Nails In The Coffin: The Final Chapters of Ecuador

I have described in detail, in numerous previous columns over several years, Ecuador’s corrupt efforts to almost $10 billion from Chevron Corp. for pollution damages allegedly caused by Texaco (whose interests were purchased by Chevron). Interested readers should consult these earlier columns by clicking on my name and reading the appropriate entries).

Forbes - Michael I. Krauss 24/10/2017

I have described in detail, in numerous previous columns over several years, Ecuador’s corrupt efforts to almost $10 billion from Chevron Corp. for pollution damages allegedly caused by Texaco (whose interests were purchased by Chevron). Interested readers should consult these earlier columns by clicking on my name and reading the appropriate entries).

As readers of this column know, the pollution in question was quite likely caused by Ecuador’s own state petroleum company, years after Texaco cleaned up the site and obtained a legal release from the Ecuadorean government. In October, finally, years and millions in legal fees later, justice is slowly but surely being meted out to those who spearheaded the failed attempt to extort Chevron.

 

• The plaintiffs’ (and their American attorney Steve Donziger’s) efforts to enforce their corruptly obtained Ecuadorean judgment against the assets of Chevron Canada Limited, a company distinct from Chevron Corp. is drawing to a close. The Court of Appeal for the province of Ontario (which, like most jurisdictions outside the US, has a “loser-pays” rule requiring unsuccessful litigants to pay reasonable lawyers’ fees of their victorious opponents) has ordered the Ecuadorian plaintiffs to deposit nearly C$1 million as security for costs of their appeal of adverse decisions against it, which appeals the provincial high court predicted are unlikely to succeed. “In my view, the Ecuadorian plaintiffs have not demonstrated that their appeal has a good chance of success,” Justice Gloria J. Epstein wrote in her 31-page decision. The court had discretion to waive the bond requirement for impecunious litigants, but Justice Epstein noted that the plaintiffs have “received a significant amount of funding for this litigation in the past” and that they refuse to provide information about their current sources of financing.

• The plaintiffs in Canada are evidently copying from their US playbook, enlisting entertainment stars in support of their cause. In Ontario, though, seem to be scraping the bottom of the ethical barrel, as they have enlisted Pink Floyd’s Roger Waters (he who has compared Israel to Nazi Germany and whose longstanding anti-Semitism has been revealed in a recent film by Canadian Ian Halperin) as PR support in Canada. With apologies to Seneca (or perhaps Ben Franklin): qui cum canibus concumbunt cum pulicibus surgent

• Further south, Reporting Justice Luis Felipe Salomão of Brazil’s Superior Court of Justice (STJ) issued an oral opinion refusing to recognize the Ecuadoran judgment in that country. Judge Salomão noted that enforcement would be contrary to public order because the judgment was based on fraud. The Reporting Justice’s vote to the STJ is consistent with the findings of Brazil's Federal Public Prosecutor’s Office (MPF) that the Ecuadorian judgment is illegitimate and unenforceable. The other members of the court’s Special Chamber are studying Justice Salomão’s vote before rendering a final decision.

• Several judges in the Southern District of New York have apparently filed complaints with the Empire State's Bar, seeking the disbarment of Steve Donziger for the corrupt actions detailed by Judge Kaplan in his landmark decision against the Ecuadorean plaintiffs. Let us never forget that some American lawyers dropped their assistance to the plaintiffs as soon as they were apprised of Donziger’s corruption. But others never did and, as previous columns have detailed, they have paid for their perfidy.

Those who have read my columns know that this is all a bit anticlimactic now. But until all enforcement suits are dismissed and all unethical lawyers punished, I will continue to report.  And yes, of course, true believers that American capitalism is Evil will surely comment that I am its lackey.  Sorry to burst your ideological bubble, but what I am a lackey of is the Rule of Law.  This enormous travesty of it, perpetrated by Ecuador and by American and foreign attorneys, will hopefully soon come to an end.

Michael Krauss is Professor of Law at the Antonin Scalia Law School of George Mason University, and is a nationally known scholar of Tort Law and Legal Ethics. His home page is here.

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