Letters Blogatory

The Blog of International Judicial Assistance
By Ted Folkman

Lago Agrio: Doug Cassel on the New Ecuadoran Judgment

Here is Letters Blogatory contributor and Chevron advocate Doug Cassel on the recent Ecudaoran judgment. I comment below the post.

To update the late Senator Everett Dirksen of Illinois, “$9 billion here, $9 billion there—pretty soon you’re talking real money.” In manipulating their $19 billion Lago Agrio judgment against Chevron (reduced last week to a mere $9.5 billion), Ecuadorian courts have proved to be no more serious than Dirksen’s quip.

Their latest performance is the November 12 ruling by a three-judge panel of the National Court of Justice (formerly the Supreme Court) slicing the judgment against Chevron in half. In a 222-page opinion, the National Judges declined even to consider extensive evidence that the plaintiffs’ lawyers and trial court judges colluded, through fraud, bribery and assorted chicanery, to stick Chevron with a $9.5 billion tab for environmental clean-up. On the other hand, the National Judges threw out the lower courts’ doubling of the award, through punitive damages unauthorized by Ecuadoran law, which were to have been paid only if Chevron declined to make a public apology. (Chevron declined the invitation).

Cassation

Two aspects of context should be borne in mind in evaluating the new ruling. First, the National Judges sat, not as a court of appeal, but as a court of cassation. Their competence was thus limited to issues of law, not fact—such as the evidence of fraud. Further, their cassation review was technically only of the 2012 affirmance by an appellate court, and not of the original, fraud-infected judgment of the trial court. So the trial court’s bogus judgment against Chevron was doubly insulated from real scrutiny by the National Court. In contrast, the conditional award of punitive damages—a clear error of law by the trial court, affirmed by the appellate court in 2012—was struck down unanimously by the National Court.

The Judges

One may reasonably question the independence and impartiality of the National Court panel. Like all 21 current National Court judges, they are brand new. They were named to the Court only in 2012 by a three-member “Transitional Judicial Council.” The Council was composed entirely of loyalists of Ecuadorian President Rafael Correa—who had previously praised the judgment against Chevron as the most important in the nation’s history. The Council was chaired, not by a lawyer, but by an engineer formerly on Correa’s payroll.

According to a prominent Ecuadorian law professor, quoted by former Ecuadorian Justice Minister Vladimiro Álvarez Grau in testimony for Chevron in the pending New York RICO trial against some of the plaintiffs’ lawyers, the “single objective” of the Transitional Judicial Council was “to capture the Judiciary on the Executive Branch’s behalf.” By January 2013, the mission was accomplished: “Now the whole Judiciary is captured. [ellipsis] [J]udges have been removed nationally, only to be replaced by judges belonging to Alianza País.” (Álvarez Grau testimony, ¶ 108 and n. 192.) (Alianza País—Alliance for the Country—is Correa’s party.)

In a post, Ted Folkman notes that, because Álvarez Grau is a political opponent of Correa, the objectivity of his assessment is open to doubt. Fair enough. But the same cannot be said of former Spanish Judge Baltasar Garzón. Precisely because he was viewed as an ideological sympathizer with Correa, Garzón was invited by Correa to join an International Oversight committee to evaluate the work of the Transitional Judicial Council. In a 102-page report issued in December of 2012, Garzón and his fellow overseers from Argentina, Brazil, Chile, Guatemala and Mexico, unanimously concluded that the highly subjective criteria used by the Transitional Judicial Council in interviewing candidates for the National Court could result in “arbitrary” and “unchecked” (“sin ningún tipo de control”) selections, thereby elevating to the National Court certain candidates in place of others who otherwise scored higher in the selection process. (Informe Final de la Veeduría Internacional a la Reforma de la Justicia en Ecuador, p. 58). They recommended that the National Court review the “genuineness” of its own selection process and hear objections from candidates who were excluded. (Id. at 99.)

