Case of the Day: Philippines v. China

Hugo Grotius John Selden

An arbitral tribunal constituted under Annex VII to the UN Convention on the Law of the Sea issued its long-awaited Award in the case the Philippines brought against China arising out of China’s claims in the South China Sea. I’m not a specialist in this area and so I’m not going to offer any detailed comment—you probably want to look to Julian Ku or others for that. Most experts predicted this was an easy win for the Philippines, and that’s how it turned out. The key point, it seems to me, was the tribunal’s decision that China’s maritime entitlements are defined by the Convention, and that even if China had some kind of “historic rights” (the nature and justification of which have never been made clear), they were extinguished when China acceded to the Convention. You can’t own the sea. There was more. Because some features claimed by China did not create exclusive economic zones, areas of the sea around those features were, according to the tribunal, within the Philippines’ exclusive economic zone, and China had wrongfully interfered with the Philippines’ activity within its EEZ. Some features claimed by China were low-tide elevations that did not even give rise to a twelve-mile territorial sea.
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Lago Agrio: Ecuador Wins A Round In The Investment Treaty Arbitration

Ecuador had a win yesterday in its investment treaty arbitration with Chevron. The tribunal issued its decision on track 1B of the case.
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Lago Agrio: The New Arbitral Award

Okay, so here’s the deal. Yesterday, the Wall Street Journal reported that the tribunal hearing the investment treaty dispute between Chevron and Ecuador “issued a partial award in favor of Chevron Corp. and found the U.S. oil company isn’t liable for collective environmental damage claims in Ecuador.” Relying on the article, I put up a quick post noting that the tribunal had issued a new award determining that Chevron was “not liable.” Now, I could hide behind my qualifiers—I wrote that I hadn’t seen the award and that it wasn’t clear to me what “not liable” meant—but the fact is I should have waited to read the award, because upon reading it, it became clear that my quick post was too simplistic. Now that we’ve had a chance to see the award, here’s the situation as far as I can tell.

The tribunal decided, first, that although Chevron itself was not a party to the release that Ecuador had granted to TexPet, under Ecuadoran law Chevron was among the parties released. But the tribunal also made it clear that Ecuador did not have the power to release the claims that the Lago Agrio plaintiffs, as individuals, had against Chevron:

As worded, the release does not extend to any claims made by third persons in respect of their own individual rights separate from the Respondent under Ecuadorian or other laws.

However—and this is the key clarification—the tribunal left open the question whether the claims the Lago Agrio plaintiffs had asserted were individual claims or claims based on “collective” or “diffuse” rights under Ecuadoran law. If the claims are individual claims, then presumably the tribunal will ultimately decide that the release doesn’t bar them. But according to the WSJ article, the LAPs have always characterized their claims as collective claims. If the claims are collective claims, then things will get interesting.

I do think that Chevron will be looking for opportunities to preclude the LAPs in New York from making arguments contrary to the tribunal’s findings or conclusions.