WikiLeaks' Assange seeks asylum at Ecuador embassy

WikiLeaks' Assange seeks asylum at Ecuador embassy

http://www.reuters.com/article/2012/06/19/us-ecuador-assange-idUSBRE85I1EI20120619

By Alexandra Valencia and Avril Ormsby  QUITO/LONDON | Tue Jun 19, 2012

(Reuters) - WikiLeaks' founder Julian Assange has taken refuge in Ecuador's embassy in London and asked for asylum, officials said on Tuesday, in a last-ditch bid to avoid extradition to Sweden over sex crime accusations.

Ecuadorean Foreign Minister Ricardo Patino said his country would weigh the request from the 40-year-old hacker, famous for leaking hundreds of thousands of U.S. diplomatic cables.

The appeal for protection was the latest twist in Assange's 18-month fight against being sent to Sweden, where he is wanted for questioning about allegations of rape and sexual assault made by two female former WikiLeaks volunteers.

The situation threatens to inflame tensions between the government of Rafael Correa, Ecuador's leftist and ardently anti-Washington president, and U.S. authorities, who accuse Assange of damaging its foreign relations with his leaks.

The Andean nation in 2010 invited Assange to seek residency there but quickly backed off the idea, accusing him of breaking U.S. laws.

Since his detention, Assange has mostly been living under strict bail conditions at the country mansion of a wealthy supporter in eastern England. His associates say that amounts to 540 days under house arrest without charge. Breach of bail conditions is potentially a criminal offence.

"While the department assesses Mr. Assange's application, Mr. Assange will remain at the embassy, under the protection of the Ecuadorean Government," the embassy said on its website.

Assange .. complaining that his home country of Australia had abandoned him and refused to defend him, according to a statement from Ecuador's Foreign Ministry.

According to Patino, Assange fears extradition "to a country where espionage and treason are punished with the death penalty". He appeared to be referring to the United States, because Sweden does not have the death penalty. Neither Sweden nor the United States has charged him with treason or spying.

The lawyer for the two female former WikiLeaks volunteers who made the complaints against Assange said he was not surprised by Assange's latest move but expected Ecuador to reject the asylum request.

Britain's Supreme Court last week said Assange could be extradited to Sweden in about two weeks' time, rejecting his argument that a European arrest warrant issued by Swedish prosecutors for his extradition was invalid.

The only recourse left to him through the courts is an appeal to the European Court of Human Rights.

Assange, who has not been charged with any offence in Sweden and denies any wrongdoing, has argued that the case is politically motivated because the release of documents on his website has angered the United States.

In 2010, WikiLeaks began releasing secret video footage and thousands of U.S. diplomatic cables, many of them about Iraq and Afghanistan, in the largest leak of classified documents in U.S. history.

The silver-haired Assange spent nine days in jail in Britain before being released on bail on December 16, 2010, after his supporters raised a surety of 200,000 pounds.

Anti-censorship campaigners who backed Assange at one stage included celebrities such as journalist John Pilger, film director Ken Loach and socialite Jemima Khan.

As part of his bail conditions, he had to abide by a curfew, report to police daily, and wear an electronic tag.

Wikileaks has faded from the headlines due to a dearth of scoops and a blockade by credit card companies that has made donations to the site almost impossible.

(Additional reporting by Patrick Lannin in Stockholm and Mark Hosenball in Washington DC; Writing by Brian Ellsworth and Daniel Wallis; Editing by Andrew Heavens)

Wikileaks Moves to Farce: Will Assange Live Out His Days in an Ecuadorian Embassy?

http://opiniojuris.org/2012/06/20/wikileaks-moves-to-farce-will-assange-live-out-his-days-in-the-ecuadorian-embassy/

by Peter Spiro   June 20, 2012

(DO – even assuming asylum is granted, the host government should agree to the passage of asylum-seeker out of the country)

Story here, and a lot of play on this morning’s BBC Newshour.  This is the second time in recent months that so-called “diplomatic asylum” has crept into the headlines, last with respect to Chen Guangcheng in China in May. See this earlier post, which links to an excellent Foreign Policy background piece on diplomatic asylum.

Unlike the Chen case, I doubt very much that the UK will agree to Assange’s safe passage out of the country on the way to Ecuador even if Ecuador grants him asylum (which itself seems like a stretch, insofar as the Swedish sex case against Assange hardly qualifies as political persecution, at least not as customarily conceived – but see the Embassy of Ecuador’s statement here).  So the best Assange can hope for is a long stay in non-country house quarters.

Speaking of Ecuador, is it trying to revive its imperial ambitions, in some postmodern way? See this engaging piece by Frank Jacobs, the master of cartographic stories, coincidentally out today in the NY Times (calling Duncan Hollis: interesting treaty tales therein)

Statement on Julian Assange

http://www.ecuadorembassyuk.org.uk/announcements/statement-on-julian-assange

June 19, 2012

The decision to consider Mr Assange’s application for protective asylum should in no way be interpreted as the Government of Ecuador interfering in the judicial processes of either the United Kingdom or Sweden

Assange's asylum bid a possible boon for Ecuador's Correa

http://news.yahoo.com/assanges-aslylum-bid-possible-boon-ecuadors-correa-231209020.html;_ylt=A2KLOzK7YuJPFHMAsIvQtDMD

By Alexander Martinez | AFP – Wed, Jun 20, 2012

Ecuador may well grant WikiLeaks founder Julian Assange's request for political asylum, analysts say, in a bid by President Rafael Correa to needle the United States and boost his image at home.

Analysts here say that coming to Assange's rescue might help Correa offset the storm of international criticism over his campaign against the opposition media in Ecuador.

The court sentenced three top executives of the Quito daily El Universal, and a former editorial page editor to three years in prison. Correa was awarded $40 million in damages.

Rights groups -- including Human Rights Watch, Reporters Without Borders and the Inter American Press Association -- called the ruling a blow to freedom of speech in Ecuador.

In February, Correa pardoned the executives and voided the monetary damages, but the criticism has barely subsided: according to the Ecuadoran NGO Fundamedios, the government's persecution of the opposition press continues.