The Garzón committee cited several examples of questionably seated National Court judges. One was the very judge who recently authored the National Court ruling on Chevron. Before his final interview with the Transitional Judicial Council, Judge Wilson Andino Reinoso had scored only in 33rd place, well out of the running for the 21 seats on the National Court. He had failed, as required, to submit for review any samples of pleadings or judgments he had written as a lawyer or judge. But in the interview—in which he touched on such favored Correa themes as the Incan Goddess Pacha Mama, and the right to water—Judge Andino was deemed a star. The Transitional Judicial Council awarded him enough points to vault past 15 candidates who otherwise outscored him. Even so, he barely limped onto the Court, finishing 18th among 21 winners.

The Garzón panel did not mention another aspect of Judge Andino’s qualifications—his brother is Mauro Andino, a Correa heavyweight in Ecuador’s National Assembly.

How did the Chevron case happen to be assigned to Judge Andino? We may never know. But the respected Vice Dean of the San Francisco University law school in Quito, Farith Simon, notes that this case assignment is one in a series of “suspicious coincidences,” in which judges who made it onto the National Court only because of favorable interview scores ended up being assigned to the cases of greatest interest to President Correa.

Punitive Damages

When I read the original $18 billion judgment entered against Chevron in 2011, one telltale sign of its illegitimacy was that it included $9 billion in punitive damages. From my work over the years on reparations for victims of human rights violations in Latin America, I knew of no legal authority for punitive damages in Ecuador, and no prior award of punitive damages in Ecuador.

One measure of the lack of integrity (or competence) of the 2012 ruling of the Ecuadorian appeals court against Chevron was its affirmance of this illegal award. The appeals court also affirmed the order making the punitive damages conditional—to be paid only if Chevron refused to apologize. That order, too, is unheard of in Latin America and unauthorized by Ecuadorian law.

The National Court panel has now unanimously agreed. Neither punitive damages, nor conditioning their cancellation on a public apology, are authorized by Ecuadorian law. Moreover—or so the panel thought—these remedies were in any event unauthorized, because the plaintiffs had not requested them. (In fact, evidence in the New York RICO trial suggests that plaintiffs not only requested, but granted themselves these remedies, by secretly drafting the judgment, which the trial court judge then signed as if it were his own. We shall see how the federal court in New York rules on this evidence.)

Fraud

The National Court declined to consider the evidence of fraud. As a court of cassation, it could address only issues of law, not fact.

While that sounds plausible, the National Court rulings on mixed issues of law and fact turned on unsupported and erroneous assertions of fact. Article 76.7 of Ecuador’s Constitution guarantees the right of defense, including conditions of equality between the parties, access by both parties to all documents in the case, the right to reply to the arguments of the other party, the right to challenge or present rebuttal evidence to evidence presented by the other party, the obligation of expert witnesses to appear before the judge and to be interrogated, and, above all, the right to be heard by independent and impartial judges. If the evidence presented by Chevron had been considered and accepted, the conclusion would follow that these rights were systematically and flagrantly violated.

Granted, the National Court might arguably have abstained from finding a violation of the right to defense, on the ground that in cassation it could not consider issues of fact (such as whether the judge was bribed by the plaintiffs). But the Court instead made affirmative findings. Chevron, it ruled (p. 75 of the Spanish original, my translation) “has had access to justice, that is to say it has had effective protection of its rights and interests, without there being any obstacle to its exercise of the right to defense, and it has as well obtained a judicial decision in conditions of equality [ellipsis]” Yet the evidence in the New York trial makes these assertions laughable.

The National Court opinion bristles with defensive nationalist rhetoric. The judges lament, for example (p. 91, my translation), that Chevron “alleges the existence of procedural fraud, a very serious accusation made against the administration of justice, casting shadows of suspicion over the adjudicative function of Ecuadorian jurisdictional organs [ellipsis]” In reply, they assure us (p. 102), “The Ecuadorian State is a constitutional State of rights and justice, social and democratic, which guarantees a high level of protection of rights, as well as mechanisms to make effective every right consecrated in the Constitution [ellipsis]” President Correa would be proud.

