As I discussed yesterday, an Ecuador Court has issued an $8.6 billion judgment against Chevron. I just got off a press conference call with plaintiff’s chief lawyer in Ecuador, Pablo Fajardo. He stated that the plaintiffs will seek enforcement of the Lago Agrio judgment throughout the world as soon as the Ecuador appeals process is complete. (At least two levels of appeal are anticipated). No specific countries were mentioned as preferred venues to enforce the judgment, although he seemed to believe that the judgment might still be enforceable in the United States.
He stated that Judge Kaplan does not have jurisdiction over the non-American lawyers or plaintiffs, and therefore he felt no obligation to comply with his order. He admits that his American co-counsel will be prevented from assisting in the enforcement of the judgment as a result of Judge Kaplan’s order, but suggested that there are plenty of other lawyers or third-party funders who will facilitate enforcement and recognition of the judgment. He also stressed that Judge Kaplan’s order is now on appeal, and therefore it is not yet binding.
As for the BIT arbitral tribunal’s injunction ordering Ecuador to prevent recognition and enforcement of the judgment at home and abroad, he stated that the private plaintiffs are not parties to that arbitration and that the Ecuador courts are constitutionally protected from any such attempts at interference by the Ecuador government. When I asked about the prospect of the tribunal ordering Ecuador to pay Chevron for damages it incurs in the recognition and enforcement of the Lago Agrio judgment, he seemed unconcerned about the possibility. He viewed the entire BIT arbitration as an illegitimate attempt by Chevron to undermine the Ecuador litigation.
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Whether or not Fajardo realizes it or not, the Ecuador Courts are one branch of the Ecuador Government. Mr. Fajardo is incorrect in his belief about the Chevron BIT action. This is not to nullify the Lago Agiro judgment, but just to place the payment at the correct party’s door – namely as the Ecuador Government’s responsibility. The Ecuador government has wrongly run-away from responsibility here. Why should Mr. Fajardo and the lago Agiro plantiffs care who pays their damages? I am sure the Ecuador government is more than good for the damages since they export over 400,000 barrels of oil a day. That is more then US40 million dollars a day or US14.6 billion dollars a year. It will take less than 1-1/2 years for them to get fully paid.