24. Please provide a list of any articles or books that discuss this country’s investment treaties.
‘Ecuador to Denounce Remaining BITs’, Global Arbitration Review (30 October 2009), available at www.globalarbitrationreview.com/news/article/19251
Jonathan C. Hamilton, Omar E. Garcia-Bolivar, and Hernando Otero, Latin American Investment Protections: Comparative Perspectives on Laws, Treaties, and Disputes for Investors, States and Counsel, Martinus Nijhoff Publishers, 2012.
Juan Manuel Marchán Maldonado, ‘El tratamiento del arbitraje en la nueva Constitución ecuatoriana’, Revista del Club Español de Arbitraje. Wolters Kluwer España, 2008.
Marco Tulio Montañés y Xavier Andrade Cadena, ‘Introductory Note to Ecuador’s Notice under ICSID article 25(4)’, International Legal Materials, 47, American Society of International Law, Washington DC, 2008.
Omar García-Bolívar et al., Recognition and Enforcement of International Commercial Arbitral Awards in Latin America: Law Practice and Leading Cases, Brill Nijhoff, 2014.
Rodrigo Jijón y Juan Manuel Marchán Maldonado, ‘National and International Arbitration in Ecuador’, The Arbitration Review of the Americas 2014 , Global Arbitration Review.
Thomas E Carbonneau, Mary H Moura, Latin American Investment Treaty Arbitration: The Controversies and Conflicts, Wolters Kluwer International Law, November 2008.
1 This report takes into account all BITs signed by Ecuador although some of them have been denounced.
2 While not all BITs provide for ISDS, all treaties provide for state-to-state arbitration.
3 Article XIII (3)(b) ‘An investor may submit a dispute as referred to in paragraph (1) to arbitration in accordance with paragraph (4) only if: […] (b) the investor has waived its right to initiate or continue any other proceedings in relation to the measure that is alleged to be in breach of this Agreement before the courts or tribunals of the contracting party concerned or in a dispute settlement procedure of any kind’.
4 The Preamble refers to ‘fair and equitable treatment’.
5 The MFN treatment applies only in cases of compensation for losses and application of other rules. See BIT with Dominican Republic article 4(2) and BIT with Honduras article VI.
6 The Preamble refers to ‘fair and equitable conditions’.
7 The BIT with Switzerland does not provide arbitration between contracting parties and investors of the other contracting party, it only offers state-to-state arbitration.
8 By diplomatic notes dated 18 May 1999, the contracting parties agreed to extend this BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.
9 The BIT with Canada only applies this precondition to investors from Ecuador and not to those from Canada, article I(h)(ii).
10 The BIT with Switzerland only applies this precondition to investors from Ecuador and not to those from Switzerland, article 6(b)(ii).
11 According to the BIT with United Kingdom, companies are legal persons constituted in accordance with the law in force of the contracting party or domiciled in the territory of such party, article I(d)(2). This provision only applies to investors from Ecuador and not to those from United Kingdom. This BIT is different from the Canadian and the Swiss BITs as is does not impose both conditions (ie, incorporation and domicile) for investors to benefit from the treaty.
12 These provisions only apply to investors from Germany and Switzerland and not to those from Ecuador.
13 In Perenco v Ecuador, the Tribunal held that, absent any qualifier such as ‘directly’, the ordinary meaning of the term ‘controlled’ encompasses direct and indirect control. See Decision on jurisdiction and liability of 12 September 2014, ICSID Case ARB/08/6, paras. 509–510.
14 See BIT with the United States, article 1(2): ‘Each Party reserves the right to deny to any company the advantages of this Treaty if nationals of any third country control such company and, in the case of a company of the other Party, that company has no substantial business activities in the territory of the other Party or is controlled by nationals of a third country with which the denying Party does not maintain normal economic relations’.
15 This provision only applies to the definition of investor in the case of Canada. The definition of investor in the case of Ecuador is different, as it only requires natural persons to be nationals of Ecuador pursuant to its legislation.
16 The BIT with Cuba only applies this provision to investors from Cuba and not to those from Ecuador, article I(2).
17 See Protocol dated 21 March 1996, section 1(b).
18 See BIT with Canada, article 1(h).
19 The BIT with the United States provides the requirement that a ‘claim to money’ be associated with an investment. Such requirement allow to exclude claims arising solely from trade transactions, such as a simple movement of goods across a border, from being considered investments covered by the Treaty.
