Monday, October 5, 2015

Chevron's Defense In Canada: The Abusive Litigation Strategy Continues

Reposted from The Chevron Pit

As we predicted, Chevron's jurisdictional shell game to evade its legal obligations to the people of Ecuador has now hit the courts of Canada with full force.

One might remember statements by various Chevron officials a few years ago that the company planned to fight the villagers it poisoned in Ecuador until "hell freezes over, and then skate it out on the ice." This blog describes one way the company tries to make it work in practice.

No doubt that Chevron's filing last week in Toronto of its written defense to efforts by impoverished rainforest villagers to enforce their judgment in Canada is a victory of sorts in that the company tried for three years to block the case from even proceeding.  The villagers had to go all the way to Canada's Supreme Court to force the oil major onto the playing field where neutral judges can actually analyze its outrageous claims. (For more on the unanimous Supreme Court decision and why it poses significant new risk for Chevron, see here.)

That's the good news. The bad news is that the villagers and their counsel once again might have to jump through the same old hoops to convince yet another trial court not to fall prey to Chevron's shell game. These are the same hoops the villagers and their lawyers have been forced to navigate ad infinitum since their claims against Chevron were originally filed in 1993.

For Chevron, the goal in this matter is simple: litigation in perpetuity. The company sold off its assets in Ecuador when it saw the evidence mount against it. The company clearly believes it is cheaper to fight the people it poisoned than to pay for a remediation of their ancestral lands and much-needed cancer treatment. Chevron clearly does not much care whether it loses any particular legal issue as long as its long-term strategy of delay remains viable.

True to this strategy, Chevron lawyers Clarke Hunter and Benjamin Zarnett are using the filing in Canada to repeat the discredited half-truths and outright lies used by Chevron to cover up and distract attention from its environmental crimes and fraud in Ecuador. Said wrongdoing by Chevron has been meticulously documented by more than 100 scientific evidentiary studies of the contamination. Three layers of courts (including five justices on the Supreme Court) in the South American nation have affirmed the fundamental fact of Chevron's liability. (For a summary of the evidence against Chevron, see here. For a summary of Chevron's cancer problem in Ecuador, see here. For the Ecuador Supreme Court decision, see here.)

Chevron's Canada defense makes it clear that the company plans to coax Canadian courts into the trap of re-litigating numerous procedural and substantive issues already decided by courts in Ecuador in the country where Chevron insisted the trial be held.

While the affected communities of Ecuador continue to suffer the shocking health and economic impacts of Chevron's contamination, consider the company's new machinations to delay relief:

  • After vigorously fighting the case in Ecuador's courts for 11 years, Chevron now wants Canada's courts to let it re-litigate whether the company was subject to jurisdiction during that entire time. In its submission, Chevron conveniently fails to mention that it voluntarily stipulated to jurisdiction in Ecuador. Ecuador's courts already ruled against the company on this issue. Chevron knows this claim is a loser, but it will use it to try to buy months of delay if Canada's courts let it.
  • Chevron also claims that a new statute in Ecuador which became law in 1999 (the Environmental Management Act) and was used by the villagers for procedural purposes was applied retroactively in violation of the country's Constitution. In fact, the substantive claims of the case against Chevron in Ecuador are based on a civil statute dating to 1861. Again, Chevron lost this issue in the courts of Ecuador. It is a certain loser in Canada, but of course that's not the point for the oil giant.
  • In another attempt to muck up the Canadian proceeding, Chevron is asking the court to rule that the sham "remediation" it conducted in Ecuador in the mid-1990s that resulted in a release for the company from Ecuador's government should bar the private lawsuit of the villagers. Yet the villagers were not a party to the release and cannot be bound by it. Ecuador's courts rejected Chevron's claim in this regard at every turn. So has an international investor arbitration panel convened by Chevron. Again, this is an opportunity for Chevron to buy time.
  • In what could be its most audacious demand, Chevron is urging Canada's courts to blindly accept the highly flawed findings from the "racketeering" show trial of U.S. trial judge Lewis A. Kaplan. Not only does Kaplan's ruling against the villagers completely contradict the Supreme Court of Ecuador, it is also wrong on the merits. The judge showed his hostility toward the Ecuadorians repeatedly, accepted Chevron's falsified evidence, and refused to even read the Ecuador trial court judgment. More than 35 law scholars from nine countries have filed a brief urging Kaplan's reversal. (For background on the many flaws in Kaplan's decision, see here and here.)

In a contest between Kaplan's judicial imperialism v. Ecuador's Supreme Court, we are siding with Ecuador's Supreme Court and we suspect Canada's courts will too.

Interestingly, Chevron lawyers Hunter and Zarnett are going all in-in on Chevron's corrupt and discredited witness, Alberto Guerra. In the company's defense submission, they repeat Guerra's lies -- made after Chevron paid him $2 million for his testimony -- that the plaintiffs "ghostwrote" the trial court judgment. That allegation has been completely disproven by Guerra's ever-changing testimony and a recent computer forensic analysis. (For background on the Guerra corruption issue, see here.)

Of course, Chevron hopes the day where Guerra has to testify under oath in Canada will never come. The company's plan is for Canada's courts to get so bogged down in the minutia of Ecuadorian law and procedure that the merits of Chevron's horrific contamination in the rainforest and fraudulent cover-up will never see the light of day. The goal is for the lawyers for the villagers to run out of funds before Guerra's bluff is called under oath before a neutral judge.

Canada's courts should be careful not to become complicit in Chevron's attempts to use the country's judicial resources to continue its abusive global demonization campaign. After waiting for 22 years, Ecuador's citizens deserve a final ruling on the merits as soon as possible.

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