What happens when laws of two countries come into conflict? Here’s the scenario: A US trial court prohibits Ecuadorians who are members of 80 indigenous and farmer communities from collecting US$18 billion judgment against Chevron after an eight-year trial in Ecuador. The result: International legal footballing.
Sixteen international law scholars have asked a federal appeals court in New York to overturn the preliminary injunction issued by Judge Lewis A. Kaplan barring the plaintiffs from claiming US$18 billion from Chevron. The scholars said that Kaplan’s decision was a futile act and would likely antagonize the courts of other states. The injunction, according to the scholars, was an attempt to make exclusive the jurisdiction over the case to a US court without any legal authority to back it up.
The scholars asserted that Kaplan’s injunction is an unlawful attempt to intervene in the domestic legal affairs of Ecuador and asked the Second Circuit Court of Appeals to dissolve the injunction.
“The preliminary injunction directly intrudes into the external administration of Ecuadorian justice because recognition and enforcement of Ecuadorian judgments are issues each state is permitted to decide freely,” said Donald K. Anton of the Australian National University College of Law, Canberra, lead of the 16-group international law scholars.
The legal scholars wrote five amicus briefs, but submitted only one, stating that Kaplan’s action violates international and interferes in US foreign relations. They said it will potentially expose the US to legal claims from Ecuador that would be difficult to enforce. It also said that neither Kaplan nor Chevron has cited any statute, jurisprudence, rule or treaty that authorizes the injunction.
The Ecuadorians originally filed the case in a US federal court in 1993. In 2002, the case was shifted to Ecuador after Chevron’s request when it praised Ecuador’s courts transparency and fairness.
However, the Ecuadorian trial court found Chevron liable for dumping billions of gallons of toxic waste into the waters of the Amazon. The toxic waste poisoned vast lands and decimated lives of indigenous groups that suffered from oil-related diseases, even cancer, thus making Chevron culpable. Chevron operated in Ecuador from 1964 to 1992.
Because of such findings, Chevron fought back and attacked the Ecuadorian courts in 2004. It was then that Chevron convinced Kaplan to issue the preliminary injunction. It was granted even without a hearing in which evidence could be presented by the Ecuadorians and their legal counsel.
To make matters worse, Kaplan, while presiding over the case, seemed to mock the Ecuadorian indigenous groups as he gave comments from the bench. He also seemed to question the existence of the plaintiffs by saying “so-called” when referring to them in his written decisions. This led to the Ecuadorians requesting that Kaplan be removed from the case because they were clearly antagonized.
The Ecuadorians have rejected Kaplan’s jurisdiction and say they will seek lawful enforcement of their judgment in countries where Chevron has assets, said Karen Hinton, the spokesperson for the Ecuadorian plaintiffs.
A three-judge panel in New York is expected to hear argument on Kaplan’s injunction in late July or early August. An Ecuador appellate panel is also reviewing the Ecuador trial judge’s decision, which was challenged by both parties.
The international law scholars submitted one of five amicus briefs asking the appellate court to dissolve Kaplan’s injunction. Others were submitted by the government of Ecuador; Professor Bert Neuborne of New York University School of Law; Earth Rights International; and the Environmental Defender Law Center
