The Amazon Pink Dolphin’s Voice: Chevron, the ongoing saga in the Ecuadorian rainforest

Ecuador Communities Target Chevron’s Secret Investor Arbitration in New Court Filing, Says Amazon Defense Coalition

 

WASHINGTON, Feb. 10, 2012 /PRNewswire via COMTEX/ — Petition Accuses Oil Giant of Trying to Deny Human Rights to Thousands of Rainforest Inhabitants

Indigenous rainforest communities from Ecuador who recently won an $18 billion judgment against Chevron for environmental damage have filed suit before a renowned international human rights court seeking an order that would prevent the oil giant from using a secret arbitration to violate their legal rights.

The Ecuadorians filed a petition before the Inter-American Commission on Human Rights strongly criticizing Chevron’s “egregious misuse” of the U.S.-Ecuador Bilateral Investment Treaty (“BIT”) to violate human rights protections. They are seeking an order requiring Ecuador’s government to protect their right to life, physical integrity, health, a fair trial, and equal treatment under the law as guaranteed by the American Declaration of the Rights of Man and other international human rights treaties.

The petition was filed against Ecuador’s government because Chevron is seeking an order from the private investor arbitration panel mandating that the country’s President freeze the court proceedings until the BIT panel can rule, a process which normally takes three years. Such an order would violate Ecuadorian and international law as well as the human rights protections that the Commission is sworn to uphold, said Pablo Fajardo, the lead lawyer for the Ecuadorian plaintiffs in the underlying environmental case.

The Commission, located in Washington, D.C., hears claims for emergency relief from individual human rights victims and derives its authority from the the multilateral international treaty that created the Organization of American States, of which Ecuador and the United States are members. Any order from the Commission is binding on the government against which it is issued.

“The threats are serious and urgent,” the plaintiffs wrote in their petition, referring to their own plight living near extensive levels of toxic oil contamination in the Amazon rainforest for almost 50 years. An Ecuadorian court in 2011 found Chevron liable for dumping billions of gallons of toxic waste into the Amazon when it operated under the Texaco brand from 1964 to 1992, causing dramatically increased rates of cancer and decimating indigenous groups. See here and here.

“The idea that an arbitral panel would even contemplate ordering a sovereign state to violate its human rights obligations is repugnant not only to the substance of international human rights law but to the very core of the international legal order,” the petition added.

The petition also argues that the relief sought by Chevron extends well beyond the scope of the BIT in that it does not authorize private investor arbitration panels to act as a “transnational” appellate court that can override decisions in a public court system of a sovereign nation. The BIT is normally limited to allowing investors to seek monetary damages directly from a government if it feels it has been treated unfairly, a claim that Chevron makes but that the indigenous communities reject.

The Ecuadorians believe the investor arbitral panel convened by Chevron violates international law in that it bars the rainforest communities from appearing before it, does not publish its decisions, and does not inform the public about when and where it meets. Further, its three members — all practicing lawyers — suffer from a conflict of interest in that they each stand to reap millions of dollars in fees paid in part by Chevron simply by granting jurisdiction over the case when there is little if any basis to do so.

“What Chevron is trying to with this secret arbitration is utterly offensive to anybody who believes in the rule of law,” said Fajardo, whose clients initially filed the environmental lawsuit against Chevron in 1993 in U.S. federal court in New York before it was shifted to Ecuador at Chevron’s request.

“Chevron is trying to convince the private arbitral panel to override the decisions of a public court in a sovereign country where Chevron chose to litigate, even as Chevron continues to pursue appeals in that country making the same arguments it makes before the secret panel,” he added. “It’s just an outrageous abuse of judicial process.”

“Any decision by the panel granting Chevron’s requests would violate international law and certainly would not bind the indigenous communities who are not a party to the proceedings,” he added. “We also believe it will backfire against Chevron if the company carries through on its threats to try to block enforcement of the legitimate Ecuador judgment in courts around the world.”

Ecuador’s government has argued that the oil giant has no right to even file the claim under the BIT given that the treaty did not take effect until 1997, or five years after Chevron left the country.

Chevron’s latest maneuver prompted renowned Latin American jurist Jose Daniel Amado to send a letter to U.N. Secretary General Ban Ki-moon asking for a review of what he called an “improper and illegal expansion of arbitral powers” by the panel. See here and here. The Amado letter gained immediate support from jurists around the world, who sent a separate letter backing Amado’s arguments to the U.N. official in charge of international arbitration, Renaud Souriel.

Souriel is hosting a meeting this week in New York to evaluate the issue of “transparency in investment-State arbitration.”

