The tribunal with a toolbox: On perenco v ecuador, black gold and shades of green

Abstract

The Tribunal in Perenco v Ecuador utilized a variety of tools to craft solutions to the complex issues that arose in this milestone case. These ranged from provisional measures and counterclaims to independent experts and environmental compensation, as well as the adjustment of damages to avoid double recovery and contemplating an environmental remediation fund. This contribution zooms in on each of these aspects, placing them in their broader context and appraising how the Tribunal navigated the often-uncharted territory it was faced with, particularly from the perspective of the multifarious legitimacy concerns that are frequently levelled at investor-state dispute settlement. Views differ as to whether the Tribunal in this dispute was overly activist or prudently dealt with the unique matters at stake. In a case about black gold, Perenco v Ecuador suggests arbitral tribunals may be willing and able to engage with shades of green.