Submitted by: Amazon Defense Coalition - FDA
Posted: Sep 07, 2018 – 02:27 PM EST
QUITO, Ecuador, Sep. 07 /CSRwire/ - Indigenous leaders and rainforest communities in Ecuador’s Amazon today criticized a secret panel of three private trade arbitrators for trying to interfere with the enforcement of their $12 billion pollution judgment against Chevron in Canadian courts under the supposed “authority” of the U.S.-Ecuador Bilateral Investment Treaty.
“This decision by three male arbitrators who claim the right to ‘judge’ Indigenous peoples and impoverished farmers secretly from the comfort of luxurious hotel conference rooms in the United States and Europe is outrageous,” said Carmen Cartuche, an Ecuadorian community leader and the President of organization that brought the lawsuit against Chevron on behalf of 30,000 affected peoples. “Their effort is little more than an attempt by the global corporate establishment to use unfair trade agreements to try to block legitimate social movements that hold serial polluters like Chevron accountable.”
“These arbitrators engaged a wasteful nine-year secret process that can only be described as a miscarriage of justice that is highly disrespectful to the Indigenous peoples of Ecuador and indeed to all victims of corporation pollution,” said Steven Donziger, the longtime lawyer for the affected communities. (See here for Donziger bio.) “The arbitrators personally reaped millions of dollars in fees to produce a largely irrelevant decision that is unenforceable as a matter of law and will be ignored in jurisdictions that are being asked to enforce the judgment against Chevron.”
Chevron filed the trade arbitration action in 2008 against Ecuador’s government as evidence against it mounted in the pollution trial, which culminated in a $9.5 billion judgment against the company after it was found to have dumped billions of gallons of cancer-causing oil waste into the rainforest. Chevron had fought for years to have the trial held in Ecuador and had accepted jurisdiction there. (See this summary of the evidence against Chevron.)
The judgment against Chevron is now worth roughly $12 billion with interest.
After Chevron lost the case after an eight-year trial in its preferred forum of Ecuador, it threatened the Indigenous peoples with a “lifetime of litigation” and vowed never to pay. In 2015, Canada’s Supreme Court ruled unanimously that the Ecuadorians could try to enforce their judgment in that country against Chevron assets, estimated to be worth $15 to $25 billion. Two other appellate courts in Canada also issued decisions in favor of the Ecuadorians. (See here.)
Chevron in the meantime is the subject of a criminal referral letter to the U.S. Department of Justice for trying to fabricate evidence to block enforcement of the Ecuador judgment. (See here.) The arbitral panel relied largely on the fabricated evidence for its conclusions that is not the subject of the DOJ referral letter, said Cartuche.
The three lawyers who serve as the secret private arbitrators in the Ecuador matter -- Grigera Naon, Vaughn Lowe, and V.V. Veeder – have in the past been harshly criticized by civil society organizations for illegally interfering in the Ecuador trial. All have refused demands to disclose how much they are charging for their services, but it is estimated to be $20 million each for the long proceeding, said Cartuche.
Grigera Naon, an Argentine who lives in the United States, has been appointed repeatedly to secret investor arbitration panels by the Chevron law firm King & Spalding in cases where the government of Ecuador is a defendant. Grigera Naon has never ruled in favor of Ecuador, and on two occasions he wrote highly unusual dissenting opinions where Ecuador won to position himself to be appointed by Chevron in the current arbitration, said Donziger.
"An analysis of Grigera's rulings shows he has never ruled against a King & Spalding client, be it Chevron or any other client," said Donziger. "The man simply has no independence and it further underscores the many conflicts of interest with the secret trade court. Grigera Naon and the other arbitrators needs to disclose how much money they made from Chevron from this clearly illegitimate secret court."
Here are full statements from Donziger; Cartuche; and Aaron Page, a U.S. lawyer for the affected Ecuadorian communities who is an authority on international arbitration matters.
Statement from Carmen Cartuche, President of the Amazon Defense Coalition (FDA), the grass roots organization of Indigenous peoples and farmer communities that won the lawsuit against Chevron:
This decision by three male arbitrators who claim they have a right to “judge” Indigenous peoples and impoverished farmers secretly from the comfort of luxurious hotel conference rooms in the United States and Europe is outrageous. Their decision is an attempt by the global corporate establishment to use unfair trade agreements try to block legitimate social movements. Our campaign held an American corporation accountable for its environmental crimes and fraud committed on our ancestral lands. The three arbitrators did not consult with us, ask for testimony, or otherwise respect the basic existence of those harmed by Chevron. This decision is legally irrelevant and will be ignored by the world as the travesty of justice that it is. It will not block our litigation to hold Chevron accountable in Canada so that just compensation can be paid to the thousands of people who have died of cancer or otherwise been harmed by the slow genocide the company is imposing on our country.
Donziger’s full statement is here:
The findings of the private arbitrators who met in secret and did not accept the Ecuadorian Indigenous peoples as a party are deeply flawed and rest almost completely on fraudulent evidence produced by Chevron to hide its massive toxic dumping in Ecuador’s rainforest as found by four layers of courts in that country. Seventeen separate appellate judges in Ecuador, including the country’s entire Constitutional Court, have rejected the factual basis of the arbitral findings. For these reasons and others, the decision is legally irrelevant and unenforceable as a matter of law. The arbitral decision will not stop the Canadian enforcement proceeding against Chevron, which already has been validated by the Canada Supreme Court and will continue to conclusion.
The latest arbitral decision also represents a radical and dangerous new assertion of corporate power over human rights via the increasing use of secret private trade courts that favor corporations over the average citizen. For the first time in history, a private trade panel of arbitrators meeting in secret is trying to nullify a legal decision of a sovereign nation made as a result of a human rights litigation between private parties that has been affirmed as legitimate by multiple courts. This arbitral ultimately will be ignored in Canada and other jurisdictions where the Ecuador judgment is being enforced.
Aaron Page, U.S. legal counsel to the Ecuadorian communities, issued the following statement:
In the recently released arbitral decision, a trio of British and American corporate lawyers and elite academics, repeat players in an Investor-State Dispute System (ISDS) explicitly designed to protect the interests of multinational corporations, purport to overrule lengthy and detailed decisions of Ecuador’s Supreme Court and Constitutional Court on issues of Ecuadorian law. It obediently swallows even Chevron’s most egregious false evidence, such as witness testimony that Chevron admitted to paying millions of dollars for and that the witness was forced to recant on cross-examination. It embraces the most tortured arguments in favor of corporate immunity, while ignoring the humanitarian crisis linked to Chevron’s contamination that has devastated Ecuadorian indigenous and rural peoples for over 50 years.
It is little wonder that ISDS is increasingly despised by people across the globe and is headed for the dustbin of history. The inclusion of ISDS has killed all recent attempts at new trade treaties, and ISDS is effectively dispensed with in the renegotiation of NAFTA. ISDS has proven, time and time again, its utter inability to restrain its rampant pro-corporate bias and tendency to reach far past any jurisdictional bounds to intrude on national sovereignty and attack legitimate social movements that threaten corporate interests. The recent Chevron arbitral decision reveals the system’s excess and arrogance at its rotten core. The affected communities in Ecuador will continue their struggle for justice and will continue to insist that their rights as peoples and as private litigants be respected by the Republic of Ecuador and foreign national courts around the world.
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