agreements. In any event, the Respondent asserts that the payments made by the Claimants thereunder have none of the essential characteristics of any investment;27 and
(d) As to the 1998 Final Release, the Respondent submits that it was merely an acknowledgement by the Respondent that TexPet had fully performed its obligations under the 1995 Settlement Agreement. It did not have the essential characteristics of any investment. Although equipment was transferred by TexPet under the 1998 Final Release, it was made free of charge; and such transfer is in any event unrelated to the Claimants' claims.28
(i) "Find and declare that jurisdiction is lacking over all claims raised by
Claimants and dismiss all claims, in accordance with the Republic's Objections to Jurisdiction above";
(ii) "Order, pursuant to Article 40 of the UNCITRAL Arbitration Rules, Claimants to pay all costs and expenses of this arbitration proceeding, including the fees and expenses of the Tribunal and the costs of the Republic's legal representation, plus pre-award and post-award interest thereon"; and
(iii) "Grant any other or additional relief as may be appropriate under the circumstances or as may otherwise be just and proper."57
(i) "A declaration that the dispute is within the jurisdiction and competence of this Tribunal";
(ii) "An order dismissing all of Respondent's objections to the jurisdiction and competence of the Tribunal"; and
(iii) "An order that Respondent pay the costs of this proceedings, including the Tribunal's fees and expenses, and the costs of Claimants' representation, along with interest".146
"Members of the Tribunal, I participate in this Hearing in my condition of Procurador General of the State of the Republic of Ecuador. With me are some of the members of the team that is in charge of the responsibility of defending the Republic in this international arbitration of investors and state. Before allowing to speak our lawyers of Winston and Matrix I want to talk to you briefly.
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. This fundamental law is a product of the most important democratic exercise in Ecuador in the later years, with more than 63 percent of votes in favour of the referendum which approved the Constitution.
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.
Now we concentrate in the present arbitration. The Ecuadorian Republic is trying to be trapped in a private controversy between two private litigants that are foreign to the State: On the one hand, the transnational companies Chevron and Texaco, and the other part, the indigenous people from Lago Agrio. In this litigation, what is at stake is the improvement of health in a locality of Ecuador that is still pending a resolution vis-à-vis a court in Amazonia in Ecuador. The Ecuadorian State is not part of this case. The controversy is being known by the presidency of the Provincial Court in Lago Agrio as a result of a litigation of 10 years against the Claimants and the tribunals of the United States. In that moment, the Claimants supported, without any objection, and presented the advantages of a judicial system vis-à-vis the Courts of the United States.
So, our judicial system should be in charge of knowing about this case in Lago Agrio. At the moment, the Claimants have decided that they don't want to litigate against the Claimants of Lago Agrio, but they want to replace these Claimants with the Republic of Ecuador as part of the controversy, and they fabricated a crisis in the justice administration and a problem of Government in Ecuador. They have redirected that offensive against those that once offered an excellent relationship in previous decades.
The Claimants pretend to come unto this Arbitration Tribunal claiming for rights that they don't have in violation of the judicial commitments in the United States. So, the Republic of Ecuador, in an unconstitutional manner, should violate independency of the legal system to close a case of Lago Agrio.
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. The recent institution by the Council of Judiciary of Juan Nunez, who was in charge of the case of Lago Agrio until September 2009, is the testimony of the efforts to achieve a justice administration more robust and transparent.
From the reading of Memorials and other communications from the Claimants in the present arbitration case, it is obvious that we are talking of different illicit case of the Claimants of Lago Agrio. But it is more obvious that the Claimants tried to convert the local litigation in Ecuador in an international litigation against a sovereign State has not been part of the controversy, particularly where one of the parties, transnational companies that have unlimited resources who now have presented this arbitration of investments looking for the protection under the argument that to operate in Ecuador is inconvenient. We have to understand inconvenient to their interests, of course.
The position of the Ecuadorian Republic in the case of Lago Agrio as well as the position of Ecuador in any litigation of similar characteristics in Ecuadorian Courts is very clear and firm position. It's a litigation between private parties, the Claimants of Lago Agrio and Chevron, and the only role that the Republic of Ecuador in this case has to fulfil is to be the forum through its system of justice administration of a litigation where Chevron previously tried to prove; that is, in Ecuador where the case should be known.
The Republic of Ecuador does not deny the support that [Texaco] received of the Government at the time in a note to the State Department of the United States, inviting the American Government to intervene in the case Aguinda with the intention to send the case to Ecuador. The same way we do not deny that the Governments of the time including the present administration made public the declarations in support of the people of Lago Agrio, but I conclude in two things.