Chevron is seeking any forum it can to delay the Ecuador proceedings given that the company could soon face judgment enforcement actions around the world, said Fajardo. Chevron stripped its assets from Ecuador and a company spokesman said the oil giant would fight the rainforest communities “until hell freezes over, and then skate it out on the ice.”

“Chevron lost the trial,” Fajardo said. “It lost the first-level appeal in Ecuador. It lost in the United States. It has very few options left other than a secret arbitration that will carry no weight in any country that observes the rule of law.

“Nevertheless, by filing this petition, we are showing that we will use every legal means available to expose Chevron’s disrespect for the rule of law and to protect the rights of our clients.”

Chevron tried a similar maneuver before, and it backfired.

Last year, Chevron convinced a U.S. federal judge in New York to issue an unprecedented worldwide injunction blocking enforcement of the Ecuador judgment. A New York appellate court recently overturned that decision and strongly rebuked Chevron for mischaracterizing the law, the latest in a string of legal defeats for the oil giant. See here.

SOURCE Amazon Defense Coalition

Criticism of Chevron Grows Over Use of “Secret” Panel to Evade $18 Billion Ecuador Judgment, says Amazon Defense Coalition

 

NEW YORK, Feb. 13, 2012 /PRNewswire via COMTEX/ — International Jurists Protest Oil Giant’s Latest Maneuver

The Andean Commission of Jurists and five prestigious international law experts from around the world have joined a growing chorus of criticism targeting Chevron’s attempt to use a secret investor arbitration as part of its campaign to evade an $18 billion environmental judgment in Ecuador, according to letters released today.

In a letter to United Nations Secretary General Ban Ki-moon, the Andean Commission said it was “alarmed” at Chevron’s attempt to use a private investor arbitration convened under the U.S.-Ecuador Bilateral Investment Treaty (“BIT”) to influence the outcome of a private litigation between indigenous groups and Chevron in Ecuador’s courts. The panel meets in secret and bars the Ecuadorians from appearing before it.

After an eight-year trial, a three-judge appellate panel in Ecuador on January 3 affirmed an $18 billion judgment against the oil giant for causing what experts believe is one of the worst oil-related disasters on the planet. The decision was based on a 220,000-page evidentiary record, more than 100 expert reports from both parties, and 18 years of litigation in the courts of the U.S. and Ecuador.

The letter from the Andean Commission, part of growing chorus of international criticism of Chevron, accused the oil giant of continuing to use “questionable litigation tactics to deny those injured any forum to seek justice and compensation for their injuries.”

“The latest such tactic is the issue by Chevron of … an arbitration … to force Ecuador’s government to violate international law and quash the human rights of its own citizens by essentially nullifying the result of their case after almost two decades of litigation,” said the letter.

The Andean Commission, which has consulting status with the United Nations, is one of the leading human rights organizations in South America. Its board members include Diego Garcia-Sayan, the former Chief Justice of the Inter-American Human Rights Court; renowned investor-state arbitrator Pedro Nikken; and other distinguished jurists from Colombia, Chile, Bolivia, Ecuador, Peru and Venezuela.

Separately, five international law experts wrote a letter to a United Nations official who oversees international arbitrations to question Chevron’s attempts to bypass the public court system of a sovereign nation where it wanted the trial held just because it lost based on the evidence.

“Allowing (arbitration) panels to determine recognition and enforcement issues in private litigation transforms them into venues of final appeal in a way that was never intended and offends the inherent trustworthiness of legal systems around the world to determine matters for themselves,” the jurists wrote to Renaud Sorieul, the Secretary of the United Nations Commission on International Trade Law.

“(Treaty) panel awards ordering States to interfere in private judicial proceedings between different parties is a direct violation of well settled principles of sovereignty and, in this particular case, human rights under international law,” the letter added. The letter was sent Feb 9, when the U.N. arbitration body headed by Sorieul was in session in New York to discuss the need for greater transparency in investor-State arbitration.

Just last week, distinguished international law jurist Jose Daniel Amado issued a separate letter to U.N. Secretary General Ki-moon asking for a review of Chevron’s “egregious misuse” of the BIT. Amado, a specialist in international arbitration, told the Secretary General that Chevron’s attempt to use the arbitration “stands in direct violation of international law” and threatens to “quash” the fundamental human rights of the 30,000 citizens who initially brought suit against Chevron in the United States in 1993. See here.

Chevron shifted the environmental lawsuit from U.S. federal court to Ecuador in 2002 after praising the country’s judicial system and promising to abide by any judgment there, subject only to narrow enforcement defenses that did not include international arbitration.