20 As regards intellectual property rights, the Canadian BIT determines that a contracting party may derogate from the most-favoured-nation treatment and the national treatment in a manner that is consistent with the agreement establishing the World Trade Organization done at Marrakesh, April 1994 (article VI (a)).
21 See BIT with Italy, Protocol dated 23 May 2013, section 1.
22 See BIT with Canada, article I(d) and (e) and article 11.
23 See BIT with France, article 8.
24 See BIT with Germany, Protocol dated 21 March 1996, Section (2)(b).
25 The BIT with Costa Rica specifically includes the airspace. See article 1(4)(b).
26 See BIT with France, article 2.
27 See BIT with Finland, article 1(4).
28 See BIT with Germany, Protocol dated 21 March 1996, Section (2)(a).
29 See BIT with Canada, article VI(3).
30 As regards Canada:
• social services (ie public law enforcement; correctional services; income security or insurance; social security or insurance; social welfare; public education; public training; health and child care);
• services in any other sector;
• government securities – as described in Standard Industrial Classification 8152;
• residency requirements for ownership of oceanfront land;
• measures implementing the Northwest Territories and the Yukon Oil and Gas Accords.
As regards Ecuador: ‘ownership of real estate (direct or indirect) within 50 kilometres of the borders of Ecuador, and within territories designated as reserved areas such as national parks, as established by the competent authorities of the Government of the Republic of Ecuador’. See Annex of BIT with Canada.
31 In Occidental Exploration and Production Company v Republic of Ecuador, the Tribunal stated that: ‘Although fair and equitable treatment is not defined in the Treaty, the Preamble clearly records the agreement of the parties that such treatment ‘is desirable in order to maintain a stable framework for investment and maximum effective utilisation of economic resources’. The stability of the legal and business framework is thus an essential element of fair and equitable treatment’. See LCIA Case No. UN3467, Final Award, 1 July 2004, para.183.
32 The BIT with Peru is more specific and includes reasons of national security, public necessity or social order. See article 4.
33 See BIT with the United States, article III (2).
34 The BIT with Italy determines that compensation shall be considered timely if made without undue delay and in any case within two months. See article 5(4).
35 The BIT with the United States refers to ‘commercially reasonable rate’. See article III(1).
36 See BIT with Italy, article 5(7).
37 The BIT with the United States determines that the investor has the right ‘to prompt review by the appropriate judicial or administrative authority of the other party to determine whether … such expropriation, and any associated compensation, conforms to the principles of international law’. See article III(2) .
38 The BIT with Argentina includes a specific exception relating to benefits and privileges resulting from agreements providing for concessional financing concluded by Argentina with Italy on 10 December 1987 and with Spain on 3 June 1988. See article III(5).
39 See article III(3): ‘bilateral or multilateral agreement establishing a free trade area or customs union; negotiated within the framework of the GATT; or relating to aviation, telecommunications transport networks and telecommunications transport services; fisheries; maritime matters, including salvages or financial services’.
40 Article VI (2): ‘(a) procurement by a government or state enterprise;
(b) subsidies or grants provided by a government or a state enterprise, including government-supported loans, guarantees and insurance;
(c) any measure denying investors of the other contracting party and their investments any rights or preferences provided to the aboriginal peoples of Canada; or
(d) any current or future foreign aid programme to promote economic development, whether under a bilateral agreement, or pursuant to a multilateral arrangement or agreement, such as the OECD Agreement on Export Credits’.
41 See BIT with United States, Protocol, sections 2 to 4.
42 In Occidental Exploration and Production Company v Republic of Ecuador, claimant argued that the absence of ‘in like situations’ in the MFN clause in the BITs with Spain and Argentina resulted in a less restrictive standard of national treatment than that found in the BIT with the United States, which refers to ‘in like situations’. The Tribunal did not address this issue, having found a national treatment breach in any event under BIT with the United States. See LCIA Case No. UN3467, Final Award, July 1, 2004, paras. 170, 173 and 178.
43 In Burlington Resources v The Republic of Ecuador, the Tribunal found that an umbrella clause claim is a treaty claim, not a contract claim. See Decision on Jurisdiction dated 2 June 2010, para. 189.
