Dissenter opined that six-month waiting period had run from the parties’ first sign of disagreement over Ecuador’s measures, and further negotiations would have been futile

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Ecuador’s other jurisdictional objections deemed closely related to the merits

Tribunal majority clarified the nature of the obligation to negotiate within the six-month period, viewing it as a “fundamental requirement” of jurisdiction

Majority found that six-month waiting period starts running only when claimant has alleged treaty breach per BIT’s definition of “investment dispute”

Notifications under Article 25(4) of ICSID Convention may not unilaterally modify treaty-based offer to arbitrate

Murphy filed but then withdrew request for provisional measures

Background: Ecuador imposed windfall levy on its oil sector and attempted to obviate consent to ICSID arbitration over natural resources disputes, leading to a series of arbitrations

Respondent doubles down on efforts to set aside tribunal’s decisions

Ecuador cannot contradict its own acts

Majority sees no public policy issue in ordering that Ecuador shall comply with its contractual obligations, but affords right to raise further objections to the state

Dissenter sees no contractual obligation for Ecuador to respect the determinations of the 2018 Award when ruling on Petromanabí’s share of the Liquidation Value

Tribunal majority sees contractual commitment to respect determination of appropriate compensation, irrespective of parties’ involvement in underlying arbitration

Majority declines to rule on respondent’s objection based on sole principle of procedural fairness, seeing risk of unauthorised decision ex aequo et bono

Dissenter opines that Rule 32(2) does not apply at all

Article 32(2) of UNCITRAL Arbitration Rules has limited relevance due to lack of res judicata effect

Background: Tribunal is called on to adjudicate effect of previous award in context where res judicata does not apply

Ecuador resorts to Chilean courts to set aside the Partial Award

Costs lie where they fall

Arbitrators see no abuse of rights

Tribunal stresses binding effect of previous award under UNCITRAL rules, inviting parties to make additional submissions on the matter

Tribunal finds that ‘triple identity’ test is not met

Arbitrators treat res judicata as procedural matter

Tribunal considers that Ecuador TLC could not have waived third party rights

Whether claims are time-barred is a matter of substance, rather than procedure, so law of the seat does not apply

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