The judges also contend (p. 96) that Chevron has had “decades of time” to pursue its allegations of fraud. In fact, most evidence of fraud became clear only after the trial court judgment in 2011, and even more, only after the appeals court affirmance in early January 2012. The blockbuster revelations of the last two years are thus subject to review only by cassation. And, as the National Judges repeatedly stress throughout their opinion, in cassation they cannot consider issues of fact.

The Judges (pp. 101-02) go on to lecture Chevron for not bringing its complaints of fraud to Ecuadorian prosecutors. Even if realistic, criminal complaints would afford Chevron no relief from paying the multi-billion dollar judgment. But in fact, any prosecutor who dared to cross Correa by calling into question the integrity of what the boss calls the most important judgment in the nation’s history, had better look for a different line of work. Even so, although the Judges either did not know or did not mention the fact, Chevron did send complaints to Ecuador’s national prosecutor. Unsurprisingly, they went nowhere.

I am not certain whether there is any further legal recourse theoretically available to Chevron in Ecuador. If there is none, then Ecuador is in violation of international human rights treaties requiring effective remedies—not cassation alone—for fraudulent judgments. But even if there is a theoretical Ecuadorian remedy before the Constitutional Court (another Correa fiefdom) or otherwise, there is no reason to expect that Chevron could get a fair shake in Correa country.

Petroecuador

Petroecuador is Ecuador’s State oil company. Although Chevron has never operated in Ecuador, Texaco—for whose pollution the Ecuadorian courts now seek to hold Chevron liable—ceased drilling in Lago Agrio over 20 years ago. Only Petroecuador has continued operation in Lago Agrio since then. Chevron argued before the Ecuadorian courts that any resulting environmental damage is the responsibility of Petroecuador, not Chevron. As the National Court opinion notes (p. 116), Petroecuador publicly admitted to 175 oil spills during the period from 2005 to 2008 alone.

Petroecuador, then, is an indispensable party to any fair resolution of the questions of who spilled what and when, and who should pay for any clean-up. Yet the National Court dismissed arguments that Chevron could not be saddled with responsibility for Petroecuador’s spills. The Court observed that the plaintiffs had sued only Chevron. Adjudicating Petroecuador’s responsibility in a case to which it was not party, said the Court, would violate Petroecuador’s rights to defense and due process.

The Court fortified this position by finding no need to prove that Chevron (or Texaco) caused any environmental harm. Strict liability applies to polluters in Ecuador, the Court ruled; hence no proof of causation of harm is needed. Whatever sense this might make in a single-polluter case, it is hardly sensible where a multinational company is ordered to pay for pollution most likely caused by a State enterprise.

The law, of course, is capable of reasonably resolving multi-party issues of pollution and causation. Such questions arise regularly in countries everywhere. Whatever the correct legal solution may be under Ecuadorian procedure, it cannot reasonably be to hold Chevron liable for Petroecuador’s spills.

But no matter: In what passes for high-stakes justice in Ecuador, the National Court could not even hint at liability for Petroecuador. The State oil company is Correa’s leading source of revenue. The judges know that they can be removed from the National Court as easily as they were installed.

Texaco’s Release

In 1995 Texaco and Ecuador agreed that, in return for Texaco’s clean-up of its agreed share of pollution resulting from its prior joint venture with the Ecuadorian State oil company, Ecuador would release Texaco from liability for diffuse or collective damage to the environment. The International Arbitration Tribunal hearing Chevron’s claims against Ecuador recently ruled that, while the release does not preclude claims by third parties for individual harm, it does bar third party claims for diffuse harm, because at the time of the 1995 agreement, only the Ecuadorian State could assert diffuse claims, and hence it had power to give a full release. (First Partial Award on Track I, 17 September 2013, par. 108.)

The National Court reached an opposite conclusion. I have never taken a position on the right answer to this complicated question. It is noteworthy, however, that the Ecuadorian judges neither mentioned the arbitral award, nor squarely confronted its reasoning—although they must have been aware of both.

