Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5 (formerly Burlington Resources Inc. and others v. Republic of Ecuador and Empresa Estatal Petróleos del Ecuador (PetroEcuador)), Dissenting Opinion of Arbitrator Orrego Vicuña (November 8, 2012)
1. I very much regret not to be in full agreement with my distinguished colleagues in the Tribunal. I share many of the conclusions of the Decision, particularly the final one concerning that there has been an act of expropriation in this case in the light of the taking of possession of the Blocks by the Respondent’s officials that, as the Tribunal rightly concludes, dispossessed the Claimant not only of its oil production share, and hence of its revenues, but also of the means of production that made those revenues possible, thereby being totally deprived of the effective use and control of the investment.
2. It is my respectful submission, however, that the Decision stops short of recognizing a number of other rights that the investor has in the context of the PSCs, the Hydrocarbons Legal Framework and, most significantly, the Treaty and international law. This narrower approach the Decision follows results in that a number of acts that would normally qualify as contract or Treaty breaches, and thus entail liability, are dispensed of a legal sanction and of its consequence in the light of the State’s international responsibility for wrongful acts.
3. The first shortcoming with which I disagree concerns the meaning and extent of the umbrella clause as written in Article II (3) (c) of the Treaty. It is a well known fact that this matter has given place to a prolonged debate in investment arbitration and international law. The CMS Award, with which I was involved as the presiding arbitrator, took one position. The CMS Annulment Committee, for whose members I have the greatest respect, took a different approach. A number of awards have followed one or other line of thought. The essential divide between these lines of jurisprudence is that concerning privity.