Exxon-Venezuela arbitration dispute: next steps and impact on future investor-state disputes under ICSID

Abstract

The ongoing arbitration dispute between ExxonMobil and Venezuela over the expropriation of the Orinoco oil fields has received a great deal of attention due to the large financial stakes and the aggressive stand taken by Exxon. Exxon won a significant victory in this process in 2010 when the International Centre for the Settlement of Investment Disputes accepted jurisdiction over the dispute, which placed Exxon in an excellent position to receive a favourable judgment given its strong argument on the merits. However, Exxon’s likely victory before the ICSID Tribunal does not guarantee ultimate success in bringing Venezuela fully to account. This article examines the uncertainty that recent ISCID annulment panel decisions have injected into the process and the further difficulties which Exxon may face in seeking to satisfy an award. With determined opposition from Hugo Chavez’s Venezuela, I find that Exxon still has a difficult road ahead despite its clear claim for compensation, and that this difficulty has consequences for the ICSID process as well as for the general environment for international oil and gas investments. In the 1990s, the government of Venezuela, in a process which became known as the Apertura (‘opening’), opened up the country’s oil fields to foreign investment. This process was undertaken in an attempt to increase production and to gain access to advanced foreign technology. Since the nationalization of the country’s oil industry, the state oil company Petroleos de Venezuela (PDVSA) had slowly fallen behind technological developments in the industry as foreign firms were unwilling to invest in a country with a repeated history of nationalizations. Due to this history, the terms which Venezuela offered during the Apertura were generous. The Association Agreement (AA) undertaken by Exxon was one of four major projects to develop the extra-heavy oil fields in the Orinoco belt. 1 Such contracts were larger in scope and technical difficulty, requiring initial investments from the foreign oil companies of several billion