Occidental Exploration and Production Company v. The Republic of Ecuador, LCIA Case No. UN3467 (US/Ecuador BIT), Judgment of the Court of Appeal regarding non-justiciability of challenge to arbitral award (September 9, 2005)
This is the judgment of the Court. The appeal, from a judgment and order of Aikens J dated 29th April 2005, concerns the extent to which the English Courts may under s.67 of the Arbitration Act 1996 consider a challenge to the jurisdiction of an award made by arbitrators appointed under provisions to be found in a Bilateral Investment Treaty. The Treaty was signed on 27th August 1993 between the United States of America (“USA”) and the Republic of Ecuador (“Ecuador”). It contained provisions “concerning the encouragement and reciprocal protection of investment” in each country by the nationals and companies of the other. These included a provision (Article VI) whereby, in the event of an “investment dispute”, such nationals and companies could enjoy direct dispute resolution rights against the other country. One of the options provided was arbitration subject to the Arbitration Rules of the United Nations Commission on International Trade Law (“UNCITRAL”), as here occurred. The arbitration was between Occidental Exploration and Production Company (“Occidental”), a Californian corporation, and Ecuador. There was a distinguished panel of arbitrators consisting of the Honourable Charles N. Brower, Dr Patrick Barrera Sweeney and, as chairman, Professor Francisco Orrego Vicuña. Their final award was dated 1st July 2004.