Occidental Exploration and Production Company vRepublic of Ecuador: CA 9 Sep 2005

The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to hear the appeal.
Held: The appeal was dismissed. The treaty was intended to encourage bilateral trading between the US and Ecuador, and the provision for resolution of disputes was part of that. This was a determination of private rights, and not an adjudication as between states. English law had been made the curial law of the arbitration, though international law was to be preferred as the agreement to arbitrate. Here there was no attempt to invoke at national level an international treaty, and the general law of non-justiciability did not apply: ‘We see no good reason why any arbitration held pursuant to such an agreement, or any supervisory role which the court of the place of arbitration may have in relation to any such arbitration, should be categorised as being concerned with ‘transactions between States’ so as to invoke the principle of non-justiciability. ‘ The court described the international system for arbitrating banking disputes, saying: ‘The Treaty involves, on any view, a deliberate attempt to ensure for private investors the benefits and protection of consensual arbitration; and this is an aim to which national courts should, in an internationalist spirit and because it has been agreed between States at an international level, aspire to give effect.’

Mance LJ
[2005] EWCA Civ 1116, Times 23-Sep-2005, [2006] 2 WLR 70, [2006] QB 432
Arbitration Act 1996 67
England and Wales
Appeal fromEcuador v Occidental Exploration and Production Company ComC 29-Apr-2005
English law doctrine of ‘non – justiciability’. . .
CitedButtes Gas and Oil Co v Hammer (No 3) HL 1981
In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .
CitedJH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
CitedThe Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom and Others QBD 17-Dec-2002
The applicant sought an advisory order from the court to interpret the meaning of United Nations Security Council resolution no 1441 with regard to steps to be taken under the resolution in the event of the failure of Iraq to comply.
Held: A . .
CitedCase of the Mavrommatis Palestine Concessions 1924
(Permanent International Court of Justice) ‘It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been . .
CitedJurisdiction of the Courts of Danzig Case (the Beamtenabkommen) ICJ 1928
The Beamtenabkommen regulated the employment conditions of Danzig railway employees who had, after the First World War, passed into the service of the Polish Railways Administration. Poland’s contention that this treaty only created inter-State . .
CitedIn re Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) (second phase) ICJ 5-Feb-1970
ICJ The claim arose out of the adjudication in bankruptcy in Spain of Barcelona Traction, a company incorporated in Canada. Its object was to seek reparation for damage alleged by Belgium to have been sustained . .
CitedEnron Corporation v The Argentine Republic ICSID 14-Jan-2004
The Barcelona Traction case ‘has been held not to be controlling in investment claims such as the present, as it deals with the separate question of diplomatic protection in a particular setting’ and that: ‘what the State of nationality of the . .
CitedRegina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .
CitedPhilippson v Imperial Airways Ltd HL 1939
Where parties have entered into a domestic contract in which they have chosen to incorporate the terms of the treaty, the court may be called upon to interpret the treaty for the purposes of ascertaining the rights and obligations of the parties . .
CitedCamuzzi International SA v The Argentine Republic (No 2) ICSID 11-May-2005
(Spanish Text) Diplomatic protection ‘cannot be considered the general rule in the system of international law presently governing the matter, but as a residual mechanism available when the affected individual has no direct channel in its own . .
CitedCamuzzi International SA v Argentine Republic ICSID 11-May-2005
Of the Barcelona Traction case:- ‘this decision of the International Court of Justice referred particularly to the protection that could be expected by the shareholders in this case, but specifying that they can enjoy other protection, if there is a . .
CitedGas Natural SDG SA v The Argentine Republic ICSID 2003
‘The scheme of both the ICSID Convention and the bilateral investment treaties is that in this circumstance, the foreign investor acquires rights under the Convention and Treaty, including in particular the standing to initiate international . .
CitedWestland Helicopters Ltd v Arab Organisation for Industrialisation 1995