Assange seeks asylum in Ecuador

http://blog.foreignpolicy.com/posts/2012/06/19/assange_seeks_asylum_in_ecuador

By Elias Groll   Tuesday, June 19, 2012

Assange has been in Britain for the better part of the past year while fighting the extradition order to Sweden, where he is wanted for questioning in connection with alleged sex crimes

Sweden, of course, does not have the death penalty on the books, but Assange has long maintained that the extradition order is part of a conspiracy by the American government to have him extradited to the United States in order to face espionage charges, a crime for which he could face the death penalty. Swedish prosecutors have not charged Assange with a crime.

The choice to seek asylum in Ecuador may seem surprising, but Ecuador's president, Rafael Correa, has closely aligned himself with Hugo Chavez's Venezuela and Evo Morales' Bolivia, and like his South American compatriots, Correa preaches a political doctrine willing to crack down on press freedoms and political rights to preserve his particular brand of socialism.  Additionally, Correa and Assange have something of a personal history-Assange interviewed Correa this year on his RT talk show, and Ecuador offered the Australian hacker-cum-provocateur residence in 2010.

Complicating matters, Ecuador has signed extradition treaties with both the United States and the European Union, but given Assange's decision to pursue asylum at the Ecuadorian embassy in London, it would appear unlikely that Ecuador will enforce those agreements

Julian Assange's right to asylum

http://www.guardian.co.uk/commentisfree/2012/jun/20/julian-assange-right-asylum

Glenn Greenwald   Wednesday 20 June 2012

Given the travesty that is American justice, WikiLeaks' founder is entitled to seek asylum and well-advised to fear extradition

If one asks current or former WikiLeaks associates what their greatest fear is, almost none cites prosecution by their own country. Most trust their own nation's justice system to recognize that they have committed no crime. The primary fear is being turned over to the US.  That is the crucial context for understanding Julian Assange's 16-month fight to avoid extradition to Sweden, a fight that led him to seek asylum, Tuesday, in the London Embassy of Ecuador.

The evidence that the US seeks to prosecute and extradite Assange is substantial.  There is no question that the Obama justice department has convened an active grand jury to investigate whether WikiLeaks violated the draconian Espionage Act of 1917. Key senators from President Obama's party, including Senate intelligence committee chairwoman Dianne Feinstein, have publicly called for his prosecution under that statute. A leaked email from the security firm Stratfor – hardly a dispositive source, but still probative – indicated that a sealed indictment has already been obtained against him. Prominent American figures in both parties have demanded Assange's lifelong imprisonment, called him a terrorist, and even advocated his assassination.

For several reasons, Assange has long feared that the US would be able to coerce Sweden into handing him over far more easily than if he were in Britain. For one, smaller countries such as Sweden are generally more susceptible to American pressure and bullying. 

For another, that country has a disturbing history of lawlessly handing over suspects to the US. A 2006 UN ruling found Sweden in violation of the global ban on torture for helping the CIA render two suspected terrorists to Egypt, where they were brutally tortured (both individuals, asylum-seekers in Sweden, were ultimately found to be innocent of any connection to terrorism and received a monetary settlement from the Swedish government). 

Perhaps most disturbingly of all, Swedish law permits extreme levels of secrecy in judicial proceedings and oppressive pre-trial conditions, enabling any Swedish-US transactions concerning Assange to be conducted beyond public scrutiny. Ironically, even the US State Department condemned Sweden's "restrictive conditions for prisoners held in pretrial custody", including severe restrictions on their communications with the outside world.

Assange's fear of ending up in the clutches of the US is plainly rational and well-grounded. One need only look at the treatment over the last decade of foreign nationals accused of harming American national security to know that's true; such individuals are still routinely imprisoned for lengthy periods without any charges or due process. Or consider the treatment of Bradley Manning, accused of leaking to WikiLeaks: a formal UN investigation found that his pre-trial conditions of severe solitary confinement were "cruel, inhuman and degrading", and he now faces capital charges of aiding al-Qaida. The Obama administration's unprecedented obsession with persecuting whistleblowers and preventing transparency – what even generally supportive, liberal magazines call "Obama's war on whistleblowers" – makes those concerns all the more valid.

No responsible person should have formed a judgment one way or the other as to whether Assange is guilty of anything in Sweden.  He has not even been charged, let alone tried or convicted, of sexual assault, and he is entitled to a presumption of innocence. The accusations made against him are serious ones, and deserve to be taken seriously and accorded a fair and legal resolution.

But the WikiLeaks founder, like everyone else, is fully entitled to invoke all of his legal rights, and it's profoundly reckless and irresponsible to suggest, as some have, that he has done anything wrong by doing so. Seeking asylum on the grounds of claimed human rights violations is a longstanding and well-recognized right in international law. It is unseemly, at best, to insist that he forego his rights in order to herd him as quickly as possible to Sweden.  

Assange is not a fugitive and has not fled.  Everyone knows where he is.  If Ecuador rejects his asylum request, he will be right back in the hands of British authorities, who will presumably extradite him to Sweden without delay. At every step of the process, he has adhered to, rather than violated, the rule of law. His asylum request of yesterday is no exception.

Julian Assange has sparked intense personal animosity, especially in media circles – a revealing irony, given that he has helped to bring about more transparency and generated more newsworthy scoops than all media outlets combined over the last several years. That animosity often leads media commentators to toss aside their professed beliefs and principles out of an eagerness to see him shamed or punished.

But ego clashes and media personality conflicts are pitifully trivial when weighed against what is at stake in this case: both for Assange personally and for the greater cause of transparency. If he's guilty of any crimes in Sweden, he should be held to account. But until then, he has every right to invoke the legal protections available to everyone else. Even more so, as a foreign national accused of harming US national security, he has every reason to want to avoid ending up in the travesty known as the American judicial system

back and forth on "the other side of Chevron"

http://opiniojuris.org/2012/03/27/doug-cassel-responds-to-kevin-jon-heller/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+opiniojurisfeed+%28Opinio+Juris%29&utm_content=Google+Reader

Chevron in Ecuador: Doug Cassel Responds to Kevin Jon Heller

by Doug Cassel , March 27th, 2012

[Doug Cassel is Professor of Law at Notre Dame Law School]

Heller’s reply misses the point of my post, Suing Chevron in Ecuador: Do the Ends Justify the Means? I did not ask whether Chevron is an “innocent victim.” I asked whether the ends pursued by plaintiffs’ lawyers (environmental remediation) justify their means (making covert payments to the court’s “independent” expert from their “secret account,” writing his report and then lying about it, meeting secretly with the judge in an abandoned warehouse, etc.).