The five international jurists who signed the Sorieul letter are Donald K. Anton, Associate Professor of International Law, The Australian National University College of Law; Naomi Roht-Arriaza, Professor of Law, University of California, Hastings College of the Law; Jorge Avendano V., Principal Professor of Law, Pontificia Universidad Catolica del Peru; Timo Koivurova, Research professor, The Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland; and Professor Cesare Romano, W Joseph Ford Fellow, Loyola Law School in Los Angeles. Other jurists are expected to sign on in the coming days.

Separately, the indigenous rainforest communities filed suit last week in Washington, D.C. before a renowned international tribunal seeking an order that would prevent the oil giant from using the secret arbitration to violate their human rights.

The Ecuadorians are seeking an order from the Inter-American Commission of Human Rights requiring Ecuador’s government to protect their right to life, physical integrity, health, a fair trial, and equal treatment under the law as guaranteed by the American Declaration of the Rights of Man and other international human rights treaties. Any order from the Commission, which was established by the treaty that created the Organization of American States, is binding on the government against which it is issued.

The Ecuador court found that Chevron deliberately dumped billions of gallons of toxic waste into Amazon waterways that local inhabitants relied on for drinking water. The Ecuador trial court found evidence that Chevron’s contamination decimated indigenous groups and caused an outbreak of cancer, spontaneous miscarriages, and other oil-related diseases. See here and here.

On January 4, the day after the Ecuador appellate court decision, Chevron petitioned the private arbitration panel to order Ecuador’s President to interfere in its independent judiciary and block the ability of the indigenous rainforest communities to enforce their judgment in countries around the world. Chevron had stripped its assets from Ecuador to avoid paying the judgment.

Lawyers for the Ecuadorians say the arbitration panel does not have the authority to do what Chevron is seeking, and that in any event Ecuador’s government is obligated to ignore its orders given its own binding legal obligations under the Ecuador Constitution and various international treaties protecting the human rights of its citizens. See letter from Ecuadorian lawyer Pablo Fajardo.

The private arbitration system under the BIT has come under withering criticism for its conflicts of interest and lack of due process. Some commentators have likened the secret arbitration panel to a “kangaroo court” imbued with a pro-business culture. See this article.

The three arbitrators hearing the Chevron claims – all private lawyers who represent clients before other arbitration panels in the same treaty system – stand to personally reap millions of dollars in fees if they grant jurisdiction over the case, which in itself is a hotly contested issue given that Chevron left Ecuador five years before the U.S.-Ecuador BIT took effect.

In any event, it is clear that any “award” from the panel will be treated with skepticism in countries that observe the rule of law and will not be an obstacle to enforcement of the Ecuador judgment, said Amado. “It is our duty as international arbitration experts to prevent it from causing collateral damage to the international legal order that protects the human rights of all peoples worldwide,” he emphasized.

Chevron operated in Ecuador under the Texaco brand from 1964 to 1992.

A background document on Chevron’s arbitration strategy is available here.

Contact: Karen Hinton at 703-798-3109 or karen@hintoncommunications.com

SOURCE Amazon Defense Coalition

U.S. oil giant evading fine, critics say

New York, New York – Chevron is attempting to evade a US$18 billion judgment in Ecuador levied against its Texaco brand for environmental damage, according to law experts and the Andean Commission of Jurists.

After an eight-year trial, a three-judge appellate panel in Ecuador affirmed the $18 billion judgment earlier this year. The charges stem from the period 1964 to 1992, when reports said that Chevron dumped contaminated water into Amazon waterways, used unlined waste pits for sludge, never developed plans to contain or clean up its frequent oil spills, burned oil and natural gas flares, and destroyed documents.

In a letter to the United Nations, the Andean Commission said that it was “alarmed” by Chevron’s attempt to use a private investor arbitration to influence the outcome of private litigation with indigenous groups in Ecuador’s courts. The Commission accused the oil company of continuing to use “questionable litigation tactics to deny those injured any forum to seek justice and compensation for their injuries.”

Chevron shifted the environmental lawsuit from U.S. federal court to Ecuador in 2002 after promising to abide by any judgment there, subject only to narrow enforcement defenses that did not include international arbitration. The commissions say that Chevron stripped its assets from Ecuador to avoid paying the judgment.

Separately, indigenous rainforest communities have filed suit in Washington, D.C. before an international tribunal, seeking an order that would prevent Chevron from using the secret arbitration to violate their rights.

 Source: Autos. ca

SELVA Vida Sin Fronteras acknowledges Kevin Schafer’s important contribution towards protecting the highly endangered Amazon pink fresh water dolphin. Title photographs of our “The Amazon Pink Dolphin’s Voice” were taken by Mr. Schafer. 

Editorial: Selvavidasinfronteras.org

Selvavidasinfronteras.wordpress.com


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~ by FSVSF Admin on 15 February, 2012.

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