Ecuador v Occidental Exploration and Production Company

Ecuador v Occidental Exploration and Production Company

The doctrine of non-justiciability does not prevent the English court from entertaining Ecuador’s application to challenge the tribunal’s substantive jurisdiction under section 67 of the Arbitration Act 1996. Although the BIT is an unincorporated treaty, the right to challenge the tribunal’s jurisdiction is a domestic law right under the 1996 Act, and the court is entitled to interpret the BIT for that purpose.

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 Application / Preliminary Objection to Jurisdiction (non Justiciability)
Outcome
Application dismissed
Legal Topics
Non Justiciability, Bilateral Investment Treaties (bits), Jurisdiction of Arbitral Tribunals, Interpretation of Unincorporated Treaties, Enforcement of Arbitral Awards
Arbitration International Law Commercial Law Non Justiciability Bilateral Investment Treaties (bits) Jurisdiction of Arbitral Tribunals Interpretation of Unincorporated Treaties Enforcement of Arbitral Awards

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Parties

The Republic of Ecuador

Claimant/respondent

Occidental Exploration and Production Company

Defendant/applicant

Procedural Posture

Arbitration Application / Preliminary Objection to Jurisdiction (non Justiciability)

Legal Issues

  1. 1 Does the doctrine of non-justiciability prevent the English court from considering Ecuador’s challenge to the arbitral tribunal’s jurisdiction under section 67 of the Arbitration Act 1996?
  2. 2 Are the rights and obligations arising under a BIT between foreign states justiciable in English courts when the seat of arbitration is London?
  3. 3 Can the English court interpret an unincorporated treaty for the purpose of determining domestic law rights under the Arbitration Act 1996?

Ratio Decidendi

The doctrine of non-justiciability does not prevent the English court from entertaining Ecuador’s application to challenge the tribunal’s substantive jurisdiction under section 67 of the Arbitration Act 1996. Although the BIT is an unincorporated treaty, the right to challenge the tribunal’s jurisdiction is a domestic law right under the 1996 Act, and the court is entitled to interpret the BIT for that purpose.

Court Disposition

Application dismissed

Orders

  • Occidental’s application dated 24 November 2004 to strike out Ecuador’s section 67 challenge is dismissed.