I answered, “No.” Human rights lawyers cannot vindicate rights by trashing the rights to due process and fair trial. Doing so undermines our moral and professional credibility.

I hold that view as a career human rights lawyer, not (in Heller’s ad hominem) as an “advocate for Chevron.” My post linked to my longer open letter, which made explicit that I billed Chevron for representing it on an amicus brief, but not for the time entailed in writing the open letter.

Heller’s “other side of Chevron” consists of a series of erroneous, tendentious or unsupported accusations, based almost entirely on press statements by plaintiffs’ PR operatives. In the order he raises them:

• Chevron did not lie about environmental damage “documented by its own internal audits.” The audits were done in 1992 and 1993, before Chevron’s predecessor company, TexPet, conducted tens of millions of dollars in remediation during 1995 to 1998, and well before Chevron (which never operated in Ecuador) bought TexPet in 2001. Plaintiffs’ own experts later conceded that significant contamination has not spread beyond the oil facilities.
• Chevron did not “fraudulently” alter a report to its scientific consultants in order to hide “dishonest sampling practices.” This claim was rejected as “baseless” and “fallacious” in an Open Response by the consultants, who include professors at Rice University and the University of California Davis. The allegation, they replied, shows that plaintiffs’ lawyers have “no understanding of how environmental investigations are properly done.”
• Chevron did not use a “secret lab” to “hide dirty samples.” Analyses from what plaintiffs themselves call the “NewFields lab” were submitted to the Ecuadorian court, in reports prominently labeled as “NewFields,” in dozens of filings beginning in 2005.
• Heller notes that two Chevron lawyers were indicted in Ecuador for allegedly false claims about TexPet’s remediation program. He seems not to know that the charges were later dismissed. Nor does he note that the indictments came only after President Correa met with plaintiffs’ lawyers and announced publicly that anyone who signed off on the remediation should be prosecuted. Heller is also (understandably) unaware of an email between plaintiffs’ lawyers, obtained under court order, warning that if Chevron lawyers “get a hold of this, it’s gonna hurt us. It’s pretty much irrefutable evidence of us collaborating with the [public prosecutor] to get [the two lawyers] convicted.” As a U.S. court concluded, plaintiffs “attempt[ed] to procure criminal prosecutions for the purpose of extracting a settlement [from Chevron].”
• Chevron’s consultants did not “misrepresent” their studies. The letter from “leading scientists” cited by Heller was published in 2005 – before the principal studies were completed, andbefore both plaintiffs’ and Chevron’s experts concluded that no significant contamination had spread beyond the oil facilities. The 2005 letter recommended that Chevron’s consultants submit their reports to peer review by publication in scientific journals; they have since done so (1, 2, 3). The letter also recommended that oil companies do environmental health impact assessments. Chevron concurs. Since 2007 its Environmental, Social and Health Impact Assessment process “requires that all new capital projects be evaluated for potential environmental, social and health impacts.”
• Heller asserts that Chevron “tried to bribe the Ecuadorian government into quashing the case.” One might expect that such an unqualified accusation would be supported by evidence. Heller cites only a Huffington Post article – authored by an Amazon Watch activist – which, in turn, cites only a press release by plaintiffs’ PR office which, in turn, cites (a) the same Huffington Post article, (b) “anonymous” Ecuadorian officials, and (c) Chevron meetings with Ecuadorian officials. The Ecuadorian official in question rejects the accusation. Chevron correctly points out that there is nothing wrong – quite the contrary – with the company and the government meeting to engage in a constructive dialogue. The company categorically denies any attempted bribery.
• Chevron did not threaten the judge with jail time “if he did not rule in favor of the company.” Chevron did inform the judge of evidence of criminal conduct by plaintiffs’ lawyers and reminded him of his obligation under article 292 of Ecuador’s criminal code, enforceable by jail time, to report crimes to an investigating judge.
• Chevron did not try to entrap a judge into taking bribes and then pay off the individual who offered the bribe. As plaintiffs’ own lawyer on this issue (a former Assistant U.S. Attorney) informed his colleagues: “Chevron is telling the truth when they claim … not to have even known about these conversations until [the next month].”
• A Chevron attorney was indeed sanctioned for discovery excesses in one U.S. case. But Chevron has not been sanctioned for “vexatious lawsuits.” While its suit for malicious prosecution against a former attorney for plaintiffs was dismissed, the suit was understandable: in the underlying case against Chevron, the court sanctioned plaintiffs’ attorney for a Rule 11 violation and dismissed his clients’ claims because of their “deliberately deceptive practices.” (1, 2)
•  

In short, the “other side” of Chevron turns out to be no more than a pastiche of press releases, hastily and uncritically assembled. Surely the readers of Opinio Juris deserve better.

Ecuador municipal court denied the international arbitration (PCA) decision

http://jurist.org/paperchase/2012/02/ecuador-court-rejects-injunction-on-chevron-fine.php

Ecuador court rejects injunction on Chevron fine
Julia Zebley, Feb. 21, 2012

Ecuadorian municipal court denied the decision by PCA (international arbitration decision)

The Provincial Court of Justice of Sucumbios in Lago Agrio, Ecuador denied an arbitration decision [interim order, PDF] by The Hague Permanent Court of Arbitration(PCA) [official website; case materials] on Friday, forwarding an appeal by Chevron[corporate website] to the Supreme Court of Ecuador.

The (PCA arbitration) decision intended to temporarily enjoin the recently upheld $18 billion fine from any international efforts of collection. The interim injunction (by the PCA) would last until the PCA makes its final arbitration decision.

