Tag Archives: BIT

“Intellectual Whiplash”: One Day, Two International Cases, and Two Different Results at the U.S. Supreme Court

I invited Chuck Kotuby to do a guest post on the Lozano case, as he is Letters Blogatory’s resident expert on the Hague Convention on the Civil Aspects of Child Abduction, and lo and behold, he wrote up the BG Group v. Argentina case as well! Of course, the two cases, decided on the same day, have to be read together, as Chief Justice Roberts’s dissent in the BG Group case makes clear. For prior coverage of BG Group, readers may want to review my posts on the District Court decision in January 2011 and the D.C. Circuit decision in January 2012. Chuck’s earlier coverage of the Child Abduction Convention can be found in his post on Chafin v. Chafin. Today’s post is cross-posted at the excellent Conflict of Laws blog.
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Case of the Day: Republic of Ecuador v. Hinchee

The case of the day is Republic of Ecuador v. Hinchee (11th Cir. 2013). I covered the case in the district court back in December 2012. You may want to read this post in conjunction with my post on Ecuador v. Bjorkman, a similar case in the Tenth Circuit.

As in Bjorkman, the main question was the scope of protection afforded expert witness materials under the work-product doctrine. So the concerns of the case are not all that relevant to Letters Blogatory readers. More interesting is the outcome: as in Bjorkman, Ecuador prevailed and should be able to make use of the Hinchee material in the BIT arbitration.

Next up: the MacKay case, a similar case pending in the Ninth Circuit, which was argued in December 2013. I predict a similar outcome.

Case of the Day: Chevron Corp. v. Republic of Ecuador

Today’s case of the day, Chevron Corp. v. Republic of Ecuador (D.D.C. 2013), is the latest installment in Chevron’s efforts to enforce a $96 million arbitral award it obtained against Ecuador in an investment treaty arbitration held in the Hague under the US/Ecuador bilateral investment treaty. This arbitration arose out of Chevron’s claim that it had suffered damages on account of undue delay in the settlement of lawsuits TexPet (of which Chevron was a shareholder) had brought against Ecuador in the early 1990s.

I first noted the arbitration in May 2012, when I reported on the decision of a court in the Netherlands rejecting Ecuador’s attempt to have the award set aside. I noted Chevron’s motion to confirm in Washington in July 2012.

Ecuador raised four arguments against confirmation. First, it made a novel argument that the court lacked jurisdiction under the FSIA because it never agreed to arbitration of the underlying dispute about delay damages, the award was not made “pursuant to … an agreement to arbitrate,” as required by 28 U.S.C. § 1605(a)(6) for subject-matter jurisdiction to exist. But there is apparently no authority for the view that questions of arbitrability can be litigated twice, once to the arbitrator (or an appropriate court) on the merits and once as a jurisdictional matter when a foreign state seeks to block confirmation in a US court. The only appropriate questions, according to the judge, are (1) whether the award was made pursuant to an arbitration agreement to which the foreign state was party, and (2) whether the award “is or may be” governed by an agreement such as the New York Convention.

Second, Ecuador argued the same point as a matter of the merits rather than as a jurisdictional matter. Under Article V(1)(c) of the Convention, the court can refuse confirmation if the award “deals with a difference … not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration.” But since there was an agreement to arbitrate (namely, the US/Ecuador BIT, which the court construed, in line with the precedents, as a standing invitation to arbitrate certain kinds of disputes), and since incorporation of the UNCITRAL Rules is, under D.C. Circuit precedent, “clear and unmistakable evidence” that the parties intended the arbitrators to determine questions of arbitrability, the judge held that he could engage only in a deferential review of the arbitrators’ decision. The judge noted the unchallenged impartiality of the arbitrators, the length of the hearings devoted to the arbitrability issue, and the length and comprehensiveness of the arbitrators’ decision. He also approved of the tribunals’ decision construing the BIT on the merits, though I do not cover the reasoning here.

Third, Ecuador argued that the award was contrary to public policy (Article V(2) of the Convention creates a public policy defense to confirmation). But the judge rejected Ecuador’s argument without much effort, noting that it was “primarily a rehashing of its position that the Award was beyond the the scope of the submission to arbitration.” Ecuador also claimed that the award violated its sovereignty—this seems like a complete non-starter in the realm of investment treaty arbitration.

Last, Ecuador sought a stay while its efforts to set aside the award continue in the Hague. A stay is permissible under Article VI of the Convention, but according to the judge, Ecuador’s briefs barely mentioned the factors the court is to consider. The judge did his own analysis and found that the factors favored Chevron. The closest question was whether “the award sought to be enforced will receive grater scrutiny in the foreign proceedings under a less deferential standard of review.” The judge found that the Dutch court would apply a standard that did not differ too much from the standard the US court applied on questions of confirmation, and he noted that “the fact that the Dutch District Court has already denied the motion to set aside suggests that to the extent the standard is any more searching, it has not helped Ecuador in its attempt to resist confirmation.”