Comments on: Response to Ted Folkman

By: Ted Folkman

Ted Folkman — Wed, 06 Jun 2012 13:42:57 +0000

One other point I wanted to make in response to Doug: I am not saying that I prefer a back-end solution and am really opposed to a front-end solution. The Whytock/Robertson approach has much to recommend it. Indeed, in the future I hope that judges are much more careful about the stipulations they require as a condition of an FNC dismissal, so that everyone will be clear about what the losing party in the foreign proceeding can and cannot claim when the case comes back to the US for recognition and enforcement. But until that happy day, what to do about pending cases that are already past the FNC stage? It seems to me that even if the Whytock/Robertson solution is sound going forward, we need to consider whether the ex post solution of estoppel is appropriate for cases that have already been dismissed on FNC grounds.

By: Doug Cassel

Doug Cassel — Mon, 04 Jun 2012 22:37:29 +0000

No rewriting of history is needed to answer Mr. Page, who seeks understandably to defend his clients’ ill-gotten Judgment. Much could be said to place the data he cites in context, but one overriding point suffices: In Ecuador, when President Correa is intensely interested in a case, all hope for judicial independence melts into fantasy. We saw that most recently in the El Universo case — where a judge has testified that the $42 million libel ruling against the newspaper was not written by the judge who supposedly entered it, but was instead slipped to that judge on a pen drive by the President’s lawyer. (In fairness, I should add that the President’s lawyer denies this, and has called for criminal action against the whistle-blowing judge!)

President Correa has likewise made clear, publicly and privately, his intense interest in the Chevron Judgment. And likewise, there is evidence that the judge who supposedly rendered that Judgment was not its entire author. For details, see my April 10, 2012 reply to Mr. Page’s earlier letter, entitled Defrauding Chevron in Ecuador: Doug Cassel’s Reply to Plaintiffs’ Legal Team, accessible at http://douglasscassel.com.

Correa’s flamboyant disregard of judicial independence is not unique in Latin America, but parallels the abuses of Chavez in Venezuela and Ortega in Nicaragua. Correa’s manhandling of the courts is, however, a continuation of the dramatic deterioration of the state of Ecuador’s judiciary a decade ago, when Chevron represented to US judges that Ecuadorian courts provided an adequate forum.

By: Aaron Marr Page

Aaron Marr Page — Mon, 04 Jun 2012 19:10:53 +0000

Cassel is desperately trying to rewrite history to help Chevron escape the consequences of its actions when it chose Ecuador as it preferred forum for the trial. In 2001, Chevron told the Second Circuit (in a brief signed by “ChevronTexaco, Inc.”) that “Ecuador provides an adequate legal forum” with comprehensive “guarantees [of] due process and equal protection” and “important procedural and substantive rights, and that its judicial system was “independent” and “strong” (for more high praise by Chevron of Ecuador’s judiciary, see http://chevrontoxico.com/assets/docs/affidavit-packet-part2.pdf). At that time, Ecuador ranked in the 14th percentile (raw score 2.3) of countries in Transparency International’s Corruption Perceptions Index. The U.S. federal district court and court of appeals agreed with Chevron that despite these indicators, Ecuador was more than capable of handling the lawsuit. Today, Ecuador has risen to the 34th percentile (raw score 2.7). Ecuador also remains, despite admitted problems in some areas, one of the highest scoring countries in Latin America for judicial independence in the Cingranelli-Richard (CIRI) Human Rights Dataset. The 2010 State Department Human Rights Report notes that, in particular, civilian courts that “handle lawsuits seeking damages for or cessation of human rights violations” are “generally considered independent and impartial.” See http://www.state.gov/documents/organization/160163.pdf. Indeed, the primary problem with such courts was that they were considered “time-consuming and difficult to prosecute, with judges taking up to a decade to rule on the merits”—a problem that Chevron intentionally exacerbated through constant procedural abuses and delays in the Aguinda trial. Last year, Professor Joseph Staats of the University of Minnesota concluded that Ecuador does in fact “provide impartial tribunals and procedures compatible with the requirements of due process of law.” See http://chevrontoxico.com/assets/docs/2011-staats-report.pdf. Ultimately, even the World Bank “rule of law” indicator cited by Cassel does not significantly disagree with this assessment, though it is worth noting that that indicator measures a variety of factors including a country’s problems with police conduct and the “likelihood of crime and violence,” issues with which Ecuador has struggled in recent years but which are not relevant to Chevron’s experience with the civil justice system.

By: Reply to Doug Cassel | Letters Blogatory

Reply to Doug Cassel | Letters Blogatory — Mon, 04 Jun 2012 15:36:46 +0000

[…] thanks to Doug Cassel for his comments on some of the views I’ve expressed in the symposium. I’d like to respond to his three […]