The Provincial Court of (Ecuador) Justice rejected this approach, stating that Ecuadorian citizens' human rights supersede international trade law [Ecuador Times report]. They also allowed Chevron's appeal [JURIST report] to ascend to the Supreme Court of Ecuador.

The injunction (by PCA) is supposed to be upheld by all countries that are signatories to The Hague Convention, but plaintiffs insist they will continue to pursue their collection efforts in other courts, including the US Second Circuit Court of Appeals [JURIST report].

Damages were initially awarded last February by the Provincial Court of Justice of Sucumbios, which found that Texaco, acquired by Chevron in 2001, polluted large areas of the country's rain forest and the Amazon river. Chevron has argued that the damages award violates Ecuador's constitution because the court failed to correct or punish alleged fraud and corruption committed by plaintiffs' lawyers. Also, Chevron contended that because it inherited the case from its takeover of Texaco, an oil company who was released from such liability by Ecuador in the 1990s, it too should be released from liability. The judgment was upheld in January[JURIST report] by a three-judge panel of the Provincial Court of Justice of Sucumbios. Though the fine was initially set at $8.6 billion [JURIST report], it was more than doubled for Chevron's refusal to pay "moral reparations" to the Ecuadorian government, as required by the original ruling. The Amazon Defense Coalition[advocacy website], the Ecuadorian plaintiffs, have said that the first judgment was a reaffirmation of how Chevron's greed and criminal misconduct in polluting the region has led to death and disease.

Chevron Ecuador Dispute Heats Up

http://opiniojuris.org/2012/01/27/chevron-ecuador-dispute-heats-up/

Chevron Ecuador Dispute Heats Up

by Roger Alford , January 27th, 2012

This week was a blockbuster one in the ongoing battle between Chevron and Ecuador.

arbitral tribunal – Chevron v. Ecuador   

On Wednesday, the arbitral tribunal adjudicating Chevron’s BIT claim issued an Interim Award ordering Ecuador “to take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within or without Ecuador of any judgment against [Chevron] in the Lago Agrio Case.”

The tribunal was at pains to emphasize the interim award was final and binding under Article 32 of the UNCITRAL Rules, which means that Chevron could pursue recognition and enforcement of the award in jurisdictions around the world. It could do so offensively by seeking declaratory relief in Ecuador (or elsewhere), or defensively in response to an attempt by the Ecuador plaintiffs to seek enforcement of the Ecuador judgment. Of course, the Interim Award is only binding on Ecuador and Chevron, (DO- i.e. on parties to the tribunal) so it is not clear what a domestic court outside Ecuador would do with an award imposing injunctive relief on Ecuador.

2d Cir. Chevron v. Naranjo (residents of the Ecuadorian Amazon)

Meanwhile, yesterday the Second Circuit issued its long-awaited opinion in Chevron v. Naranjo. The Second Circuit’s crucial holding was that New York’s Uniform Foreign Money-Judgments Recognition Act precludes declaratory injunctive relief by a foreign judgment debtor. “There is … no legal basis for the injunction that Chevron seeks, and, on these facts, there will be no such basis until judgment-creditors affirmatively seek to enforce their judgment in a court governed by New York or similar law.”

The Second Circuit had little sympathy for Chevron’s attempt to pursue an anti-enforcement injunction, particularly given the comity concerns at stake.

“[W]hen a court in one country attempts to preclude the courts of every other nation from ever considering the effect of that foreign judgment, the comity concerns become far greater. In such an instance, the court risks disrespecting the legal system not only of the country in which the judgment was issued, but also those of other countries, who are inherently assumed insufficiently trustworthy to recognize what is asserted to be the extreme incapacity of the legal system from which it emanates. The court presuming to issue such an injunction sets itself up as the definitive international arbiter of the fairness and integrity of the world’s legal systems.”

But at the same time, the Second Circuit emphasized that it expressed “no views on the merits of the parties’ various charges and counter-charges regarding the Ecuadorian legal system and their adversaries’ conduct of this litigation, which may be addressed as relevant in other litigation before the district court or elsewhere.” It also avoided any decision with respect to the underlying RICO claims that Chevron has filed against the Ecuador plaintiffs and their lawyers, focusing simply on the improper procedural device that Chevron sought to employ to enjoin enforcement of the Lago Agrio judgment abroad.

Municipal court in Ecuador, the Lago Agrio Case (the indigenous residents of the Lago Agrio field v. Chevron)

Where does the case go from here? In Ecuador, Chevron has appealed to Ecuador’s highest court to review the case. No word yet as to whether Chevron will seek to have the arbitral tribunal’s Interim Award recognized and enforced in Ecuador. The arbitral tribunal is scheduled to hold hearings on February 11-12 to determine what steps Ecuador is taking to prevent enforcement of the Lago Agrio judgment.

As for the Ecuador plaintiffs’ efforts to enforce the judgment, there is no indication that Chevron will post an appeal bond, which means that the Ecuador plaintiffs are free to pursue enforcement anywhere in the world where Chevron has assets.

It appears that the Ecuador plaintiffs will not seek to have the judgment enforced within the United States. Ecuador Plaintiffs’ lawyer James Tyrrell stated yesterday that “The Ecuadorean plaintiffs are not coming to New York to enforce this judgment.” Given the locus of Chevron’s assets, it is not obvious why the plaintiffs have adopted this strategy, unless they have reason to believe that there is a high probability that the judgment would not be enforced.

There is, of course, the option of pursuing enforcement abroad. If the Invictus Memo is reliable, the Ecuador plaintiffs have identified twenty-seven nations where Chevron has substantial activities, including countries that are friendly with Ecuador, such as Colombia and Venezuela. That memo candidly states the ultimate end game strategy for the Ecuador plaintiffs:

“After approximately seventeen total years of litigation in the United States and Ecuador, the case against Chevron now enters its most critical, multi-faceted, and labor intensive…. With the ultimate goal of effecting and swift and favorable settlement, the strategy of the Plaintiffs’ Team will incorporate the following components: … managing the public relations impact of Chevron’s manipulation of the Cabrera narrative … [and] identifying jurisdictions globally that are most hospitable to an enforcement action.”

