THE CHEVRON-ECUADOR SAGA

Transcription

1 THE CHEVRON-ECUADOR SAGA DANIEL BEHN COMPLEXITIES IN THE SETTLEMENT OF INTERNATIONAL DISPUTES PLURICOURTS UNIVERSITY OF OSLO

2 OUTLINE 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

3 OIL PITS IN ECUADOR

4 THE NATURE OF THE DISPUTE 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).

5 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.

6 A BASIC TIMELINE 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)

7 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

8 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 Chevron files BIT arbitration against Ecuador claiming denial of justice Chevron v. Ecuador (PCA Arbitration)

9 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)

10 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 billion million 2011 Ecuador Appeals Court affirms judgment

11 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

12 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 billion USD for plaintiffs attorneys fees

13 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 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

14 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, Montevideo Conventions Inter-American Convention on Execution of Preventive Measures Inter American Convention on the Extraterritorial Efficacy of Judicial Decisions and Foreign Arbitral Awards

15 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

16 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 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.

17 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