International arbitration proceedings under a joint venture agreement had led to an award in Westland’s favour against the Organisation. The award was converted into a judgment and Westland obtained garnishee orders nisi against six London banks. . .
CitedBritish Airways Board v Laker Airways Limited HL 1985
The plaintiffs tried to restrain the defendant from pursuing an action in the US courts claiming that the plaintiffs had acted together in an unlawful conspiracy to undermine the defendant’s business.
Held: The action in the US were unlawful . .
CitedMaclaine Watson and Co Ltd v International Tin Council HL 2-Jan-1989
The International Tin Council was a body constituted by an international treaty not incorporated into law in the United Kingdom. The ITC was also created a legal person in the United Kingdom by article 5 1972 Order.
Held: As a legal person in . .
CitedSecretary of State in Council of India v Kamachee Boye Sahab PC 9-Jul-1859
‘The transactions of independent states between each other are governed by other laws than those which municipal courts administer: such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may . .
CitedRustomjee v The Queen QBD 1876
The Sovereign acts ‘throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the . .
CitedMaclaine Watson and Co Ltd v International Tin Council (No. 2) CA 1988
When the ITC did not satisfy an arbitral award made against it, the judgment creditor sought to discover where its assets could be found. Application to the Court was made under RSC 0.48 of the Supreme Court Act 1981 and under the Court’s inherent . .
CitedFothergill v Monarch Airlines Ltd HL 10-Jul-1980
The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the . .
CitedZoernsch v Waldock CA 1964
A claim was lodged against a former president as well as the current secretary of the European Commission of Human Rights. The former president, Sir Humphrey Waldock, was under the 1960 Order entitled to ‘the like immunity from legal process as is . .
CitedPost Office v Estuary Radio Ltd CA 1968
On the proper inerpretation of the legislation, the extent of application of the legislative regime is determined by reference to the concept of the UK’s territorial waters as defined from time to time by the Crown. When the exercise of the Royal . .
CitedBlackburn v Attorney-General CA 10-May-1971
The complainant sought to argue that entry to Europe would be unlawful in that it involved surrender of the sovereignty of the Queen in Parliament. The respondent accepted that the Bill would involve some surrender of power, but that it was a lawful . .
CitedHenderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
CitedDallal v Bank Mellat 1986
Any choice of international law to govern an agreement to arbitrate should be express. . .
CitedArab Monetary Fund v Hashim HL 1991
Lord Templeman said: ‘passages extracted and amassed from a lengthy speech deal with different issues and different facts’. . .
CitedA v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
CitedRegina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
CitedRegina v Lyons, Parnes, Ronson, Saunders HL 15-Nov-2002
The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
CitedJones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
CitedCase Concerning East Timor (Portugal v Australia) ICJ 18-Jul-1995
Indonesia not accepting jurisdiction of International Court of Justice not bound by it. The Court refused, in the absence of Indonesia as a party, to entertain a claim brought by Portugal challenging Australia’s right to conclude a treaty with . .
CitedThomas Cook and James Charles Cook v Sir James Gordon Sprigg PC 1-Aug-1899
Municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law.
(Cape of Good . .

Cited by:
See AlsoEcuador v Occidental Exploration and Production Co ComC 2-Mar-2006
. .
CitedAl-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
CitedETI Euro Telecom International Nv v Republic of Bolivia and Another CA 28-Jul-2008
The parties were involved in an international investment dispute arbitration. An injunction had been sought to prevent repatriation of assets to Bolivia.
Held: The international system of arbitration was not subject to any national law and did . .
See AlsoEcuador v Occidental Exploration and Production Co CA 4-Jul-2007
Appeal against refusal to set aside arbitration award for want of jurisdiction. . .
CitedETI Euro Telecom International Nv v Republic of Bolivia and Another CA 28-Jul-2008
The parties were involved in an international investment dispute arbitration. An injunction had been sought to prevent repatriation of assets to Bolivia.
Held: The international system of arbitration was not subject to any national law and did . .

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Arbitration, International

Updated: 18 December 2021; Ref: scu.230011