The latest chapter in the seemingly endless Chevron/Ecuador litigation began last week with attorney Steven Donziger and his Ecuadorian clients submitting separate appellate briefs to the Second Circuit arguing that the district court’s decision in favor of Chevron – ruling that Donziger and the Ecuadorians had obtained an Ecuadorian court judgment against Chevron by fraud – should be reversed. A number of interesting amicus curiae (“friend of the court”) briefs on specific legal issues were also filed this week in support of Donziger and the Ecuadorians, including briefs from EarthRights International (ERI), the Republic of Ecuador, and Amazon Watch with a number of other prominent NGOs.
The Chevron/Ecuador legal saga dates back more than 20 years to when the Ecuadorians first filed suit against Chevron (then Texaco) in federal court in New York for the environmental devastation caused by the company’s operations in the Ecuadorian Amazon. But Chevron argued that the case should be heard in Ecuador due to the doctrine of forum non conveniens (“inconvenient forum”), which allows U.S. courts to dismiss a case when there is another country that provides an adequate alternative forum that is more convenient to hear the case. The court in New York accepted Chevron’s arguments that Ecuador’s courts were more than capable of resolving the litigation fairly and adequately and dismissed the case on the condition that Chevron abide by any subsequent judgment of the Ecuadorian courts. The Ecuadorian plaintiffs eventually mustered the resources to refile the case in Ecuador and in 2011 won a historic $9.5 billion judgment against the oil company that has since been confirmed by two higher courts.
Rather than pay up, however, Chevron retaliated by filing suit against the Ecuadorian plaintiffs and their counsel in New York, arguing that the judgment had been obtained by fraud and racketeering. In a 180-degree reversal from its prior position, Chevron argued that the Ecuadorian judicial system – the same judicial system it had praised in getting the case dismissed – was so corrupt and subject to outside influence that no judgment rendered by its courts could be recognized as valid and enforceable by the United States. After a lengthy trial, in March 2014, Judge Kaplan issued a nearly 500-page decision in which he concluded, among other things, that he did not need to respect any rulings of Ecuador’s courts, because he found the entire Ecuadorian judiciary was not impartial. Donziger and the Ecuadorians appealed.
ERI’s amicus brief focuses on this particular aspect of the district court’s decision, demonstrating why it was incorrect and must be overturned. Since Chevron had originally argued that the case should be tried in Ecuador, over the objections of the Ecuadorian plaintiffs, and had defended the adequacy of the Ecuadorian judicial system, it should not now be able to turn around and attack the adequacy of that same system in order to invalidate an unfavorable judgment. A litigant who chooses to give up the protections of the U.S. judicial system in order to litigate in another country must bear the risk that the other country’s courts may not possess the same due process or impartiality, particularly when that party chose to litigate there over the warnings and objections of the plaintiffs who originally filed in U.S. court. ERI’s brief shows that the district court’s decision, if allowed to stand, would result in never-ending litigation and wasted resources, and destroy judicial efficiency.
Amazon Watch, joined by a number of other nonprofit advocacy organizations, also filed an amicus brief in support of the defendants emphasizing the broader implications of the decision on the rights of activists and advocacy organizations and the chilling effect on future speech and advocacy. By incorrectly classifying constitutionally protected speech and advocacy in support of the Ecuadorians as wrongful conduct, Judge Kaplan’s decision poses a severe threat to the rights to expression, association, political participation, and access to courts guaranteed by the First Amendment.
An amicus brief was also filed by the Republic of Ecuador, which condemned the court’s disrespect for the foreign sovereign and strongly defended the country’s judicial system.
Together, defendants and amici show just how much is at stake in this case and present a number of convincing grounds for overturning the district court’s decision. Chevron’s appellate brief will be filed in the next few weeks and likely followed by other amicus briefs in support Chevron. Meanwhile, the Ecuadorians continue to suffer from the effects of the pollution and the end to their suffering and the conclusion of this saga appears little closer than it was 20 years ago.