A couple days ago, international human rights attorney par excellence Marco Simons of EarthRights International posted some analysis of oil giant Chevron's latest tactics to evade accountability for its oil disaster in Ecuador. In the wake of a February court ruling finding Chevron guilty of massive contamination in the Ecuadorian Amazon, Marco looks at the various ways the company is trying to avoid paying the $18 billion dollars in compensatory and punitive damages ordered by the judge who delivered the verdict. The Chevron Pit blog beat me to blogging Marco's astute analysis, so I'm going to re-post in full their blog from yesterday. Note: Marco's last name is Simons and not Simon, as mistakenly used below.
The post, from The Chevron Pit:
"I'm not aware of any case where a court has ever even tried to restrain foreign plaintiffs from enforcing a foreign judgment in foreign jurisdictions."
"...even if Chevron wins the enforcement battle in the US, that doesn't end the matter, because the plaintiffs will go to other countries to enforce the judgment. The plaintiffs only need to win once or a few times, while Chevron needs to win everywhere."Interesting observations from Marco Simon, Legal Director of Earth Rights International, about Chevron's effort to escape the $18 billion Ecuadorian judgment in U.S. federal court.
As Simon points out, Chevron wants an American judge to rule that the Ecuadorian judgment is unenforceable so the oil giant has a legal tool to use in foreign courts to prevent the Ecuadorians from obtaining the award by seizing Chevron's assets in foreign countries. (Chevron has no assets in Ecuador.) To get that ruling, Chevron has to jump a few legal hurdles, like -- Can an American judge tell Ecuadorians what to do, and can the American judge tell other countries' court systems what they can and can't do? Only time will tell, but Simon is exactly right when he says Chevron will have to convince dozens of countries (where Chevron has assets) that an American judge can tell their judges what to do.
"The Ecuadorians can go after Chevron in the US, but they can also try to enforce the judgment in Argentina, Brazil, Venezuela, and dozens of other countries where Chevron operates or has assets. Not surprisingly, Chevron is working hard to prevent that….
"...Chevron's entire case is premised on the notion that Judge (Lewis) Kaplan (the American judge) has jurisdiction over the Ecuadorian plaintiffs and other members of the plaintiffs' class action. That is a highly questionable position, and one that will receive considerable scrutiny from the Second Circuit. Even if Judge Kaplan can prevent the American lawyers from proceeding to enforce the judgment, if he doesn't have jurisdiction over the Ecuadorians, he cannot prevent them from going to other countries to seek enforcement."
And, then there is the nagging issue of Chevron's asking Judge Kaplan to act as the world's judiciary police chief.
"The Second Circuit may also be concerned with the propriety of interfering with foreign countries' judicial processes. I'm not aware of any case where a court has ever even tried to restrain foreign plaintiffs from enforcing a foreign judgment in foreign jurisdictions."Simon also reminds us that Chevron is getting what it asked for:
"Chevron has every opportunity to challenge the judgment in the Ecuadorian courts; Chevron chose to litigate in Ecuador over the plaintiffs' objection, and the Second Circuit may well hold them to that choice. In fact, in a recent decision in a related case, the Second Circuit said that Chevron was bound by its original promise to satisfy any judgments in Plaintiffs' favor, reserving its right to contest their validity only in the limited circumstances permitted by New York's Recognition of Foreign Country Money Judgments Act."Given Judge Kaplan's comments about Ecuador, its court system and the Ecuadorians themselves, no one thinks he won't rule for Chevron. His bias is obvious. Other judges in other countries may not share his sentiments, however.
"Ultimately, even if Chevron wins the enforcement battle in the US, that doesn't end the matter, because the plaintiffs will go to other countries to enforce the judgment. The plaintiffs only need to win once or a few times, while Chevron needs to win everywhere. Even Chevron wins twenty cases, just one loss could cost the company hundreds of millions or billions of dollars," wrote Simon.