Conclusion

Neither the lengthy opinion of the National Court, nor the manner of selection of its judges, and in particular of the judge who authored its opinion in the case against Chevron, should commend themselves to outside observers. If there is to be a fair and reasonable judgment in the Lago Agrio case, it will have to come from adjudicators in some forum not beholden to Rafael Correa.

Doug Cassel
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21 responses to “Lago Agrio: Doug Cassel on the New Ecuadoran Judgment”

  1. Ted Folkman

    Thanks, Doug, for the comments on the judgment. I’d like to address a few of your points in no particular order.

    Petroecuador. I think your basic point is that Ecuador has found Chevron strictly liable for all of the environmental damage, including the environmental damage caused by Petroecuador rather than by Texaco (let’s assume for present purposes that Chevron is liable if Texaco would have been liable). “Whatever the correct legal solution may be under Ecuadorian procedure, it cannot reasonably be to hold Chevron liable for Petroecuador’s spills.” Really? I don’t know anything about Ecuadoran environmental law, but isn’t it the law in the United States that a potentially responsible party under CERCLA is often held to be jointly and severally liable for all of the cleanup costs, with apportionment of liability a matter for the PRPs to sort out through claims for contribution? I could be wrong—I’m not an environmental law expert—but it strikes me that what you are describing as a gross miscarriage of justice is, more or less, how we do environmental law in the United States. See generally Michael Foy, Apportioning Cleanup Costs in the New Era of Joint and Several CERCLA Liability, 51 Santa Clara L. Rev. 625 (2011). Environmental lawyers, please feel free to correct this as appropriate.

    Cassation. Your point is that the National Court of Justice is a court of cassation and thus did not review the facts, in particular the facts that Chevron says show that the underlying judgment was the product of fraud. I don’t think you’re saying that the court should have considered factual matters. Again, I want to compare this to how the matter would have proceeded in the United States in similar circumstances, where we have courts of appeal that do have the power to review findings of fact. Tell me if this is wrong, but I take it that most of the really juicy evidence Chevron has produced in the last year or so was not in the Ecuadoran trial court’s record. So even in the US, we couldn’t expect a court of appeals to consider the new evidence of fraud on appeal. Instead, the party complaining of fraud would likely file a motion for relief from the judgment under FRCP 60, and the case would get to the court of appeals only after the trial court made a decision on the motion. This is why I’ve previously asked whether Chevron had a remedy in Ecuador analogous to a Rule 60 motion. My sense is that neither you nor I knows the answer to that question, but I think it’s an important question, because if there was no mechanism for Chevron to raise its factual allegations of fraud after the judgment, then you’ve got a good point, but if there was a mechanism and Chevron didn’t use it, then maybe not. My recollection is that the first Ecuadoran appellate decision did not consider the claims of fraud, either, though I don’t know whether that was for procedural reasons, and if so what they were.

    Judicial Selection. You argue that Correa has packed the court with his unqualified cronies, so it’s no wonder the court affirmed much of the judgment given its importance to Correa. I could give a flip reply in two words: “Harriet Miers.” But of course Miers was not confirmed. Still, I think that this criticism of foreign judiciaries is dicey when we consider the importance Republican senators here at home have attached to making sure that they never again confirm another Justice Souter, by which they mean a Supreme Court justice who might not be a perfectly reliable vote on issues that are important to the GOP. In short, I don’t think it wise to apply a test abroad that I can conceive the US courts of failing (to be clear, I don’t think our federal courts have failed a test like this). I note, too, that there does not seem to be any evidence of monkey business in the assignment of cases, only suspicions.

    These kinds of considerations make me question whether the case against Ecuador’s National Court of Justice is a strong as the first paragraphs of your post suggest. But then, as you know, my basic perspective on all of this is to condemn the Donziger/Correa shenanigans but to sound a serious note of caution about the distinct claims Chevron has sought to make about the Ecuadoran judiciary itself in light of comity and other concerns.

