As always, very impressive, a real public service. If I could be contrarian for a bit, Chevron v Ecuador is, in boring formalist PIL terms, almost entirely unexciting, if with some smaller points of interest:
(1) Estoppel as a basis of jurisdiction.
As per the Tribunal, Ecuador cannot simultaneously (via its courts) say that Chevron has an investment, and then object in investment arbitration that it does not. Seems prima facie plausible but raises a number of technical points.
As per the Tribunal, Ecuador cannot simultaneously (via its courts) say that Chevron has an investment, and then object in investment arbitration that it does not. Seems prima facie plausible but raises a number of technical points.
1/a What is the test for estoppel in PIL?
The Tribunal trawls through many antediluvian authorities but it may be more helpful to take the recent statement in @PCA_CPA Chagos Arbitration files.pca-cpa.org/pcadocs/MU-UK%….
The Tribunal trawls through many antediluvian authorities but it may be more helpful to take the recent statement in @PCA_CPA Chagos Arbitration files.pca-cpa.org/pcadocs/MU-UK%….
1/b Does estoppel apply outside inter-State (or IO) relations?
The minority view (i.e., I), in line with the language of traditional authorities, would limit estoppel to interactions between those subjects that normally engage in PIL-making.
The minority view (i.e., I), in line with the language of traditional authorities, would limit estoppel to interactions between those subjects that normally engage in PIL-making.
1/c If estoppel is applicable in principle, do we have (to take Chagos a-b together) representations by an authorised agent in these matters? The Tribunal says that domestic courts are those agents, and judgments are those representations.
1/d That is not obviously right: the old AvenaInterpretation chestnut from US argument icj-cij.org/files/case-rel… on different rules for attribution/representation; State may be responsible for conduct of independent branches but only executive speaks on its behalf internationally
1/e Is Chagos c criterion satisfied, i.e. induced conduct/lack thereof?
The Tribunal does not seem to say anything on that.
The Tribunal does not seem to say anything on that.
1/d Finally, as the Tribunal acknowledges, basing jurisdiction on estoppel is a little bit risqué. The closest modern authority I can think of is the opinion of Wolfrum/Cot in in Ara Libertad itlos.org/fileadmin/itlo… – which puts in perspective the strength of the argument.
(2) Exception to exhaustion requirement in denial of justice.
Ecuador accepted that only reasonable/effective remedies needed to be exhausted for completing denial of justice. I happen to agree but it is curious that Ecuador did.
Ecuador accepted that only reasonable/effective remedies needed to be exhausted for completing denial of justice. I happen to agree but it is curious that Ecuador did.
2/a The Tribunal nods to all the right authorities in support of this standard.
2/b But there is also another (shorter) line of cases, which takes the @StateDept party line that all remedies bar obviously futile or manifestly ineffective have to be exhausted: Apotex I in NAFTA and Corona Materials in DR-CAFTA (see).
2/c One would expect a Latin American State, in a BIT claim by a US investor, to invoke NAFTA/DR-CAFTA authorities endorsed by the US. The award does not mention these cases.
Note this footnote: perhaps the flip side of double-hatting is to be limited to one's own awards.
Note this footnote: perhaps the flip side of double-hatting is to be limited to one's own awards.
(3) Some State responsibility bits (not everybody’s cup of tea):
3/1 Attribution of ultra vires conduct.
Helpful because there is surprisingly little post-2001 Articles practice on this – indeed, cannot immediately recall any substantive discussion in the 6th committee compendia on State responsibility.
Helpful because there is surprisingly little post-2001 Articles practice on this – indeed, cannot immediately recall any substantive discussion in the 6th committee compendia on State responsibility.
3/2 Responsibility for aid and assistance.
One tantalising paragraph that leaves all interesting things unpacked (@AustHelmut @milesmjackson @VLanovoy). But an actual judicial engagement with Article 16, however brief, is not to be belittled.
One tantalising paragraph that leaves all interesting things unpacked (@AustHelmut @milesmjackson @VLanovoy). But an actual judicial engagement with Article 16, however brief, is not to be belittled.
3/3 It would have been interesting to hear something about Article 16 and Monetary Gold, on which the Tribunal holds on elsewhere; the Commentary is famously calling for caution
3/4 Reparations. The Tribunal nods repeatedly to @CIJ_ICJ cases (particularly Avena) to make the point that the challenge of implementing responsibility for judicial conduct is hard -- but not more so than elsewhere in international dispute settlement.
3/5 Form of reparation. While the Tribunal does not use the term, interesting that it has order (juridical) restitution, which is not uncommon in inter-State dispute settlement but less usual in investment law, cf. @CIJ_ICJ Jurisdictional Immunities.
