8 October 2012
Finding of contributory negligence by ICSID Tribunal
On 5 October, the tribunal in Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of Ecuador, ICSID Case No. ARB/06/11 issues its final award.
The tribunal awarded Occidental about $1.77 billion, having found both expropriation and breach of the duty of fair and equitable treatment. That sum reflected a 25% reduction on account of contributory negligence by Occidental.
The Tribunal found that “it is not any contribution by the injured party to the damage which it has suffered which will trigger a finding of contributory negligence. The contribution must be material and significant. In this regard, the Tribunal has a wide margin of discretion in apportioning fault.” (para. 670)