Ecuador v Occidental Exploration and Production Company [2005] EWHC 774 (Comm) (29 April 2005)

Ecuador v Occidental Exploration and Production Company [2005] EWHC 774 (Comm) (29 April 2005)

The English court is not prevented by the doctrine of non-justiciability from considering Ecuador's challenge to the arbitral award under section 67 of the Arbitration Act 1996. Although the BIT is an unincorporated treaty governed by public international law, the arbitration agreement and award are subject to the supervisory jurisdiction of the English court as the seat of arbitration. The court may interpret the BIT to the extent necessary to determine the scope of the arbitration agreement and enforceability of the award, as this concerns private law rights between the parties and is required by the Arbitration Act and New York Convention.

Citation
[2005] EWHC 774 (Comm)
Parties
Claimant/respondent: The Republic of Ecuador; Defendant/applicant: Occidental Exploration and Production Company
Jurisdiction
England and Wales
Judgment Date
29 April 2005
Procedural Posture
Arbitration Challenge Under Arbitration Act 1996, S.67 / Judgment on Preliminary Issue of Non Justiciability
Outcome
Application for dismissal on grounds of non-justiciability refused; court will consider Ecuador's challenge to the award.
Legal Topics
Non Justiciability, Interpretation of Bilateral Investment Treaties, Jurisdiction of English Courts Over International Arbitration Awards, Enforcement of Arbitral Awards, Public Vs Private Law Rights Under Treaties
International Law Arbitration Commercial Law Non Justiciability Interpretation of Bilateral Investment Treaties Jurisdiction of English Courts Over International Arbitration Awards Enforcement of Arbitral Awards Public Vs Private Law Rights Under Treaties

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Parties

The Republic of Ecuador

Claimant/respondent

Occidental Exploration and Production Company

Defendant/applicant

Procedural Posture

Arbitration Challenge Under Arbitration Act 1996, S.67 / Judgment on Preliminary Issue of Non Justiciability

Legal Issues

  1. 1 Does the English law doctrine of non-justiciability prevent the court from determining a challenge to an arbitral award arising from a Bilateral Investment Treaty between foreign states?
  2. 2 Are the rights and remedies arising under a BIT governed by public international law or municipal law?
  3. 3 Can English courts interpret and enforce rights under an unincorporated treaty?

Ratio Decidendi

The English court is not prevented by the doctrine of non-justiciability from considering Ecuador's challenge to the arbitral award under section 67 of the Arbitration Act 1996. Although the BIT is an unincorporated treaty governed by public international law, the arbitration agreement and award are subject to the supervisory jurisdiction of the English court as the seat of arbitration. The court may interpret the BIT to the extent necessary to determine the scope of the arbitration agreement and enforceability of the award, as this concerns private law rights between the parties and is required by the Arbitration Act and New York Convention.

Court Disposition

Application for dismissal on grounds of non-justiciability refused; court will consider Ecuador's challenge to the award.

Orders

  • The preliminary issue of non-justiciability is determined against Occidental; the court has jurisdiction to consider the section 67 challenge.