    Reply
    1. Doug Cassel

      Thanks for these as always constructive comments, Ted. In reverse order, here are my replies:

      1. The situation of US Supreme Court Justices bears no meaningful resemblance to that of Ecuadorian National Court Justices. The difference is far more than the fact that a Harriet Miers did not make it onto our Supreme Court, whereas Wilson Andino – who did not so much as present his prior briefs or judgments for review (as he was required to do) – is now an Ecuadorian National Court Judge. More broadly, the issue is not merely the impact of politics in the selection process, or even whether unqualified candidates can reach the high court (as in Ecuador) or not (as in the US in recent decades).

      The more important differences are (1) intimidation and lack of security of Ecuadorian judges in their positions, and (2) interference by the Ecuadorian executive in judicial decisions of interest to the executive. The same Transitional Judicial Council, composed exclusively of Correa loyalists, that selected the entire current Ecuadorian National Court all at once, also removed or suspended over 500 judges from the bench — during an 18-month period, in a relatively small country (population 15 million). (Proportionally in the US, that would amount to the removal of over 10,000 judges.)

      Some removals were no doubt justified – e.g., the removal for apparent drug-related corruption of Judge Zambrano, the judge who put his name on the trial court judgment against Chevron. But others (as the Garzón report makes clear) were based on the same sort of politics denounced by Judge Garzón’s international oversight panel in the selection of Wilson Andino. Judge Andino is well aware, then, that pretexts to remove him from the bench – if he were to stray from the reservation — can easily be invented and carried out. Easy come, easy go.

      In contrast, political removals of US Supreme Court Justices are difficult to imagine – let alone the en masse removals that have decapitated Ecuador’s high courts several times in the last decade (most recently in 2012).

      Nor can we imagine President Obama telephoning a Supreme Court Justice to secure an affirmative vote. I don’t know whether President Correa or his lawyer told Judge Andino how to decide the Chevron case. But the plaintiffs’ internal emails report that, when they met with Correa in 2007, he offered to help them by calling the judge. Former Judge Monica Encalada has testified that Correa’s multi-million libel judgment against the El Universo newspaper was handed to her successor on a pen drive from the computer of Correa’s lawyer (after she resigned from the case rather than play along). There have been many reports over the years of executive interference in cases of interest to Correa.

      So what the Russians used to call “telephone justice” can and does happen in Ecuador. And whether or not Correa’s lawyer in fact phoned them (I don’t know), Judge Andino and his two colleagues had every reason to believe that to rule for Chevron would have brought their judicial careers to an abrupt end.

      2. On post-judgment evidence of procedural fraud, I found nothing in Ecuador’s lengthy Code of Civil Procedure on the subject; nor was it mentioned in the National Court opinion’s lengthy discussion of the grounds for annulling a judgment. But even if reopening a case on the basis of post-judgment evidence of procedural fraud were allowed by Ecuadorian jurisprudence, or by some other legislation, the chances that Ecuadorian courts would deprive President Correa of his most important judgment in history are nil.

      3. Joint and several liability often makes sense. For example, if two tortfeasors commit an environmental tort and one then goes bankrupt, the sole remaining solvent tortfeasor may appropriately be held liable for their joint sins. But no joint and several liability was declared here – only the liability of Chevron, for at least two reasons. First, the plaintiffs committed in writing not to sue the State oil company, in return for the State’s support of their suit in New York. Plaintiffs’ deal is not a legitimate reason to stick Chevron with liability for Petroecuador’s pollution. Second, as plaintiffs’ lawyers themselves expressly recognized, no suit against the State oil company in Ecuador for alleged massive oil pollution would have had a chance of prevailing. I agree. As I said in my post, Petroecuador is Correa’s single largest source of revenue. He is not about to allow his courts (which, as noted above, lack real independence) to stick him with the tab for an alleged multi-billion dollar clean-up, especially when he thinks he can stick it to Chevron instead.

      Reply
      1. Gustavo

        I would like to make some comments to Mr. Cassel’s contribution. However for now I will only refer to his opinions about “The Judges.”

        False. Not only biased, but an absolute misinterpretation of the actual facts.

