THE CHEVRON-ECUADOR SAGA DANIEL BEHN€¦ · Chevron – May 1, 2013 stay of proceedings Salazar v....
Transcript of THE CHEVRON-ECUADOR SAGA DANIEL BEHN€¦ · Chevron – May 1, 2013 stay of proceedings Salazar v....
DANIEL BEHN
PLURICOURTS
UNIVERSITY
OF OSLO
THE CHEVRON-ECUADOR SAGA
COMPLEXITIES IN THE
SETTLEMENT OF INTERNATIONAL
DISPUTES
Texaco’s Operations in Ecuador
The Original Lawsuit in US Courts
The Case in Ecuadorian Courts
The RICO Case in US Courts
The Enforcement Cases
The Bilateral Investment Treaty Tribunals
OUTLINE
OIL PITS IN ECUADOR
Indigenous communities in Northern Ecuador claim that over the course
of many decades, Texaco dumped millions of barrels of produced water
into thousands of above ground pits.
They claim the environmental pollution is heavy in cancer-causing
polycyclic aromatic hydrocarbons (PAHs) and that the oil responsible for
contamination of the regional water supply.
The original lawsuit claims that this soil and water contamination has led
to a pronounced increase in illness among the local population and that
the responsible party is Texaco (now Chevron).
THE NATURE OF THE DISPUTE
Chevron, who acquired Texaco in 2001, claims that there is no causal link
between the rise in illness and the contamination from the oil pits.
They claim that they are not liable for environmental damage because of
a release agreement that Texaco signed with Ecuador in 1995 that
required Texaco to spend about 45 million USD on remediation work.
They claim that, even if they were liable for the environmental damage,
the only party with standing to sue them is the state of Ecuador and not its
citizens.
THE NATURE OF THE DISPUTE
1964 Texaco begins exploration in the Oriente region
of Ecuador
1966 Texaco becomes operator of oil consortium
through a 25 year concession
1976 PetroEcuador becomes majority owner of
consortium
1992 Texaco ceases all operations in Ecuador
1993 Lago Agrio plaintiffs (LAPs) file environmental
tort suit against Texaco in New York
Aguinda v. Chevron (SDNY)
A BASIC TIMELINE
1995 Texaco signs environmental remediation
agreement with Ecuador and PetroEcuador
1996 Ecuador intervenes as Amicus in US
litigation claiming that only the government
has the right to sue Texaco
1997 US and Ecuador sign Bilateral Investment
Treaty (BIT)
1998 Texaco completes remediation work valued
at approximately 45 million USD
1999 Ecuador passes Environmental
Management Act granting private right of
action for environmental torts
2001 Chevron acquires Texaco
2001 After many years of motions, the US Second
Circuit Court of Appeals dismisses case on
forum non conveniens grounds
2003 LAPs file suit in Sucumbíos region of Ecuador
Aguinda v. Chevron (Sucumbíos Court)
2007 Rafael Correa elected President of Ecuador
2009 Chevron goes on the offensive
‘We will fight until hell freezes over and
then fight it out on the ice.’
2009 Chevron files BIT arbitration against Ecuador
claiming denial of justice
Chevron v. Ecuador (PCA Arbitration)
2010 Chevron launches discovery motions in multiple
jurisdictions
Discovery from Berlinger (2d Cir.)
Discovery from Bonifaz (D. Mass.)
Discovery from UBR (3d Cir.)
Discovery from Espinosa (D.D.C.)
Discovery from ELAW (D. Ore.)
Discovery from Rourke & Picone (D. Md.)
Discovery from Shefftz (D. Mass.)
Discovery from Kohn (3d Cir.)
Discovery from Bjorn Bjorkman (D. Colo)
Discovery from Douglas Mackay (E.D. Cal.)
Discovery from Kelsh (N.D. Cal)
Discovery from Amazon Defense Fund (S.D. Fla.)
