Encana Corporation v. Republic of Ecuador

Abstract

Arbitration — Bilateral investment treaty — Jurisdiction and admissibility — “Fork in the road” provision — Distinction between treaty-based claim and claim under domestic law — Exclusion from jurisdiction of taxation dispute — Indirect taxation — Interpretation — Nationality of claims — Claimant corporation and subsidiaries — Consent to arbitration — Notice of arbitration — Whether consent in notice of arbitration sufficient — Waiver of claims in domestic courts — Whether waiver in notice of arbitration sufficient — Whether defect in waiver affecting jurisdiction

Arbitration — Provisional measures — Interim measures of protection — Apparent basis of jurisdiction — Irreparable damage — Freezing of accounts and attachment of sums — Whether interim measures urgent — Where State action open to challenge before domestic courts — Whether interim measures necessary

Arbitration — Costs — Discretion to order costs — Order for costs in favour of unsuccessful claimant — Whether just and equitable

Economics, trade and finance — Investment treaty — Protection of foreign investor — Protection against expropriation — Change in national practice regarding refunds of indirect taxation to exporter — Whether unfair and inequitable — Whether discriminatory or arbitrary — Whether amounting to expropriation

Expropriation — Indirect expropriation — Limits to concept of indirect expropriation — Whether denial of refund of taxation capable of constituting expropriation — Whether taxation law “extraordinary, punitive in amount or arbitrary in its incidence”