Lago Agrio: The Tribunal Makes A Site Visit

The tribunal hearing the BIT dispute between Ecuador and Chevron has made site visits to three sites in the Ecuadoran Amazon. The tribunal, along with the lawyers and experts for both sides, visited the Aguarico 6, Lago Agrio 2, and Shushufindi 34 sites. You can follow the links to read copies of the transcript of the proceedings at the site visits.

From Ecuador’s perspective, the point of these site visits is to show the tribunal that there there is environmental damage that can be attributed to TexPet rather than, say, to PetroEcuador. At Shushufindi 34, for example, Ecuador observed that PetroEcuador never drilled for oil at the site, that the oil at the site was still in liquid form and still containing volatile compounds, and that one of the pits at the site was not listed on the remedial action plan. Of course, Chevron has responses to these points, some factual and some legal. But nevertheless, I think for the Ecuadorans it is probably a good thing for the tribunal to see the sites for itself. I remember from my visit to Aguarico 4 that there is a bit of res ipsa loquitur that works in favor of the Ecuadoran position. There are, of course, experts on both sides of the case, but when you are at the pit, you can see the oil, and a layman can simply look at the topography of the site and see how the oil would likely migrate. On the other hand, as the transcripts show, when you really get down in the weeds and start to dispute, for example, the methods used to detect the levels of harmful compounds or the extent of the migration of the oil, it’s hard for non-experts to understand what’s really going on.

I hope to have more analysis for you on this soon!

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

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