        Following years of political turmoil democratic instability and political interference in the selection of the Supreme Court and lower court judges, the Ecuadorean citizens decided, in a National Referendum in 2011, with a significant majority, to change the political intrusion in the Ecuadorean courts forever.

        In late 2004, the Ecuadorean Supreme Court was destituted by an unlawful political agreement between the Executive and Legislative powers. Just a few days ago, The Inter-American Court of Human Rights ruled against the Republic of Ecuador condemning this political abuse on the Ecuadorean judicial system. However, as suspicious as it sounds, Chevron in 2006, filed a petition to a California court arguing, for the second time in an American court, forum non-conveniens and claiming that Ecuadorean courts are the best forums to solve the Lago Agrio case. Chevron promised in several legal documents that it will respect and accept the Ecuadorean courts’ resolutions. Obviously, Ecuadorean lawyers that represented Chevron told their American bosses they had all the necessary people under control. It was a matter of budget, good relations, and lobbying the right guys… but something went wrong for Chevron!

        Coming back to the issue of judge selection, after the referendum in 2011, Ecuador became in one of the few countries in the continent where no political appointments and congressional approval is required for the selection of the judges. Instead, a rigorous selection procedure takes place, based on merits and other requirements that includes a public scrutiny of the candidates. This means that any Ecuadorean citizen can file their reasoned arguments to dismiss the suitability of any candidate. As i said “any Ecuadorean citizen”. Thus, the truth is that the three members of the Council of the Judiciary only handed the designation certificates to the new judges. They did not elect them and the process was highly approved and applauded by the international community.

        When Mr. Cassel says that the “Council was chaired, not by a lawyer, but by an engineer formerly on Correa’s payroll”, there could only be two reasons for the professor to attempt to degrade the profession of the President of the Council of the Judiciary -the real name of the council. First, by his total misinformation or ignorance about the functions of the Council, or in the absence of its knowledge, he is trying to confuse the readers; who do not know that the Council of the Judiciary is equivalent to the Administrative Office of the United States Courts. This Council provides a wide range of administrative, disciplinary, training, financial, management, program, and technological information services to the courts. The Supreme Court is a very different institution as well as the lower courts. The Council of the Judiciary has basically administrative and disciplinary tasks.

        The Council of Citizen Participation and Social Control elects the members of the Council of the Judiciary following a procedure that includes public scrutiny of the candidates who are appointed in a shortlist submitted by the Congress, the Executive, the Supreme Court, and the Prosecutor’s office.

        Maybe what is too hard to swallow for Mr. Cassel are the same reasons that Alvarez Grau has to criticize so harshly to Mr. Correa. Both professors have been under Chevron’s payroll, and maybe the idea of an Ecuadorean President being a progressive one whose first objective is defending the rights of the more vulnerable is not within their priorities of understanding. Furthermore, Alvarez Grau was a presidential candidate and an important member of one of the political parties that Ecuadorean voters have trashed out and that no longer exists favoring the political strength of Mr. Correa.
        Former judge Baltazar Garzón, who presided an international committee of prestigious professionals, commented on the Process of Reforms to the Judicial System by invitation of the Ecuadorean President. The panel organized their assessment by axis of intervention.

        • The first one was human talent. The report concluded with few administrative recommendations especially regarding technical processes of hiring judges and a periodic evaluation of them. The actual hiring process is very rigorous and includes warranties for a judicial career.

        • The second axis was about management models and the report concluded that the Council of the Judiciary has accepted the recommendations. Nowadays, the implementation of a new management model is having great success and the judicial system has improved its productivity between three and fivefold.

        • The third axis was about civil infrastructure and the recommendations made were to improve judiciary facilities that were insufficient, very old and neglected. Today, Ecuador has by large, the highest rate of investment in its judicial sector in the region.

        The committee mostly praised the process of judicial reform. The majority of recommendations made were to be implemented in the future, up to date; most of them have been executed already. In relation to the reform process, the committee made a series of comments with very favorable adjectives. Up to date, nobody who tried to be judge during the first selection process process has made an official claim of being affected during the process.