BIT

The United States and Ecuador have signed a bilateral investment treaty that guarantees various protections for investors from the other state.  Pursuant to this BIT, U.S. nationals are protected from government misconduct in Ecuador and Ecuadorian nationals are protected from government misconduct in the U.S.  The BIT gives foreign investors third party beneficiary rights to bring an arbitration claim against Ecuador for violations of international law.  Among the allegations that Chevron has raised is that Ecuador violated treaty provisions that guarantee fair and equitable treatment, which includes fundamental due process protections.

So basically, Ecuador promised the United States in a treaty that it would treat American nationals fairly and equitably and afford them fundamental due process, and Chevron invoked its third party beneficiary rights under the treaty to bring an arbitration claim against Ecuador for alleged violations of the treaty.

1.29.2012 , at 9:41 pm EST , by International Lawyer

Duy:

Further to Mr Alford:

The New York Convention (properly, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards) requires Contracting States to recognize an agreement to submit disputes to arbitration. It specifically requires that, if the parties have agreed to settle a dispute by arbitration, the courts of a Contracting State must (with limited exceptions) refer it to arbitration and must (with limited exceptions) enforce the arbitral award.

As a result, the law in Contracting States (which include Ecuador and virtually every other country) is the reverse of what you intuit: If the parties to a dispute have agreed to settle it by arbitration, the courts are not to interfere with the arbitration and must (with limited exceptions) give effect to the arbitral award.

For commercial disputers in most countries in the Americas, there is a Panama Convention to a similar effect.

I have not studied the BIT or the proceedings in this case, so the New York Convention may not strictly apply. But, as a general rule, arbitration is strongly favored over litigation (both in law and in practice) in international transactions.

This is a very important — really, critical — aspect of international commerce. It allows parties some comfort that their dispute will be decided by an impartial and (if they choose) expert panel of judges

Chevron’s Explosive Filing on Collusion Between Plaintiffs and the Ecuadorian Court-Appointed Expert

http://opiniojuris.org/2010/08/04/chevron’s-explosive-filing-on-collusion-between-plaintiffs-and-ecuadorian-court-appointed-expert/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed:+opiniojurisfeed+(Opinio+Juris)

by Roger Alford

The ongoing saga regarding Chevron’s legal travails in Ecuador took an interesting twist this week. As I reported earlier, Chevron has secured key outtakes of the movie Crude that appeared to show alarming collusion between the plaintiff lawyers and the Court-appointed expert. According topleadings filed yesterday pursuant to 28 U.S.C. 1782, the outtakes include some amazing communications caught on tape. The purpose of the filing was to secure the court’s assistance with additional discovery of Crude outtakes to facilitate the arbitration and secure preservation of all relevant evidence “related to the fraudulent ‘Global Expert’ scheme as documented in the Crude documentary and the outtakes produced to date.” (p. 21).

The film outtakes include some choice excerpts of a March 3, 2007 meeting that included plaintiffs’ counsel (Steve Donziger and Pablo Fajardo), plaintiffs’ experts (Charlie Champ, Ann Maest, Dick Kamp) and the soon-to-be court-appointed expert, Richard Cabrera. The apparent purpose of the meeting between the plaintiffs and Cabrera was to develop a plan for the drafting of the independent expert’s report that Cabrera would write as Special Master for submission to the Ecuadorian court. According to Chevron’s filing, the tapes include some pretty damning evidence.

For example, Plaintiff lawyer Fajardo tells the assembled group—which includes the soon-to-be court-appointed expert Richard Cabrera–that the court-appointed expert is going to “sign the report and review it. But all of us [the plaintiff lawyers and experts] … have to contribute to the report.” Toward the end of the meeting Donziger brags: “We could jack this thing up to $30 billion … in one day.” (p. 2). Fajardo says that the team must “[m]ake certain that the expert constantly coordinates with the plaintiffs’ technical and legal team” and the plaintiffs’ team must “support the [court-appointed] expert in writing the report.” (p. 8). “Our entire technical team … of experts, scientists attorneys, political scientists, … will contribute to that report—in other words—you see … the work isn’t going to be the expert’s.” (p. 9).

In clarifying what role the plaintiffs and defense counsel will have in drafting the court-appointed expert report, Fajardo confirms that it will be written “together” with the plaintiffs. The idea of Chevron having a role in drafting the court-appointed report was met with collective laughter. (p. 9). Donziger proposes the plaintiffs establish a “work committee” to present a “draft plan” for the report and then says to the soon-to-be court-appointed expert, Richard Cabrera, “and Richard, of course you really have to be comfortable with all that.” (p. 11).

The next day, in a lunch meeting with just the plaintiffs’ lawyers and plaintiffs’ experts, one expert, Charlie Kamp, said “Having the perito [Cabrera] there yesterday in retrospect … that was bizarre.” Donziger replies, “Don’t talk about it” and tells the camera crew “And that’s off the record.” (p. 12). In responding to concerns from their own experts that there was not evidence of groundwater contamination, Donziger replies, “This is all for the Court just a bunch of smoke and mirrors and bullshit.” (p. 12). That’s right, Donziger is caught on tape saying that the evidence he is gathering for inclusion in the court-appointed expert report about groundwater contamination is just smoke and mirrors and bullshit.

I would rarely advise our readers to read a court filing they don’t have to, especially during the summer recess. But this one is explosive

=====

http://opiniojuris.org/2010/08/06/donziger-just-a-bunch-of-smoke-and-mirrors-and-bullshit/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed:+opiniojurisfeed+(Opinio+Juris)

Donziger: “Just a Bunch of Smoke and Mirrors and Bullshit”

Posted: 06 Aug 2010 10:15 AM PDT

by Roger Alford

As discussed here, one of the key arguments that the Ecuador plaintiffs are making in response to Chevron’s Motion is that the damaging quotes are being taken out of context. Without question one of the most damning excerpts is when lead plaintiffs’ lawyer Steve Donziger is quoted as saying that “Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit. It really is.”

