Chevron has filed a motion for partial summary judgment in the RICO case against the Lago Agrio plaintiffs and their lawyers. In a nutshell, the claim in the case was that the defendants took part in the supposed corruption in Ecuador that led to Ecuador’s judgment against Chevron. Those of the defendants who appeared in the case have asserted claim and issue preclusion as defenses to Chevron’s claim, because the Ecuadoran courts have already rejected Chevron’s arguments about corruption.
Why bring this motion now? It seems to me that Chevron is taking another crack at a preemptive attack on the Ecuadoran judgment. In Naranjo, the Second Circuit held that a judgment debtor cannot preemptively seek a declaration that a judgment is not entitled to recognition or enforcement under the New York recognition and enforcement statute. Chevron seems to have gotten around the holding by raising its arguments in an action in which the Lago Agrio plaintiffs actually have sought recognition of the Ecuadoran judgment, though not enforcement. And as a bonus, Chevron gets to raise its argument before Judge Kaplan! Chevron’s brief gives a pretty good summary of its allegations of corruption in the Ecuadoran proceedings.
There were also a few other developments in the Lago Agrio case over the last few days:
- The Inter-American Commission on Human Rights requested more information from the Lago Agrio plaintiffs about the effects of the pollution they say Chevron caused on the plaintiffs’ health. The plaintiffs’ response withdrew its request for protective measures (without prejudice) on the grounds that the Ecuadoran courts have made it clear that they will not give effect to an award of the BIT arbitral tribunal affecting the validity of the Ecuadoran judgment. So for the time being, the OAS proceedings are in abeyance.
- The Ecuadoran appellate court issued a new decision rejecting Chevron’s request to revoke its earlier decision and reinforced its view that the BIT tribunal’s award will be unenforceable in Ecuador to the extent it would be contrary to Ecuador’s international human rights obligations. I do not believe a translation of the new decision is available as yet.