44 See BIT with Canada, article XVII and BIT with the United States, article IX.
45 See BIT with the United States Art. II(6); BIT with Canada, article V(2) and BIT with Dominican Republic, article 2(4).
46 In the case brought by EnCana Corporation against the Republic of Ecuador the award rendered by the Tribunal on 3 February 2006 rejected the claim alleging that this related to tax measures under article VII of the BIT.
47 The BIT with United Kingdom is the only one that does not specify the period of six months.
48 In Occidental Exploration and Production Company v Republic of Ecuador, the Tribunal stated that the ‘fork in the road’ mechanism assumes that the investor has made a choice between alternative avenues; this requires that the choice be made entirely free and not under any form of duress. See LCIA Case No. UN3467, Final Award, 1 July, 2004, paras. 60-61.
49 See the BIT with Germany, article 10(3).
50 See the BIT with Finland, article 10(3).
51 In Murphy Exploration and Production Company International v Republic of Ecuador, the claimant had initially complained about the windfall levy in a claim at ICSID in 2008. However, that claim was rejected on jurisdictional grounds in 2007, when the Tribunal ruled that the company had not complied with a six-month negotiation period mandated by the US-Ecuador BIT. See Decision 15 December 2010, ICSID Case No. ARB/08/4.
52 The BITs with China and Spain only refers to provisions contained in the treaty, the international law and the domestic law.
53 See Official Register No. 452 dated 23 October 2008.
54 See Official Register No. 258 dated 17 August 2010, available at
55 See note No. 749 sent to the Embassy of Romania in Peru on 14 July 2008.
56 According to the Political Constitution of the Republic of Ecuador and the Ecuadorian Laws the BIT withdrawal depends on the following public institutions:
• the President of the Republic who requests the withdrawal and is in charge of notifying the Contracting States regarding the decision;
• the Constitutional Court that determines the constitutionality and relevance of the President’s request; and
• the National Assembly which approves the treaty’s termination.
57 See Organic Law of the State Attorney General, article 3(d).
58 See Organic Law of the State Attorney General, article 8.
59 See List of Contracting States and other Signatories of the Convention (as of 11 April 2014), ICSID, available at https://icsid.worldbank.org/apps/ICSIDWEB/icsiddocs/Documents/List%20of%20Contracting%20States%20and%20Other%20Signatories%20of%20the%20Convention%20-%20Apr%202014.pdf
60 See New York Convention Countries, available at: www.newyorkconvention.org/contracting-states/list-of-contracting-states.
61 See Official Register 293 of 19 August 1961.
62 Official Register No. 145 dated 4 September 1997; Codification published in Official Register No. 417 dated 14 December 2006.
63 See Ecuador’s Code of Civil Procedure article 43 et seq.
64 The President of Ecuador Rafael Correa Delgado had publicly declared the government’s position vis-à-vis international arbitration and BITs. See El Ciudadano governmental online newspaper, UNASUR will have its arbitration center in 2015, October 3, 2014, available www.elciudadano.gob.ec/en/unasur-will-have-its-arbitration-center-in-2015/; Hay vínculos entre las transnacionales y los jueces de centros de arbitraje internacional, October 19, 2014, available at: www.elciudadano.gob.ec/hay-vinculos-entre-las-transnacionales-y-los-jueces-de-centros-de-arbitraje-internacional/; Centros de arbitraje internacional reflejan un mundo injusto a favor del capital, October 17, 2014, available at: www.elciudadano.gob.ec/centros-de-arbitraje-internacional-reflejan-un-mundo-injusto-a-favor-del-capital/; El orden mundial no es solo injusto, es inmoral. Todo está orientado a servir a los más poderosos (VIDEO), 24 October 2014, available at: www.elciudadano.gob.ec/el-orden-mundial-no-es-solo-injusto-es-inmoral-todo-esta-orientado-a-servir-a-los-mas-poderosos/
65 See Decree No. 1506 of 6 May 2013 (creating the Commission for the Citizen’s Audit of Reciprocal Investment Protection Treaties and the International Investment Arbitration), available at: http://decretos.cege.gob.ec/decretos/.
66 See Decree No. 1506 of 6 May 2013, article 2.