Discovery from Patton Boggs (SDNY)
2010 Ecuador and LAPs asks US courts to stay BIT
arbitration
Ecuador v. Chevron (SDNY)
2011 Chevron files RICO claim and anti-enforcement
claim against Donziger and LAPs in New York
Chevron v. Donziger (SDNY)
2011 Ecuador Provincial Court (Judge Zambrano)
issues 18.2 billion USD judgment against
Chevron
8.6 billion + 8.6 billion + 860 million
2011 Ecuador Appeals Court affirms judgment
2011 New York District Court (Judge Kaplan) grants
preliminary injunction against enforcement of
Ecuador judgment
Chevron v. Naranjo (SDNY)
2012 US Second Circuit Court of Appeals vacates
injunction
2012 Chevron files writ of certiorari to US Supreme
Court
2012 US Supreme Court denies certiorari
2012 Chevron petitions Ecuador Supreme Court
2012 Ecuador refuses to exempt Chevron from bond
requirement
2012 District Court of the Hague refuses to vacate
Chevron’s 2006 BIT Award for 96 million USD
2012 Ecuador brings claim against US over
interpretation of BIT
Ecuador v. US (PCA Arbitration)
2012 New York District Court denies partial summary
judgment in RICO case
Chevron v. Donziger (SDNY)
2012 Ecuador Provincial Court increases judgment
to 19.02 billion USD for plaintiffs attorneys fees
2012 LAPs file petition with Inter-American Court of
Human Rights ‘There is an irony here. The Ecuadorans have firmly rejected
the idea that the arbitral tribunal has the authority to boss
Ecuador around. But they are now asking the Inter-American
Commission to boss Ecuador around! Perhaps the view is
that the Inter-American Commission on Human Rights has
more legitimacy than the arbitral tribunal? It’s not immediately
clear to me why this should be so, since in both cases
Ecuador’s submission to jurisdiction arises out of its own
treaty commitments.’
2012 Ecuadorian Appeals Court refuses to block
enforcement of judgment as per BIT tribunal
First, Second, and Third Interim Measure Orders
(Chevron v. Ecuador)
2012 LAPs terminate Inter-American Court of Human
Rights proceedings
2012 LAPs seek enforcement in Brazil, Canada, and
Argentina
Yaiguaje v. Chevron – May 1, 2013 stay
of proceedings
Salazar v. Chevron – still pending
Aguinda v. Chevron (Argentina) – assets
frozen but unfrozen after appellate
decision on June 4, 2013
2 Montevideo Conventions
Inter-American Convention on Execution
of Preventive Measures
Inter American Convention on the
Extraterritorial Efficacy of Judicial
Decisions and Foreign Arbitral Awards
2012 Patton Boggs sues Chevron for tortious
interference of contract
Patton Boggs v. Chevron (DCC)
2012 Some LAPs (the Huaorani) sue Donziger in US
Courts asking for declaratory relief
Huani v. Donziger (SDNY)
2012 Judge Zambrano Dismissed from the bench
2013 Third party funding details emerge -- at least 12
funders
2013 Chevron moves to assert claims against Patton
Boggs
2013 US court confirms 2006 arbitral award against Ecuador
2013 LAPs seek to attach 2006 BIT award in Ecuador
2013 SEC filing by Chevron Shareholders
2013 Andean Trade Preferences Act
‘failed to act in good faith in recognizing as binding or in enforcing arbitral awards in favor of United States citizens … which have been made by arbitrators appointed for each case or by permanent arbitral bodies to which the parties involved have submitted their dispute.’
2013 New discovery in RICO case shows complex bribery scheme by Chevron in Ecuador – Zambrano will testify in RICO trial on behalf of Donziger and LAPs.
2013 BIT arbitration issues fourth interim award
2013 Chevron denied partial summary judgment for
the third time
2013 Chevron attempts to bifurcate RICO case
between Donziger and LAP plaintiffs – motion
denied
2013 Chevron asks for bench trial
2013 Second Circuit hears petition to remove
Judge Kaplan from RICO case – Petition
denied
2013 RICO trial starts in mid-October
2013 Ecuador Supreme Court upholds main award
but cuts out punitive damages