Occidental Exploration and Production Company 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 — Admissibility of expropriation claim

Economics, trade and finance — Investment treaty — Protection of foreign investor — Protection against expropriation — Unfair and inequitable treatment — Discrimination — Arbitrary behaviour — 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

Treaties — Interpretation and application — Ecuador — USA Bilateral Investment Treaty, 1993 — National treatment — VAT refunds for exporters — Whether comparison should be made between sectors of activity or exporters generally — Whether most-favoured-nation treatment obligations also breached

Damages — Unfair and inequitable treatment — Arbitrary and discriminatory treatment — Compensation — Entitlement to compensation for claim not made on grounds of futility — Interest