In Legal Brief, Government Urges Appeals Court to Dissolve Injunction over $18 Billion Chevron Judgment
Amazon Defense Coalition
20 June 2011 - FOR IMMEDIATE RELEASE
Contact: Karen Hinton at +1.703.798.3109
New York, NY – Ecuador's government has taken the extraordinary step of asking a U.S. appeals court to rein in New York judge Lewis A. Kaplan for his "belittlement" of their country's court system and for mocking the Ecuadorian indigenous and farmer communities who recently won an $18 billion judgment against Chevron, according to legal papers filed recently in New York.
In February of this year, the Ecuadorian private citizens – who are legally distinct from Ecuador's government – won the judgment in the environmental lawsuit titled Aguinda v. ChevronTexaco after an eight-year trial. The case was tried in Ecuador at Chevron's request; before the judgment was entered, Chevron sold its Ecuadorian assets, forcing the plaintiffs to consider enforcement of any judgment in other countries.
As part of its strategy to obstruct any enforcement action, Chevron in February filed a completely separate lawsuit in New York before the Ecuador trial concluded asking Kaplan to find that Ecuador's entire judicial system is broken. At Chevron's request and without an evidentiary hearing, Kaplan quickly issued an injunction purporting to block worldwide enforcement of any potential final judgment.
Kaplan's ruling, which appears to be an unprecedented attempt to extend American judicial power outside of the United States, is under an expedited appeal before the Second Circuit Court of Appeals in New York with argument set for September 12. Kaplan also ruled before an appellate panel in Ecuador was able to reach a decision on whether to affirm the judgment against Chevron.
The Republic of Ecuador is one of five entities to file amicus briefs with the Second Circuit asking that Kaplan's injunction be dissolved because it lacks legal authority. An amicus submission from 16 international legal scholars called the injunction "futile" and a violation of international law.
The Republic of Ecuador's amicus brief leveled a fusillade of criticism at Kaplan for what it called his "gratuitous belittlement" of Ecuador's legal system.
"The undisguised castigation of, and lack of respect afforded, the Ecuadorian justice system by the District Court runs counter ... to long-established jurisprudential norms," wrote lawyers for the government.
The Ecuador government wrote that its legal system is "predicated on fundamental principles of justice and due process" deeply rooted in the Ecuador Constitution, which like the U.S. Constitution guarantees the independence of the judiciary and provides for separation of powers.
Chevron and other foreign investors in Ecuador have taken full advantage of the independence of the country's courts, according to data cited by the government. In 2007 Chevron won a $1.5 million judgment against Ecuador's powerful state-owned oil company, Petroecuador, while in 2008 Chevron prevailed in Ecuador's appellate courts over a separate multi-million dollar claim.
Ecuador's government asserted that Chevron's complaints about Ecuador's courts are hypocritical given that the company repeatedly praised those very courts from 1993 to 2002 to convince a U.S. judge to shift the Aguinda lawsuit to the South American nation. The Ecuadorian plaintiffs originally filed the case in 1993 in New York – just miles from the company's global headquarters – and fought for years to have the trial there.
As late as 2006 – three years after the environmental trial in Chevron's preferred forum of Ecuador began – Chevron was still arguing that Ecuador's courts were fair and transparent as part of its strategy to dismiss a separate case from federal court in San Francisco stemming from the same environmental contamination, according to the brief.
Ecuador's amicus brief appears to mark the first time a Latin American government has asked a U.S. appeals court to reverse a U.S. trial judge for interfering in its court system, said Karen Hinton, the U.S. spokesperson for the private Ecuadorian citizens who won the judgment.
"This is an extraordinary situation where an American judge has expressed open contempt for the legal system of a U.S. ally and trading partner, has belittled citizens of that country who have fought courageously for justice, and has tried to assert jurisdiction over that country's courts in clear violation of international law," said Hinton.
The Republic of Ecuador's brief noted that Kaplan's comments contrast sharply with a recent decision by the Third Circuit Court of Appeals in Philadelphia cautioning U.S. judges against "disparaging" Ecuador's justice system just because it is organized differently than that of the United States.
The amicus brief filed by the legal scholars called Kaplan's injunction "breathtaking in its attempts to arrogate a world-wide and exclusive jurisdiction" to a U.S. court over a judgment obtained in a foreign legal system. It was signed by professors and practitioners from South Africa, Australia, Spain, Italy, Finland, and the United States.
In a separate action, the Ecuadorian plaintiffs recently asked the Second Circuit Court of Appeals via a Writ of Mandamus to recuse Kaplan because of his "deep-seated antagonism" toward their lawsuit.
Kaplan has consistently mocked the Ecuadorian plaintiffs and their government from the bench and in his decisions. He called the lawsuit against Chevron a "game" that was "dreamed up" by American lawyers to help solve the "balance of payments" deficit of the United States. Kaplan also questioned the very existence of the private Ecuadorian plaintiffs, using the modifier "so-called" when writing about them in his decisions.
Kaplan labeled the government of Ecuador as "socialist" even though its U.S.-educated President, Rafael Correa, is a devoted market economist. President Obama called Correa in 2010 to offer congratulations after his latest electoral victory.
The Ecuador trial court found that Chevron deliberately dumped billions of gallons of toxic waste into the Amazon, decimating indigenous group and causing increased rates of cancer and other oil-related diseases. An area the size of Rhode Island is poisoned and the magnitude of the damage far surpasses that caused by the BP Gulf spill, according to the plaintiffs.
Chevron operated in Ecuador from 1964 to 1992.