Scholars Ask Appellate Court to Dissolve Order of Judge Lewis A. Kaplan
Amazon Defense Coalition
13 June 2011 - FOR IMMEDIATE RELEASE
Contact: Karen Hinton at +1.703.798.3109
New York, NY – A group of 16 international law scholars have asked a federal appeals court in New York to overturn what they say is a U.S. trial court's "futile" and unlawful injunction that purports to prohibit foreign citizens from Ecuador from collecting an $18 billion judgment against Chevron in courts around the world.
The scholars described the injunction, issued by Judge Lewis A. Kaplan, as a "futile act" that "is much more likely to antagonize the courts of other states" than be treated as persuasive authority, as Kaplan has claimed. They also described the injunction as "breathtaking in its attempts to arrogate a world-wide and exclusive jurisdiction in this case" to a U.S. court without any legal authority to back it up.
The scholars filed an amicus brief with the Second Circuit Court of Appeals asserting that Kaplan's injunction "constitutes an internationally unlawful attempt to intervene in the domestic legal affairs of Ecuador." The scholars asked the Second Circuit – which is expediting an appeal of Kaplan's order – to dissolve the injunction.
"The preliminary injunction directly intrudes into the external administration of Ecuadorian justice because recognition and enforcement of Ecuadorian judgments are issues each state is permitted to decide freely," argued the law scholars, who are led by Donald K. Anton of the Australian National University College of Law in Canberra.
Those signing include public international scholars from South Africa, Spain, Finland, Italy and the United States. All made it clear they were not taking a position on the merits of underlying case.
The law scholars wrote that Kaplan's injunction violates international law, interferes in the foreign relations of the U.S., would potentially expose the U.S. to legal claims from Ecuador, and would be impossible to enforce.
The scholars also argued that neither Kaplan nor Chevron "has cited any statute, rule, case or treaty" that would authorize the injunction.
Besides Anton of the Australian National University College of Law, the brief was signed by Professor Werner Scholtz of South Africa; Professor Belen Olmos Giupponi of Spain; Professor Timo Koivurova of Finland; Professor Laura Westra of the University of Milan; and several U.S. scholars, including Professor James D. Wilets, Chair of the Inter-American Center for Human Rights at Nova Southeastern University in Ft. Lauderdale.
The Ecuadorians, members of 80 indigenous and farmer communities, recently won the judgment after an eight-year trial in Ecuador. They originally filed the case in U.S. federal court in 1993, but in 2002 a judge granted Chevron's request to shift the case to Ecuador after the oil giant praised that country's courts as fair and transparent.
The Ecuador trial court in February found Chevron liable for dumping billions of gallons of toxic waste into the waterways of the Amazon, poisoning an area the size of Rhode Island and decimating indigenous groups with oil-related diseases such as cancer. The company operated in Ecuador from 1964 to 1992.
Chevron began to attack Ecuador's courts in 2004 after the scientific evidence in the trial pointed to its culpability. As a judgment in Ecuador was imminent, Chevron convinced Kaplan to issue the injunction without conducting an evidentiary hearing and after rejecting attempts by the Ecuadorians and their counsel to submit evidence.
While presiding over the case, Kaplan seemed to mock the Ecuadorian indigenous groups in his comments from the bench. He speculated that the lawsuit was part of a "game" brought about by "the imagination of American lawyers" trying to solve the balance of payments deficit of the U.S.
Kaplan also seemed to question the existence of the plaintiffs by using the modifier "so-called" when writing about them in his decisions. The Ecuadorians have requested that the appellate court order Kaplan off the case because of his "deep-seated antagonism" toward their lawsuit.
The Ecuadorians have rejected Kaplan's jurisdiction and say they will seek lawful enforcement of their judgment in countries where Chevron has assets, said Karen Hinton, the spokesperson for the Ecuadorian plaintiffs.
A three-judge panel in New York is expected to hear argument on Kaplan's injunction in late July or early August. An Ecuador appellate panel is also reviewing the Ecuador trial judge's decision, which was challenged by both parties.
The international law scholars submitted one of five amicus briefs asking the appellate court to dissolve Kaplan's injunction. Others were submitted by the government of Ecuador; Professor Bert Neuborne of New York University School of Law; Earth Rights International; and the Environmental Defender Law Center.