        However, we have to remember that losers like to blame their failure on somebody else.

        Reply
        1. Doug Cassel

          Here are a few brief comments in response to Gustavo:

          You seem to think that I was writing about the Council of the Judiciary. You are mistaken. I was writing about the Transitional Judicial Council, which functioned only for 18 months — long enough to select the entire Supreme Court and to remove or suspend more than 500 judges.

          You are correct that the Garzon committee had positive comments on many aspects of the Ecuadorian judiciary. But it had negative comments on the points I addressed: namely, the selection of the Supreme Court and, in particular, of Wilson Andino.

          The fact that no losing candidate has had the temerity to go before the National Court to argue that she or he, rather than one of the judges improperly selected, should be sitting on the Court, hardly implies an endorsement of the selection process. It suggests rather a recognition of the reality that few judges are likely to vote to unseat themselves.

          Finally, Gustavo — I can only address him by his first name, since he chooses not to tell us who he is — seems to think that I object to the Correa government because it is “progressive.” I applaud progressive governments. No one who knows me or my career would call me a conservative. But one can and should defend the poor and the oppressed, without also defending either the judicial fraud that infected the Chevron trial, or the politicized process that pretended to select a judge like Wilson Andino on the basis of “merit” – a claim so transparently false that it could not persuade the progressives on the Garzon panel to swallow the fiction.

          Reply
          1. Ted Folkman

            It’s fair to point out that Gustavo has not identified himself in the comment, but just so that everyone is on the same page, the Letters Blogatory terms of service permit pseudonymous comments as long as the commenter is not impersonating someone else.

            Reply
          2. Gustavo Domínguez

            Doug, first of all, I apologize for omitting my last name. However, if you follow Ted on twitter it would be very hard for you to miss my last name.

            I now understand, that you could be little misinformed because what you call the Transitional Judicial Council has the same functions and is the same institution that the Council of the Judiciary. The only difference between the two is that the Transitional was organized as a mandatory resolution of the Ecuadorean people voted in the referendum. The questions 4 of the Referendum, which I textually cite stated:

            “In order to overcome the crisis of the Judicial function would you agree to replace the plenary session of the Council of the judiciary by a technical Committee consisting of three delegates appointed one by the President of the Republic, one by the National Assembly, and one for the role of transparency and Social Control during a period of 18 months it takes each and every one of the functions of the Council of the judiciary and to restructure the judiciary by amending the Constitution, as established by Annex 4.

            I would also like to cite from the report, which I believe you read and was issued by Baltazar Garzon and the international committee:

            “Once proclaimed the results, the reform was legitimated by popular choice”. Not by Mr. Correa, as you seem to like readers to believe.

            The inform also concluded: “The international oversight was established as a temporary body of consultative, independent, impartial and independent, established character with a mission to accompany, monitor, analyze and evaluate the progress of this process, as well as suggest improvement proposals in a timely manner about any problems or weaknesses”

            And of course, any process of such magnitude could have problems or weaknesses that need solving. I do not know Mr. Andino, and my point is not to endorse his selection. However, I do resent your politically incorrect comment about the lack of character and courage of Ecuadoreans and their fear of lashing out against the Government. I believe you are not well informed about how brave Ecuadoreans are against bad governments. I am sorry but I believe that yours is a weak analysis of the real facts.

            And maybe refuting your last comment: “But one can and should defend the poor and the oppressed, without also defending either the judicial fraud that infected the Chevron trial”. I will say “But one can and should defend the poor and the oppressed, without allowing the most outrageous abuse to the environment and human rights of the indigenous people from the Ecuadorean Amazon inflicted by (Texaco) Chevron practices during 26 years”.

            Reply
            1. Doug Cassel

              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).)

              Reply
              1. Gustavo Domínguez

                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!

                Reply
                1. Doug Cassel

                  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.

                  Reply
        2. Ted Folkman

          Gustavo, I’m interested in the 2006 forum non conveniens case you mention. Do you have any details, and where did that case fit in with the political upheavals in Ecuador?

