Burlington Resources, Inc. v. Republic of Ecuador (ICSID Case No. ARB/08/5)

Procedural record

1. 29 June 2009Arbitration

   29 June 2009Arbitration

   Procedural Order No. 1 on Burlington Oriente's Request for Provisional Measures

   International Centre for Settlement of Investment Disputes

   Decision summary

   The Tribunal ordered the parties to establish an escrow account, directed Burlington Oriente to deposit past and future Law 42 and Decree 662 payments, directed the Respondents to discontinue and not initiate coactiva actions, and ordered the parties to avoid aggravating the dispute.

   Participants

   Burlington Resources Oriente Limited

   Republic of Ecuador

   Petroecuador

   International Centre for Settlement of Investment Disputes

   Arbitrator

   Gabrielle Kaufmann-Kohler

   Arbitrator

   Brigitte Stern

   Arbitrator

   Francisco Orrego Vicuna

   Other

   Witness

   Alex Martinez

   Authorities cited

   5

   • Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Washington, DC, 1965
     convention
   • Treaty between the United States and Ecuador concerning the Encouragement and Reciprocal Protection of Investments, 11 May 1997
     treaty
   • Ecuadorian Civil Code
     statute
   • Ecuadorian Law No. 2006-42
     statute
   • Ecuadorian Decree No. 662
     statute

   11 months and 4 days later · 338 days

2. 2 June 2010Arbitration

   2 June 2010Arbitration

   Decision on Jurisdiction

   International Centre for Settlement of Investment Disputes

   Decision summary

   The Tribunal addressed Ecuador's jurisdictional objections and held that some claims were within its jurisdiction while other claims were dismissed or found inadmissible for failure to satisfy the Treaty requirements.

   Participants

   Burlington Resources Inc.

   Republic of Ecuador

   International Centre for Settlement of Investment Disputes

   Arbitrator

   Gabrielle Kaufmann-Kohler

   Arbitrator

   Brigitte Stern

   Arbitrator

   Francisco Orrego Vicuna

   Authorities cited

   2

   • Treaty between the United States and Ecuador concerning the Encouragement and Reciprocal Protection of Investments, 11 May 1997
     treaty
   • Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Washington, DC, 1965
     convention

   2 years, 6 months and 12 days later · 926 days

3. 14 December 2012Arbitration

   14 December 2012Arbitration

   Decision on Liability

   International Centre for Settlement of Investment Disputes

   Decision summary

   The Tribunal denied Ecuador's request to strike part of Burlington's submission, held that it lacked jurisdiction over Burlington's umbrella-clause claims, upheld jurisdiction and admissibility concerning the caducidad decrees for Blocks 7 and 21, and held that Ecuador unlawfully expropriated Burlington's investment in those blocks as of 30 August 2009. The Tribunal dismissed contrary relief and reserved costs.

   Participants

   Burlington Resources Inc.

   Expert

   James Crawford (For: Burlington Resources Inc.)

   Republic of Ecuador

   International Centre for Settlement of Investment Disputes

   Arbitrator

   Gabrielle Kaufmann-Kohler

   Arbitrator

   Brigitte Stern

   Arbitrator

   Francisco Orrego Vicuna

   Other

   Witness

   Christian Davalos

   Authorities cited

   4

   • Treaty between the United States and Ecuador concerning the Encouragement and Reciprocal Protection of Investments, 11 May 1997
     treaty
   • Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Washington, DC, 1965
     convention
   • Ecuadorian Hydrocarbons Law
     statute
   • Ecuadorian Law No. 2006-42
     statute
4. 14 December 2012Arbitration

   14 December 2012Arbitration

   Dissenting Opinion of Arbitrator Orrego Vicuna

   International Centre for Settlement of Investment Disputes

   Decision summary

   Arbitrator Orrego Vicuna agreed that Ecuador's taking of the Blocks constituted expropriation but disagreed with the majority's narrower treatment of additional contractual and Treaty rights.