Plaintiffs’ spokesman Karen Hinton told me this morning that Donziger’s comment about “smoke and mirrors and bullshit” was a reference to Chevron’s evidence, not their own. She is quoted in an American Lawyer article today saying the same thing, that “’He was talking about Chevron using smoke and mirrors.’ Chevron is ‘twisting it and manipulating it.’”

I have now received the transcripts of the DVD from Karen Hinton and I have posted them here and here. Read in context, I find it almost impossible to interpret Donziger’s quote about “smoke and mirrors” as a reference to Chevron’s evidence.

Here is Steve Donziger’s “smoke and mirrors and bullshit” quote included in the context of a conversation between Donziger and plaintiffs’ technical experts Dave Kamp, Ann Maest, and Charlie Champ (pages 8-11 of Transcript 2):

...

...

Chevron’s Motion Transcript 2 -

So there you have it. Anyone else besides Karen Hinton want to make the argument that this is a reference to Chevron’s evidence?

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Chevron v. Ecuador

WSL July 31, 2008,

Jungle Litigation: A Look at Chevron’s Ecuadorian Court Battle . . .

By Dan Slater

Since we’ve been doing so much globe-trotting today, let’s keep it going and pay a visit to South America. TheAmerican Lawyer just put out a story that takes us “20 miles south of the jungle territory patrolled by Colombian leftist guerrillas” to the “ramshackle” Ecuadorean city ofLago Agrio. It is there, reports AmLaw, “in a dilapidated courthouse,” that a Jones Day team led by Thomas Cullen Jr. is representing Chevron in its battle with 30,000 residents of Ecuador’s Amazon Basin, known as theAmazon Defense Coalition, whose Web address is “www.texacotoxico.org.”

The ADC is represented by by Philadelphia plaintiffs firmKohn Swift & Graf, and a solo practitioner in Ecuador, Pablo Fajardo, who was profiled in this Vanity Fair article.

The group reportedly hopes to hold Chevron accountable for alleged environmental abuses committed by Texaco, which Chevron bought for $35 billion in 2001. Texaco spent 30 years in the region, pumping billions of gallons of oil hundreds of miles west over the Andes to Ecuador’s port cities for shipment to the U.S. (Click here for a past AmLaw feature on the case — Aguinda v. Texaco.)

But the reason for AmLaw’s follow-up, apparently, is a recent Newsweek piece about the case entitled “A $16 Billion Problem.” (That’s how much Chevron might have to cough up.) “The ultimate issue here is Ecuador has mistreated a U.S. company,” Newsweek quotes one unidentified Chevron lobbyist as saying. “We can’t let little countries screw around with big companies like this — companies that have made big investments around the world.”

Newsweek reports that after plaintiffs attorney Steven Donziger, of counsel at New York’sPerlmutter & Gimpel, made a presentation to Barack Obama several years ago, the senator co-wrote a letter with Democratic senator Patrick Leahy to U.S. Trade Representative Rob Portman, urging Portman to allow the plaintiffs to have “their day in court.” An Obama spokesperson confirmed to Newsweek that Obama’s position on the matter remains the same

WSJ , SEPTEMBER 15, 2008 ,

Chevron Lawyers Indicted in Connection with Ecuador Case

By Dan Slater

In July we told you about some jungle litigation in Ecuador that takes us, according to an AmLaw report, “20 miles south of the jungle territory patrolled by Colombian leftist guerrillas” to the “ramshackle” city of Lago Agrio. Some 30,000 residents of Ecuador’s Amazon Basin, known collectively as the Amazon Defense Coalition, hopes to hold Chevron accountable for alleged environmental abuses committed by Texaco, which Chevron bought in 2001.

On Friday, reports AmLaw, Chevron’s legal worries in Ecuador grew when in-house lawyer Ricardo Reis Veiga and outside counsel Rodrigo Perez Pallares were accused of being part of a conspiracy to fraudulently certify that Texaco had completed the cleanup of more than 100 mines in the Ecuadorean rainforest in the 1990s. The government released Chevron from liability on the basis of those certifications.

“The politically motivated indictments mark a renewal of the Ecuadorean state’s attempts to disavow contractual obligations owed to Chevron from contracts signed in 1995 and 1998,” Chevron said in a statement. “Recent events in Ecuador leave no doubt that there is improper collaboration between the government and plaintiffs lawyers [in the civil case]. ”

A lawyer for the Republic of Ecuador, C. MacNeil Mitchell of Winston & Strawn, told The Am Law Daily that the government is not involved in the environmental tort litigation — and that Chevron’s attempt to link the indictments to the environmental suit is part of the company’s strategy to discredit the Ecuadorean courts.

“Chevron isn’t stupid,” said Mitchell. “We may look at individual things they do and say, ‘That doesn’t make sense.’ But they have an overall game plan. They know there’s going to be a big judgment against them in Ecuador. They want to avoid paying it. One way to do that is by saying the Ecuadorean system is corrupt and their rights were trampled.”

New York lawyer Stephen Donziger and Philadelphia plaintiffs firm Kohn Swift & Graf are handling the litigation for the ADC. A Jones Day team led by Thomas Cullen Jr. is repping Chevron in Ecuador.

WSJ , JULY 20, 2009 ,

Chevron Looks For Home-Field Advantage In Ecuador Fight

By Amir Efrati

What’s the strategy of a company when it’s pretty sure it’s going to lose a high-profile lawsuit overseas? That’s the dilemma facing Chevron in its long-running legal battle in Ecuador, where residents of the country’s oil-producing Amazonian rainforest are suing the oil giant for environmental contamination of their land. (LB coverage here and here.)

An expert appointed by the Ecuadorian court has recommended the judge award the plaintiffs, who filed suit in 1993, $27 billion in damages. That would be the biggest environment judgment against an oil firm to date. Of course, after judgment comes the hard part: collection.

However, according to today’s WSJ, the Ecuadorians can’t seize any assets from Chevron in their country because the original defendant in the case, Texaco, which Chevron bought in 2001, stopped doing business there in 1990. So they’ll have to take the fight to the U.S.

