Ecuador´s Defense on the claimants abuse of process in International Investment Arbitration

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Ecuador ’s defense on the claimants abuse of process in international investment arbitration

dollars in financial benefits. In April 2015, during the hearing’s first week, the State’s defense dedicated two days to former Judge Alberto Guerra’s crossexamination. Two days of indignation and shame. Two days asking myself: how is it possible that Chevron and its confessed corrupt witness have the nerve to appear before the Tribunal aspiring to gain credibility. Guerra—who dances to the music that is played for him -- has moved on to better pastures since Chevron decided to buy his story and computer. Since then, Guerra was relocated to the United States, under an alleged sui generis “Chevron witness protection program”, with a house, salary, and legal costs for immigration, tax and other matters. The Tribunal should never have allowed a witness, under these conditions, to be heard in this case. The story of the development of this international arbitration, will allow the reader to assess how a Tribunal in the investment arbitration has handled such a complex dispute. During the first years of this arbitration, the Tribunal seemed not to have ears for Ecuador’s 20

requests. The State’s concern was so great that in August 2014 we filed a request that the Tribunal recuse itself from continuing to hear the case. The State noted what it believed was a pattern of uneven treatment by the Tribunal, giving prompt attention to Chevron’s every request, and including its repeated requests for extraordinary interim relief, yet failing to act over the course of years on Ecuador’s request to the Tribunal to order Chevron to terminate its smear campaign against the country, or its legislative campaign against U.S. trade preferences for Ecuadorian businesses. The Tribunal did not accept Ecuador’s recusal motion, a decision accepted and affirmed by the Secretary of the Permanent Court of Arbitration based in The Hague. And although the Tribunal did not accept the petition filed by Ecuador, nor did the Secretary of the Permanent Court of Arbitration based in The Hague under the UNCITRAL Rules, it is apparent that Ecuador had sufficient justification to submit a recusal request. On June 18, 2015, the Tribunal issued a procedural order (the Omnibus order, as the Tribunal called it), through which it decided on

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