   Participants

   International Centre for Settlement of Investment Disputes

   Arbitrator

   Francisco Orrego Vicuna

   Authorities cited

   1

   • Treaty between the United States and Ecuador concerning the Encouragement and Reciprocal Protection of Investments, 11 May 1997
     treaty

   11 months and 29 days later · 364 days

5. 13 December 2013Arbitration

   13 December 2013Arbitration

   Decision on the Proposal for Disqualification of Professor Francisco Orrego Vicuna

   International Centre for Settlement of Investment Disputes

   Decision summary

   The Chairman upheld the Republic of Ecuador's proposal to disqualify Professor Francisco Orrego Vicuna, finding an appearance of lack of impartiality in his explanations concerning counsel for Ecuador; other grounds were dismissed as untimely or unsupported.

   Participants

   Republic of Ecuador

   Burlington Resources Inc.

   International Centre for Settlement of Investment Disputes

   Arbitrator

   Francisco Orrego Vicuna

   Other

   Judge

   Jim Yong Kim

   Authorities cited

   1

   • Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Washington, DC, 1965
     convention

   3 years, 1 month and 25 days later · 1152 days

6. 7 February 2017Arbitration

   7 February 2017Arbitration

   Decision on Counterclaims

   International Centre for Settlement of Investment Disputes

   Decision summary

   The Tribunal held Burlington liable to Ecuador for environmental restoration costs in Blocks 7 and 21 and for infrastructure remediation costs, ordered payment of USD 39,199,373 and USD 2,577,119.77 respectively with simple interest at LIBOR for three-month borrowings plus two percent, reserved costs, and dismissed the other requests for relief on the counterclaims.

   Participants

   Burlington Resources Inc.

   Republic of Ecuador

   International Centre for Settlement of Investment Disputes

   Arbitrator

   Stephen Drymer

   Arbitrator

   Gabrielle Kaufmann-Kohler

   Arbitrator

   Brigitte Stern

   Tribunal secretary

   Magnus Jesko Langer

   Other

   Expert

   Christopher P. Moyes

   Expert

   Hernan Perez Loose

   Expert

   Richard F. Strickland

   Witness

   John Crick

   Witness

   James P. Johnson

   Authorities cited

   3

   • Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Washington, DC, 1965
     convention
   • Ecuadorian Civil Code
     statute
   • Ecuadorian Commercial Code
     statute
7. 7 February 2017Arbitration

   7 February 2017Arbitration

   Decision on Reconsideration and Award

   International Centre for Settlement of Investment Disputes

   Decision summary

   The Tribunal denied Ecuador's motion for reconsideration and its jurisdictional and admissibility objections. It ordered Ecuador to pay Burlington USD 379,802,267 with compounded annual interest at LIBOR for three-month borrowings plus two percent from 1 September 2016 until payment. It ordered Burlington to pay Petroecuador USD 48,589.72 with the same interest terms, allocated arbitration costs 65% to Ecuador and 35% to Burlington, ordered each party to bear its own legal and expert costs, and dismissed all other claims.

   Participants

   Burlington Resources Inc.

   Republic of Ecuador

   Petroecuador

   International Centre for Settlement of Investment Disputes

   Arbitrator

   Gabrielle Kaufmann-Kohler

   Arbitrator

   Brigitte Stern

   Arbitrator

   Stephen Drymer

   Tribunal secretary

   Magnus Jesko Langer

   Other

   Expert

   Christopher P. Moyes

   Expert

   Hernan Perez Loose

   Expert

   Richard F. Strickland

   Authorities cited

   1

   • Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Washington, DC, 1965
     convention

   6 months and 24 days later · 205 days

8. 31 August 2017Arbitration

   31 August 2017Arbitration

   Decision on Stay of Enforcement of the Award

   International Centre for Settlement of Investment Disputes

   Decision summary

   The ad hoc Committee held that Ecuador had not proved circumstances requiring continuation of the stay, terminated the provisional stay of enforcement, reserved its decision on costs, and dismissed all other requests.

   Participants

   Burlington Resources Inc.

   Republic of Ecuador

   International Centre for Settlement of Investment Disputes

   Arbitrator

   Andres Rigo Sureda

   Arbitrator

   Piero Bernardini

   Arbitrator

   Vera Van Houtte

   Tribunal secretary

   Alicia Martin Blanco

   Authorities cited

   1

   • Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Washington, DC, 1965
     convention