MANHATTAN (CN) – The Ecuadorean government urged The Hague to let a group of its natives collect an $18.2 billion judgment from Chevron to clean up an oil spill they call the “Amazon’s Chernobyl.”
Since it was entered by a provincial court in Lago Agrio, Ecuador, on Feb. 14, 2011, Chevron has fought the judgment on three continents, claiming that the 18-year environmental litigation was an extortionate fraud.
Chevron immediately filed an appeal in Ecuador’s appellate court and aggressively pursued a lawsuit in the Southern District of New York alleging violations of federal anti-racketeering law.
Last week, Ecuador’s appellate court upheld the judgment in its full amount, and Chevron’s RICO case in New York hit a snag when a federal judge refused to issue an order of attachment against the Ecuadoreans.
After Chevron filed its RICO lawsuit, The Hague blocked the Ecuadoreans from enforcing the judgment. With the appellate court’s affirmation last week, Chevron asked the tribunal again in a Jan. 4 letter to continue the order.
Ecuador countered on Jan. 9 that granting Chevron’s request would bypass the separation of powers enshrined in its constitution.
“The republic has twice before explained that the claimants’ requested measures would compel Ecuadorian officials to violate Ecuadorian law,” the letter states. “On both occasions this tribunal has declined to require the republic to violate its own law.”
“In Ecuador the constitution is the supreme law of the land,” the letter states. “The actions of the republic’s institutions and officials are subject to the constitutional provisions mandating the separation of powers, protecting the independence of the judiciary, and limiting the power of institutions and officials to only those powers expressly granted by the constitution or law.
“The claimants’ most recent ‘wish list’ of requested ‘measures’ are no less violative of Ecuadorian law now than they were a year ago. Each measure would require circumventing established judicial procedure in direct violation of Article 168 of the constitution. Such violations would lead to administrative, civil and criminal liability for the entities or individuals who carried out the claimants’ demanded interference with the judiciary. And the claimants cite no provision or statute that grants to any office or official the power to do what they ask. Thus, the claimants demand that a representative of the Republic exceed his or her authority.”
Chevron spokesman Kent Robertson countered that The Hague’s directive trumps Ecuador’s constitutional concerns.
“The republic of Ecuador is bound by international law to comply with the [bilateral investment treaty] tribunal’s order,” Robertson said in a statement.
Though Chevron claims that Ecuador violated a Feb. 9 order of The Hague, which required the republic notify the tribunal before starting any collection actions, Ecuador denies wrongdoing.
“The republic has fully complied with the tribunal’s interim measures order by taking all measures at its disposal and notifying the tribunal of the steps taken,” the letter states.
Ecuador’s letter also expressed little patience with Chevron’s claim that it found “new evidence” allegedly proving “that the plaintiffs’ representatives drafted the Lago Agrio judgment.”
“The tribunal will recall that the thrust of the claimants’ case was that the plaintiffs’ representatives colluded with the environmental expert appointed by the Lago Agrio court, Mr. [Richard] Cabrera,” Ecuador wrote. “The claimants appear no longer to rely upon that allegation; no doubt because it was dealt with by [Ecuadorean provincial court] Judge Zambrano, who resolved to place no reliance on Mr. Cabrera’s report.”
Ecuador says the lower court judgment based its verdict on data gleaned from Chevron’s studies, and the appellate court rejected the fraud allegations on those grounds.
“In sum, Chevron’s request to vacate the judgment based on fraud and denial of due process was carefully examined and deemed unfounded by the court of appeals,” the letter states. “National judiciaries are entitled to deference and a presumption of correctness in international law, and the respondent respectfully requests that the tribunal give more weight to the reasoned conclusions of the Ecuadorian Court of Appeals than to the claimants’ exaggerated and unsubstantiated accusations.”
Robertson, the Chevron spokesman, said that the ghostwriting allegations are true, and that the appellate court ignored the Chevron’s evidence supporting them. He also denied that national judiciaries are owed any deference.
“As a branch of the Ecuadorean Republic, Ecuadorean courts must comply with the interim measures order directly,” Robertson said.
The Hague tribunal has not indicated how it will rule.