First of all, there is no indication that in the case of Lago Agrio or its antecessor Lago Inda [Aguinda]; secondly, the Republic of Ecuador never interfered with the judicial process of Lago Agrio. The Republic of Ecuador has become the center of an attack by Chevron against the Ecuadorian State. Ecuador had to confront, to face this with the limited resources it has, different legal cases. The first case is Chevron of AAA and the courts of New York. The second case, Chevron is an arbitration of investment based in The Hague. And this arbitration, that is a third case presented by Chevron, and especially the machine of public relations of the Claimants that every year work in the corridors of the American Congress and also in the offices of the representatives of commerce of the United States looking to cancel the preferences that Ecuador enjoys from the commercial viewpoint, with the intention of pressurizing the Government to intervene in the case of Lago Agrio in favour of Chevron.
This offensive without limit started in 2003, when Ecuador informed Chevron and the demandantes of Lago Agrio that it would keep a neutral position in this case, and we refused to interfere with the justice administration to disqualify this claim.
In this Hearing of Jurisdiction that starts today, a request from you, members of the Court, that you look at this arbitration as what it is really, the effort by the Claimants to transform artificially a domestic litigation between private parties in the controversy of international characters between a State and investors, eliminating the rights of the Ecuadorian Courts and the people of Lago Agrio denying or claiming elements of a Treaty -- of investment five years after Texaco left our country after collecting enormous profits, thanks to our oil, during 20 years."
"It was a privilege to hear directly from Solicitor General Garcia. His decision to address the Tribunal himself shows the importance of this matter to his client. I likewise will make a few preliminary points before turning to Mr. Bishop and Professor Crawford for the substantive presentations.
Chevron take no pleasure any in dispute with any sovereign Government. Chevron prides itself on constructive relations with Governments that employ widely varying systems and policies of Government and hold wildly varying attitudes toward the Government policies of the United States.
Chevron's subsidiary, Texaco Petroleum Company, pursued constructive relations with Ecuador from the 1960s to the 1990s when the Government of Ecuador decided at that time that the entire Concession and operation should be awarded to the PetroEcuador company.
During Texaco's time, it earned profits described as enormous by Dr. Garcia, of some $500 million. Ecuador's royalties, taxes, and other earnings during that same time period were approximately $23 billion, and approximately $116 billion through 2008. Texaco cleaned up when it left and awaits PetroEcuador's promised cleanup of its share of past impacts, not to mention what PetroEcuador will do about its pollution during the succeeding 18 years.
Let me now make some comments that relate to the so-called "Lago Agrio Plaintiffs", not to the Government of Ecuador. Chevron believes the dramatic evidence in the Crude video outtakes and recently produced documents has brought this entire situation into a fundamentally new phase. The Tribunal need not take my word for this, for several U.S. federal judges have noted that the evidence has "sent shock waves through the legal community", and shows activity that should be recognized as fraud by any Court.
Fraudulent filings, threats to judges, procuring sham criminal charges to be bartered for settlement money, and other activities by the American Plaintiffs' lawyers and their allies have been shown on high definition video and in the Plaintiffs' lawyers own documents.
Chevron will not give the so-called ‘Lago Agrio Plaintiffs' lawyers', whomever they really represent, the extorted settlement money they seek. As to them, we hope only that they will be brought to justice by the appropriate authorities.
Now, Chevron has previously made detailed arguments about the interference by the Government of Ecuador in the Lago litigation, and it stands by those, but again, my comments on the Crude video evidence this afternoon are about the private Plaintiffs' lawyers and their profit motivated litigation investors.
The question for the Government of Ecuador, once it has had a fair opportunity to address the emerging evidence, is how it will respond to the evidence. In the Lago Agrio Court, Chevron's lawyers have lately been fined and threatened with other sanctions simply for presenting the evidence of fraud on the Tribunal. I note I have yet to hear from any speaker before this Tribunal any hint of doubt that the Lago Agrio Court will render a judgment against Chevron, no matter what evidence is shown to that Court. And, of course, the Government of Ecuador stands to get 90 percent of any judgment in the case. The figure now being sought is $113 billion.
Dr. Garcia states with sincerity that Ecuador has nothing to do with the Lago Agrio Case, yet Mr. Bloom has submitted in New York just Friday attesting to the existence of a common-interest privilege with the Lago Agrio Plantiffs' lawyers since 2006. The evidence of communication between Winston & Strawn and Steven Donziger is copious.
A U.S. Federal Magistrate Judge recently stated that any country that does not recognize what has happened in Lago Agrio as a fraud has bigger problems than an oil spill.
Chevron eagerly awaits to what the Republic of Ecuador's reaction to the new evidence may be and whether the Republic believes there is anything that it and Chevron might constructively do together to address that situation."