“The U.S.-Ecuador Bilateral Investment Treaty does not empower the tribunal to demand Ecuador violate its Constitution by interfering in the judiciary system.”

Karen, I don’t really understand your point. I think you are saying that Chevron is asking the arbitral tribunal to require Ecuador to violate its own constitution but that the Lago Agrio plaintiffs are asking the Inter-American Commission on Human Rights to require Ecuador to obey its own constitution, and that that’s the real difference between the two proceedings. I think the premise of your comment—that any outcome that requires Ecuador to violate its own constitution is necessarily wrong—is incorrect. Suppose that Ecuador amended its constitution to say that all foreign-owned oil fields immediately become the property of the state, and that no Ecuadoran court had jurisdiction to award compensation to a foreign oil company on account of the expropriation. Surely Ecuador could not defend itself before an investment treaty tribunal by saying that its constitution did not permit the relief the oil company sought, whether on separation of powers grounds or any other grounds based on its internal law!

Here is an American example of the point I’m making. A Mexican citizen, José Ernesto Medellín, was convicted of murder and sentenced to death by a state court in Texas. At the time of his arrest, Texas authorities did not inform him of his right to consular notification under the Vienna Convention on Consular Relations, a treaty to which the United States is a party. At the time, the US was also a party to the Optional Protocol to the Convention, which meant that the United States had submitted to the jurisdiction of the International Court of Justice any disputes about the application of the Convention. Mexico sued the United States in the ICJ, and the court held that Medellín was entitled to review of his sentence. There was no question that the United States was bound, as a matter of international law, by the ICJ’s judgment, and President Bush ordered the Texas court to give effect to the ICJ decision. Texas refused, essentially arguing that the Convention was not self-executing and that without implementing legislation, the President lacked the authority to direct the courts of Texas to do anything. The Supreme Court agreed with Texas, even though it also recognized that the United States had an obligation in international law to obey the ICJ judgment.

In other words, a country’s inability, under its internal law, to carry out its international obligations does not mean that the international obligations don’t exist.

This doesn’t mean that I think that the claim before the OAS is no good, or that Chevron’s claim in arbitration is sound. I really don’t have a view on the merits of either question. It’s just to say that I think that the point you objected to—my comparison of the two proceedings—is a good one.