If believing in the value of an independent judiciary is a subjective view, then, yes, my views are “subjective.” But, unlike Correa’s Transitional Judicial Council, I am not empowered to deploy my subjective views in an “arbitrary” and “unchecked” manner (as the Garzon panel concluded) to stack a nation’s highest court.

As for a “conspiracy theory” about Judge Andino’s assignment to the Chevron case, that was only one example of cases of high interest to Correa that were assigned to judges who made it onto the National Court only because of “scores” awarded in their interviews. In the view of the Vice Dean of San Francisco law school in Ecuador, these are indeed “suspicious coincidences.” But perhaps you consider the Dean to be one of those “terrible lawyers” in Ecuador whose views you deem ill-informed.

Dear Doug,

Your subjective arguments to attack Mr. Correa, Mr. Andino, the Ecuadorian Judiciary and its independence, success and progress, is hundred fold more subjective and biased than the criteria used by the TJC panel when graded the oral test of Mr. Andino. (Oral test was 10% of the total points). However, who could imagine—I am sure you already have a conspiracy theory about it—that he would be randomly drawn among the 21 judges of the Court to hear any case. Especially this one that you so passionately advocate, without knowing the Ecuadorian laws, nor the legal system of Ecuador.

Lastly, when you understand that Ecuador is not a supermarket and that Mr. Correa is not the owner of it … maybe you will gain a little more authority to give an opinion about the real facts. By the way,if you forgot, in 2006 it was Chevron who argued forum non conviniens in a court of California (maybe all the good contacts and powerful Ecuadorian friends disappeared after that) … when all the process of Judiciary reform, that you reproach, had already started. I would conclude that you just have a bunch of terrible lawyers and advocates in Ecuador!

I should add that where the enforcement statute specifies a system criterion, rather than one applying solely to the judgment, my answer would be similar. That is, I would look at the system at the moment of the judgment. The past would be relevant, but not determinative, as to whether the system meets the statutory criteria.

Dear Ted,

I think it’s a good question and a fair concern. My answer is that the enforceability of a foreign judgment should be assessed according to the statutory criteria—fraud, due process, independence of the judiciary, etc., as laid out in the applicable statute in a given enforcement jurisdiction—with respect to the particular judgment. If there was a prior, unconstitutional rupture that led to a new system, I would still apply the statutory criteria as of the time of the judgment in question and with respect to that judgment. I would not automatically decline to enforce the judgment because of a prior rupture with the Constitution. On the other hand, it might well be that the prior history would be relevant to assessing that judgment at the moment it was entered. For example, if the judges can reasonably infer from history that crossing the government in cases of importance will result in their being dismissed—as high court judges in countries like Ecuador, Venezuela and Zimbabwe might reasonably infer in 2013—that would be a factor in assessing whether they meet the tests of independence and impartiality at the time they render the judgment in question. In part, that is because, under international law, what matters is not only whether the judges are in fact independent and impartial, but also whether they appear to be independent and impartial to reasonable observers.

So Iowa can breathe easy; Ecuador should not.

I hope that answers your question. If I missed the thrust of it, please let me know.

Doug, I’m not saying the Iowa situation is equivalent to the Ecuador situation. I was just doing a little Socratic bit to try to get at what’s behind your view. You are emphasizing the legality or regularity of the procedure in Iowa as opposed to the irregularity of the procedure in Ecuador as grounds for saying that the Iowa recall shouldn’t make us call the independence of the Iowa judiciary into question while the Ecuador judicial changes should make us call the independence of the Ecuadoran judiciary into question. Let me put another hypothetical to you to try to see where you end up. Take an imaginary left-wing, socialist but democratic Latin American state that had lifetime judicial appointments and whose courts, pursuant to domestic law, had approved lots of expropriations of property, upheld large libel verdicts against writers who criticized the president, etc. The people of the country decide enough is enough and have a peaceful revolution that leads to a centrist, free-market government. They kick out all officials of the old regime, including the judges, and have a constitutional convention that results, among other things, in the reorganization of the courts. They decide that judges should be appointed for ten-year terms from a list of technocrats approved by the bar association, but after a few years (before the judges’ terms are up) they decide that’s a bad system and replace those judges with judges appointed by the president with the advice and consent of the upper house of the legislature. How would you think about this situation? Someone might say that the courts in this situation were getting better and better, but on your view, it seems the situation would be getting worse and worse!

I hope you don’t mind me asking you about hypotheticals and comparisons with situations like Iowa—I’m just trying to get at your view and whether it addresses one of my main concerns here, namely the concern that you’re thinking about the rule of law in such a way as to make all significant constitutional changes or revolutions problematic from the perspective of recognition and enforcement of judgments. Is this a fair concern, do you think?

Dear Gustavo,

With respect, if there is confusion about the difference between the temporary Transitional Judicial Council (TJC) and the Council of the Judiciary (CJ), it is yours, not mine. Correa established the temporary TJC precisely because he was displeased with the work of the CJ. He set up the TJC to do a job — reshape the judiciary to his liking — before allowing the CJ to resume functioning.

Yes, the creation of the TJC was approved in a referendum by the voters. You might have added that President Correa has won elections and enjoys one of the highest voter approval ratings in public opinion polls in Latin America. But electoral democracy does not guarantee either the rule of law or the independence of the judiciary. History has shown repeatedly that popularly elected leaders, unchecked by independent judges who enforce the rule of law, sooner or later descend into excesses.

I do not suggest that Ecuadorians lack courage or character. I know personally Ecuadorians who have shown both courage and character in standing up to threats and legal intimidation by President Correa and his lawyers. What I do suggest is that no judge — of any nationality — should be asked to function in a system as lacking in security of tenure and legitimacy of appointment as the Ecuadorian judiciary of recent years.

Finally, you accuse “Texaco (Chevron)” of environmental outrages. As you know, Chevron has never drilled a drop of oil in Ecuador. It inherited Texaco’s legacy. Texaco did a clean-up of its agreed portion of the former joint enterprise with Petroecuador in the late 1990’s. Since then, the plaintiffs’ own environmental experts have admitted that they could not find no pollution outside the pads and the platforms, i.e., no generalized environmental contamination.

If the plaintiffs’ own experts are wrong about that, let there be another procedure (whether a trial, an arbitration, or a mediation), with new experts. But this time, let the procedure be a fair one. By committing fraud in the Lago Agrio trial, plaintiffs’ lawyers have only delayed the day when any residents of the area who may have legitimate claims can be heard in a credible proceeding.

(And no, I do not follow anyone (not even Ted) on twitter. Call me old-fashioned (or just old).)