ICSID tribunal has cumulative jurisdiction over contract and treaty claims

In Duke Energy Electroquil Partners & Electroquil SA v Republic of Ecuador (ICSID Case No. ARB/04/19), the claimant referred to ICSID arbitration claims for both breach of contract (pursuant to an express arbitration agreement) and for breach of the US-Ecuador BIT. The tribunal accepted that it had jurisdiction both under the arbitration agreement and under the BIT and determined those claims which fell within either the arbitration agreement or the BIT.

The tribunal's award is an interesting example of a tribunal assuming "cumulative jurisdiction" pursuant to both an arbitration agreement and a BIT. The tribunal described the jurisdictional issue as complex, but ultimately accepted that there was no reason why a state party's consent to arbitration might not be expressed in both an arbitration agreement and a BIT. Fortunately, there was no conflict between the terms of the arbitration agreement and the BIT, and the tribunal did not therefore have to determine which took precedence.