Yesterday, U.S. District Court Judge Leonard Sand declined to stay international arbitration sought by Chevron in complaints against the Republic of Ecuador. After repeatedly asserting that there need be only one claim that is arbitrable in Chevron's complaint, Judge Sand dismissed Ecuador's motion to stay the arbitration under the U.S.-Ecuador Bilateral Investment Treaty. Sadly, Judge Sand's ruling may mean more delay in getting relief for the 30,000 people in Ecuador affected by Chevron's massive contamination of their rainforest home, but this was a battle between the oil giant and Ecuador, and does not directly affect the lawsuit originally brought by Ecuador's indigenous people to force Chevron to clean up its toxic mess.
For years in the 1990s, Chevron argued in the same court to have the environmental lawsuit – originally filed in 1993 in New York against Chevron-owned Texaco – sent to Ecuador. Chevron made repeated commitments to the District Court to be subject to jurisdiction in Ecuadorian courts, and satisfy any judgment in the case, reserving its rights to challenge the verdict only in a very clearly-defined way – under what the judge and lawyers in the courtroom this week referred to as "CPLR 5304." Section 5304 of the New York State Civil Practice Law and Rules (CPLR) sets forth grounds for challenging a "foreign judgment," if an entity believes it did not receive due process of law, for instance. Breaching the commitments it repeatedly made to the District Court – and mandated by the Circuit Court of Appeals – Chevron is "jumping the gun," according to one of the lawyers for Ecuador, and in the final stages of the 17-year lawsuit, trying to find another way to evade responsibility for its environmental devastation of Ecuador's rainforest region.
After the decision, Steven Donziger, a U.S. lawyer for the plaintiffs, said:
"We have explained to the court why we believe Chevron is trying to undermine the rule of law in both the U.S. and Ecuador by taking the litigation over the world's worst oil-related disaster to a secret arbitration where the victims of the company's misconduct cannot appear. This end-run maneuver is just the latest chapter in a long pattern of abuse by Chevron when it comes to the indigenous people of Ecuador. At the end of the day, a public court will decide the claims of the victims and if they receive a favorable judgment against Chevron we expect to enforce it in countries where the company has assets."
As the verdict in the trial is expected within months, Chevron is increasingly desperate to find any way to escape a huge liability in the case. Judge Sand, the same judge who declined Ecuador's motion to stay the international arbitration yesterday, ruled against Chevron's motion to take the case to arbitration in 2007. And while ruling for Chevron, Judge Sand opened on the first day of the hearing by asking Chevron why its previous representations and agreements with the court didn't preclude it from arbitration. Before issuing his ruling, the judge also said that he was skeptical of the timing of Chevron's move, likely coming just ahead of a verdict in the marathon 17-year court battle.
As the Associated Press reported:
"[Judge Sand's] ruling does not directly affect the lawsuit Chevron is fighting in Ecuador, where a court-appointed expert has recommended the oil company pay up to $27 billion for environmental damages and related illnesses."
In fact, the judge's decision has nothing to do with the merits of the case against Chevron and the staggering mountain of evidence that shows Chevron's unambiguous responsibility for massive oil contamination in the Ecuadorian Amazon. This is just Chevron's latest legal maneuver to try to evade responsibility for the toxic legacy it left behind in Ecuador that continues to cause suffering, sickness, and death for men, women and children in the indigenous and campesino communities throughout Ecuador's rainforest region.
Today, the Republic of Ecuador's Attorney General Diego Garcia said that Ecuador is considering appealing the decision. And today, the frustrating results of the latest courtroom skirmish are likely trickling through the rainforest communities, like the rainbow-colored slicks of oil that still course their rivers and streams.
Han Shan is the Coordinator of the Clean Up Ecuador Campaign.