Chevron, which expects to lose the case in Ecuador, has been telling its shareholders it doesn’t expect to be forced to pay any judgment. “We’re not paying and we’re going to fight this for years if not decades into the future,” the company told WSJ.

The company’s legal strategy: convince a U.S. judge it didn’t get a fair trial in Ecuador, where the country’s president supported the plaintiffs. Legal experts say that won’t be easy, according to WSJ. Complicating matters is the fact that the suit was initially filed in the U.S. and Texaco fought hard to move it to Ecuador.

Some shareholders have urged the company to settle, but the company told WSJ it won’t be “bullied.”

WSJ , SEPTEMBER 1, 2009 ,

Chevron, Through Videos, Alleges Corruption in Ecuador Case

When Chevron Corp. landed videos purportedly showing an Ecuadorean judge saying he’d already decided to rule against the company in a long-running environmental legal battle, it didn’t just use the videos to try to disqualify the judge, it went viral. The company recently put the videos up on its Web site, on YouTube, and made them the centerpiece of a public-relations push.

Will it pay off? Hard to tell. But for now, the videos have put the judge and the plaintiffs on the defensive. In an interview with the WSJ, Judge Juan Núñez denied making the statements but said he had met with the two businessmen who appear in the video. “I have never said that I will dictate a ruling in favor nor against Chevron nor the plaintiffs,” Núñez said. “What I have said is that the sentence could be released in October or November or as late as January 2010.” Click here for a story from the American Lawyer; here for a story from the Washington Post.

The backstory: A group of indigenous residents of the country’s Amazon basin claims that Chevron should pay for pollution caused by the oil operations of Texaco, which Chevron acquired in 2001. Chevron says Ecuador released it from liabilities after a clean-up by the company.

The company claims the two recordings of a total of three meetings show an alleged representative of the country’s ruling party seeking $3 million in bribes in return for handing out “environmental remediation contracts” to two businessmen after a verdict is handed down by Judge Núñez later this year. Of that sum, one million would go to Núñez, one million to “the presidency” and another one million to plaintiffs in the case.

According to Chevron, the recordings were made between May and June of this year. The judge’s statements show bias and he should be “disqualified from the case,” Charles James, a Chevron executive vice president, said in an interview.

The judge is still accepting evidence in the case. On the video, he agrees with the two men when they state Chevron is culpable and he will act in October or November.

Alexis Mera, subsecretary for judicial affairs in the office of President Rafael Correa, raised questions about Chevron’s role in the videos, and said the government has asked the office of the prosecutor to review them. “Chevron, through its lawyers, is benefiting from a crime of intercepting conversations without authorization, with the aim of damaging Ecuador,” Mr. Mera said.

“The lawyers don’t have anything to do with the alleged video or bribe,” said Julio Prieto, a lawyer for the plaintiffs in Ecuador. “I believe that it is a forged video and also fabricated to seek to implicate the government in acts against the law.”

The company said it has taken “reasonable steps” to verify the videos are legitimate.

The Wall Street Journal , September 24, 2009 Thursday ,

Corporate News: Chevron Files Suit Against Ecuador --- Looking to Protect Itself in Longtime Battle, Oil Giant Seeks Aid Through Trade Pact

By Ben Casselman and Angel Gonzalez

Chevron Corp. is stepping up its offensive in its long-running legal battle in Ecuador, suing Ecuador's government under international trade law.

Chevron is the defendant in a multibillion-dollar lawsuit that seeks to hold the company responsible for environmental damage allegedly caused by Texaco Inc., which Chevron bought in 2001. Chevron has denied the allegations.

Seeking to protect itself from what it says is likely to be an adverse ruling in Ecuador, the California-based oil giant said Wednesday it had filed suit under the terms of a 1997 trade pact between the U.S. and Ecuador. The suit amounts to a request for arbitration through a process set up by the United Nations Commission on International Trade Law to adjudicate disagreements.

The arbitration process is separate from the original lawsuit, which will continue. But under its pact with the U.S., Ecuador must accept the arbitrators' rulings as binding under international law.

In its filing, Chevron argues Ecuador's government is responsible for any environmental damage and should pay any penalties assessed in the lawsuit, which could total $27 billion, according to a court-appointed expert. Chevron also asks that arbitrators force Ecuador's government to pay the company's legal fees and to award "moral damages" due to the government's alleged interference in the case, intimidation of Chevron representatives and other "outrageous and illegal conduct."

The move seeks to capitalize on the release last month of videos that Chevron says reveal a bribery scheme possibly involving the Ecuadorean judge who has been overseeing the lawsuit. Ecuador says it is investigating Chevron's allegations, as well as any potential involvement by Chevron in the scheme. The judge, who has sought to recuse himself from the case, has denied any wrongdoing, and the videos don't show him accepting or soliciting a bribe. On Tuesday, a local court ruled that the judge's withdrawal petition was "unfounded" and ordered him to stay in the case.

Chevron believes the controversy has given new weight to its claim that it cannot get a fair trial in Ecuador.

"We have believed for some time that it would be impossible for Chevron to get a fair hearing in Ecuador," Chevron General Counsel R. Hewitt Pate said.

Eric Bloom, a U.S. attorney representing Ecuador in the dispute, said Chevron has been trying to discredit Ecuador's judicial system for years, and he questioned the videos' authenticity.

"Chevron either got very, very lucky on the eve of a verdict and actually tripped across a legitimate concern, or they helped to stage-manage a fictitious event," Mr. Bloom said. "Both possibilities have to be investigated."

Chevron has denied doctoring the videos or participating in the scheme and has said it took steps to verify the videos' authenticity.

Steven Donziger, an attorney for the plaintiffs in the original lawsuit, said the filing will have "minimal impact" on his case, but he said it is a sign Chevron is becoming desperate.

The plaintiffs in the lawsuit couldn't immediately be reached for comment.

Chevron's decision to seek international arbitration is the latest example of the company's increasingly aggressive strategy in the case, which includes a Web site to rebut plaintiffs' claims and an effort to lobby Congress to revoke Ecuador's trade privileges because of the government's alleged interference in the dispute.