          Reply
          1. Gustavo Domínguez

            Chevron made the same representation than the Aguinda case in NY, as late as 2006. In July 2006, Chevron asked a US Federal Court in California to STAY the environmental claims brought by Ecuadorean plaintiffs as they were similar to those being adjudicated in the Lago Agrio litigation. Chevron urged the US court to defer to the prospective ruling go the Ecuadorian court, and its support of its stay motion, Chevron specifically cited the Aguinda Forum non-conveniens ruling with approval, reconfirming that Ecuador continued to constitute the preferable forum to decide such environmental damage claims.

            At this time, the reforms to the judicial system had already started. Also changed the people who managed the courts and people who Chevron seem to have very good connections with in the control of the government.

            Case No.3;06-cv-02820-WHA, (ND Cal July 6,2006) Defendants´ Amended Motion to dismiss complaint Or, In the Alternative, To Stay, Jane Doe I et Al v Texaco Inc, et al, case No. 3:06-cv-02820-WHA (n.D. Cal, May 26, 2006

            Reply
      2. Ted Folkman

        Thanks, Doug. Always fun to bat this around with you. Two thoughts:

        1. You seem to be distinguishing between front-end problems (court packing) and back-end problems (dismissal of overly independent judges), and let’s assume that there’s something to that distinction. What do you make of the recall elections that ousted several Iowa supreme court justices after that court legalized same-sex marriage? I’m not suggesting that the courts of Ecuador are like the courts of Iowa, but what would you say if I suggested that the courts of Iowa are systematically inadequate for UFCMJRA purposes because judges are subject to political pressure and have been ousted when they make a decision the people strongly oppose?

        2. You suggest that there may not be any mechanism to put new evidence of fraud before a court in Ecuador. That’s interesting. Let’s assume it’s true. Was there some change of law between the Aguinda forum non conveniens proceedings and today? If not, then what are we to make of the fact that Chevron professed to be satisfied with a system that did not allow such opportunities when it asked to have the case dismissed? As you can see, I’m just returning to one of my old themes here.

        Reply
        1. Doug Cassel

          Dear Ted,

          It is true that various court systems in the US have front end or back end problems. In Ecuador, unfortunately, in cases of interest to President Correa, the courts have front end, back end and “middle end” problems, all rolled into one. The cases against Chevron and El Universo are perhaps the most visible examples of this.

          And there are differences between lawful and transparent back end problems, as in Iowa, and the kinds of back end problems judges face in Ecuador. The Iowa recall referenda are established by law, and when recall petitions are put to a vote, the reasons for recalling judges are openly debated. To be sure, I do not support judicial recall by the voters, any more than I support the election of judges by the voters, as occurs in my home town of Chicago. But my philosophical preferences on both issues do not render unconstitutional or unlawful the decisions of lawmakers in Iowa and Illinois to adopt these ill-advised procedures.

          Ecuador is a very different case. In the last decade the judges of its highest courts (the Supreme Court, now renamed the National Court, as well as the Constitutional Court) have repeatedly been removed en masse, unlawfully, and in violation of basic principles of the independence of the judiciary (as the Inter-American Commission and the Inter-American Court of Human Rights have ruled).

          On your question whether a post-judgment mechanism existed before the forum non conveniens ruling in Aguinda, I don’t know, but let’s assume it did not. Chevron would hardly be justified in challenging the Lago Agrio judgment merely because of the absence of a post-judgment procedure. But Chevron would be — and is — justified in challenging the judgment because of the fraud that has not been rectified by the Ecuadorian courts, either on appeal in 2012 or in cassation in 2013. And as you know, in agreeing to accept the jurisdiction of Ecuadorian courts, Texaco reserved the right to oppose execution of any judgment on the grounds set forth in the New York statute, which include fraud.

          Reply
          1. Ted Folkman

            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?

            Reply
            1. Doug Cassel

              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.

              Reply
            2. Doug Cassel

              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.

              Reply
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