1. Courts and Arbitrations:
How they co-exist

2. Interactions between courts and tribunals
UNICTRAL Model Law (2006) empowers the tribunal to run its own proceedings with limited judicial intervention:
Article 16 – Kompetenz/kompetenz
Article 17 – Power to order interim measures
Article 17(H) and (I) – Recognition and enforcement, and the limited grounds for challenge
Article 19 – Rules of procedure
Article Court assistance in taking evidence

3. Interactions between courts and tribunals
Courts can facilitate arbitral proceedings by:
staying improperly brought court actions
granting interim relief (or enforcing relief granted by tribunal)
ordering production against third party in aid of arbitral proceedings (e.g. USC Title 28 Section 1782 discovery)
In Chevron v. Ecuador, both parties to this BIT dispute filed numerous Section 1782 proceedings seeking US discovery from non-party witnesses. In its application for interim relief, Chevron presented the tribunal with evidence obtained from these requests (including depositions and s).
deciding appeals and set-aside applications
enforcing arbitral awards

4. Two examples:
Taizhou Haopu Investment Co., Ltd. v. Wicor Holding AG (2016, Taizhou Court, China)
Taizhou Court refused to enforce ICC award rendered in Hong Kong based on public policy.
A previous PRC Court ruled in another dispute between the same parties on the same contract that under Chinese law, an arbitration agreement must select an arbitral institution to be valid. The parties had only selected the ICC Rules, but did not appoint an arbitral institution.
Arbitration agreement was found to be invalid.
The PRC Court found it would be contrary to social public interest to recognize and enforce an ICC award rendered after the earlier ruling that the arbitration clause was unenforceable.

5. Two examples: Commisa v. Pemex, (2nd Cir, 2016)
Arbitration between Commisa (Mexican subsidiary of US corp) and Pemex (subsidiary of Mexico state-owned oil corp) seated in Mexico.
After the arbitration claim was brought, but before the tribunal issued $300 million award in favour of Commisa, Mexico passed laws that rendered the main claim in the arbitration inarbitrable.
Mexican court annulled arbitral award on basis that Commisa's claims could not be arbitrated under new law.
US 2nd Circuit Court enforced arbitral award even though it had been set aside at the seat of arbitration.
"This case requires us to reconcile two settled principles that militate in favour of opposite results: a district court's discretion to confirm an award, and the comity owed to a foreign court's ruling on the validity of an arbitral award rendered in that country, here, Mexico."

6. The Start of the Chevron Saga: Oil and Gas Operations in Ecuador
In 1993, a group of Oriente residents, represented by a New York lawyer, Stephen Donziger, among others, commenced a class action in the Southern District of New York, seeking billions of dollars of damages for environmental damage in Ecuador and injury to the health of the plaintiffs.  "Thus began this conflict which 'must be among the most extensively [chronicled] in the history of the American federal judiciary.'"  
1965 – Ecuador granted a concession to Texaco (Tex-Pet.) subsidiary
1967 – Struck oil
1972 and following – PetroEcuador acquires first a minority interest and then a majority interest in the joint venture
1989 – PetroEcuador took over operation of the pipeline
1990 – PetroEcuador became operator of the project

7. Releases and Settlement Agreements
1992 – Concession Agreements expire and Tex-Pet's interest reverted to PetroEcuador (sole owner and operator)
– Tex-Pet and PetroEcuador enter into Settlement Agreements and carry out remediation plans
1998 – Ecuador and PetroEcuador release Tex-Pet

8. Ecuadorian Action
Lago Agrio plaintiffs representing 30,000 indigenous villagers sue Chevron (Texaco's successor) in Ecuador
Invoked retroactive application of Environment Management Act
2011 – Judge Zambrano renders $17.2 billion award, later reduced to $8.646 billion on appeal

9. A Word about the Parties and Proceedings
Texaco subsidiary
Petro-Ecuador
Donzinger et al.
Chevron and its global subsidiaries
Lago Agrio plaintiffs
Ecuador
Proceedings:
Ecuadorian action
US fraud proceedings
Arbitration under BIT
Enforcement proceedings in Canada, Brazil and Argentina

10. US Proceedings
Findings by Lewis Kaplan J.– Ecuadorian judgment was obtained by:
Falsifying one expert report
Tampering with expert evidence
Secret ex parte meetings with Judge
Ghost writing expert report and judgment!
Bribing trial judge and his ghost writer
Chevron Corp v. Donziger, 768 F Supp (2d) 581

11. Arbitration under BIT (Dr. Horacio A
Arbitration under BIT (Dr. Horacio A. Grigera Naón, Professor Vaughan Lowe and V. V. Veeder)
Chevron and Texaco commenced UNCITRAL arbitration under Ecuador-US BIT
2 interim orders:
May 14, 2010
February 9, 2011
3 interim awards:
January 25, 2012
February 16, 2012
February 7, 2013

12. For example: Second Interim Award
"… the Tribunal hereby orders: … the Respondent (whether by its judicial, legislative or executive branches) to take all measures necessary to suspend or cause to be suspended the enforcement and recognition within and without Ecuador of the judgments of the Provincial Court of Sucmbios, Sole Division …"
 Interim Awards upheld by District Court in the Hague

13. Enforcement Proceedings in Canada
Lago Agrio plaintiffs sued in Ontario to enforce Ecuadorian judgment against Chevron Canada
Supreme Court of Canada held Ontario had jurisdiction
Ontario Court granted summary judgment to Chevron Canada – upheld corporate veil defence

14. Brazil and Argentina Brazil: Argentina
enforcement proceedings in June 2012
Deputy Attorney General recommended against enforcement due to fraud
Argentina
Enforcement proceedings against subsidiary in November 2012
Enforcement refused – upheld corporate veil

15. David R. Haigh, Q.C. drh@bdplaw.com
Concluding Remarks
David R. Haigh, Q.C.