Since Chevron has almost no assets in Ecuador, the plaintiffs will have to seek enforcement of any ruling in their favor in the U.S. or another country where Chevron operates.

Separately, the international arbitration process could take years. In its arbitration filing, Chevron claims that by allowing the lawsuit to go forward, the Ecuadorean government is violating a 1998 agreement that released the U.S. company from environmental liability in return for a $40 million cleanup paid for by Texaco.

The plaintiffs, a group of Ecuadorean residents, argue their case has nothing to do with the Ecuadorean government, so the agreement doesn't apply to their lawsuit. Ecuador's government says it has no control over the judicial process, although Chevron has argued the Ecuadorean judiciary is heavily influenced by President Rafael Correa.

If arbitrators reject Chevron's argument, it could make it harder for the company to fight enforcement of an adverse ruling. But if arbitrators agree that Chevron has no liability, legal experts said, it will be very difficult for plaintiffs to collect on any damages outside Ecuador.

Corporations have increasingly turned to international arbitrators in recent years to resolve disputes with governments. Companies often see the arbitration process as fairer than local courts.

Opinio Juris, September 25th, 2009 ,

Chevron Strikes Back Against Ecuador

by Julian Ku

I’ve only been vaguely aware of the ongoing battle between Chevron and Ecuador. Ecuador courts are currently entertaining an enormous lawsuit against Chevron, but Chevron has really taken the offensive by releasing videos suggesting that the Ecuadorian judge has been accepting bribes. And in its latest salvo, Chevron has filed an investor-state claim under the United States- Ecuador Bilateral Investment Treaty (I think it is 1993 but the WSJ says there is a 1997 one). In any event, it is a novel claim since it seeks to flip all liability for damages back to the government of Ecuador, and even seeks moral damages.

This could be a tremendous case, given its unusual facts. Offhand, it actually resembles Loewen, which challenged a domestic court proceeding (in the United States) as an effective expropriation and unfair and inequitable treatment. It seems like a good move by Chevron, in any event, since it keeps Ecuador on the defensive.

Luke Peterson offers a detailed analysis of Chevron’s request for arbitration here: http://kluwerarbitrationblog.com/

Thanks for the link Roger. Perhaps the most interesting thing about the Chevron claim (as well as another massive arbitration recently threatened by Cemex against the USA) is that, contrary to the Loewen case, the claimants are not even waiting for domestic legal proceedings to be resolved. Rather, the claimants are going to international arbitration in a proactive attempt to get indemnification against any unfavourable results in lower courts. As someone who makes his living tracking and reporting on these cases, this seems like a relatively brave new world to me.

Also, on the date of the US-Ecuador BIT, the confusion arises because the treaty was signed in 1993, but ratified in 1997.

Luke Eric Peterson, Editor
InvestmentArbitrationReporter.com

Opinio Juris , April 1, 2010 -- Ecuador Rejects Arbitration Award

Chevron Wins Round One Against Ecuador

by Julian Ku

This is just the first round of a potentially huge investor-state arbitration claim filed by Chevron against Ecuador. $700 million now, but up to $27 billion later. (For some background, see here and here about a federal court’s refusal to stay one of the arbitration proceedings.).

Chevron Corp (CVX.N) won a three-year-old arbitration fight against Ecuador over a commercial dispute as it battles the country separately over an environmental claim that may result in $27 billion in damages against the company.

An arbitration panel ruled on Tuesday that Ecuador’s courts violated international law by delaying rulings on commercial disputes between the U.S. oil company and Ecuador’s government, and awarded Chevron $700 million.

The arbitration panel partially resolved seven claims that Texaco, bought by Chevron in 2001, filed in Ecuador from 1991 to 1993, Chevron said. The panel found that the courts had breached a U.S.-Ecuador treaty by not ruling on the cases.

WSJ , APRIL 5, 2010,

Misspelling Leads to Big Discovery in Chevron/Ecuador Case

By Ashby Jones

Note to expert witnesses: If someone else is going to file allegedly fraudulent reports in a lawsuit in your name, for heaven’s sake, make sure they spell your name right.

It might sound like common sense. But the misspelling of an expert’s name in a multibillion-dollar environmental lawsuit filed against Chevron is what tipped off Chevron’s lawyers to the fact that the reports may have been fudged, a fact that has now been conceded by the expert himself. Click here for the WSJ story, by Ben Casselman and Angel Gonzalez. Click here, here andhere for earlier LB posts on the Chevron case.

The disclosure comes in the midst of a huge lawsuit accusing Chevron of causing widespread environmental damage in the Ecuadorean rain forest. In 2004, the plaintiffs hired an American biologist named Charles Calmbacher to help oversee soil and water tests in Ecuador.

Reports signed by Calmbacher showed high levels of toxins at two sites and estimated the contamination would cost more than $40 million to clean up at these sites alone.

But in a sworn deposition last week, Calmbacher said he didn’t write the reports submitted over his signature, which said the sites were highly polluted and needed remediation.

“I concluded that I did not see significant contamination that posed immediate threat to the environment or to humans or wildlife around it,” Calmbacher said, according to a transcript provided by Chevron.

Steven Donziger, a New York-based attorney for the plaintiffs said Calmbacher’s reports were only a small part of the overall case, and that other tests have shown contamination at dozens of sites. (Click here for a story about Donziger and the case published last September, from the American Lawyer.)

Chevron has said it expects to lose the case in Ecuador but plans to challenge enforcement of any ruling in the U.S., where it is the second-largest oil company by revenue.

Now, back to the allegedly forged signature. Gibson Dunn’s Andrea Neuman, the Chevron lawyer who conducted the deposition, said Chevron became suspicious after Calmbacher apparently misspelled his own name in letters to the Ecuadorean court asking for an extension in filing his reports.

In his deposition, Calmbacher said he had flown back to the U.S. early due to illness, and had therefore sent pre-signed pages back to Ecuador with the understanding his findings would be printed over his signature. But he said the reports that were filed didn’t reflect his conclusions.

He said he never saw the final version of the reports that were submitted to the court until he was shown them during the deposition.

“I did not reach these conclusions and I did not write this report,” he said in the deposition