Steven Donziger isn’t the only one who has a bone to pick with U.S. District Judge Lewis Kaplan, the Manhattan judge who sided with Chevron Corporation earlier this year in sprawling litigation over legacy oil pollution in the Ecuadorean Amazon.
This week the Republic of Ecuador submitted a proposed amicus brief in the Donziger case, which is now before the U.S. Court of Appeals for the Second Circuit. Winston & Strawn’s Eric Bloom writes that Kaplan insulted Ecuador’s judiciary when he ruled in March that Donziger manipulated Ecuador’s courts through bribery and fraud to win a $9.5 billion environmental judgment against Chevron.
However the New York appeal shakes out, Ecuador wants the Second Circuit to strike all “unfounded commentary” about the South American country’s judiciary from Kaplan’s ruling. Not only did Kaplan “smear” Ecuador’s courts based on unreliable facts and testimony, Bloom writes, but his ruling “gratuitously” aided Chevron in the separate but related international arbitration the oil giant has brought against Ecuador.
“[Kaplan] reached far beyond the issues presented to unfairly—and unnecessarily—impugn the integrity of the Republic of Ecuador and its courts,” the brief asserts. “Chevron sought, and in Judge Kaplan found, a friendly forum to issue improper findings that it is already using in the pending arbitration against the Republic.”
Chevron has adopted a two-pronged approach to discredit Donziger’s 2011 Ecuadorean mega-judgment, which found Chevron liable for contaminating a vast area of Amazon rainforest. The oil company brought racketeering claims in Manhattan, ultimately persuading Kaplan that Donziger orchestrated judicial bribery and the ghostwriting of the judgment itself. And Chevron is also pressing arbitration claims against the Republic of Ecuador before a trio of arbitrators affiliated with the Permanent Court of Arbitration in The Hague. In the arbitration, Chevron argues that Ecuador breached a 1995 agreement that released Chevron’s predecessor Texaco from environmental liability. Chevron also alleges that it was railroaded in the Ecuadorean court system, and that the Republic therefore violated treaty provisions promising that investors would be protected and treated fairly.
The New York case culminated in Kaplan’s March 4 ruling, which was a huge win for Chevron’s lawyers at Gibson, Dunn & Crutcher (see some of our prior coverage here, here and here). Kaplan’s decision focused on Donziger’s conduct. But the judge also wrote that Ecuador’s judiciary “has been in a state of severe institutional crisis for some time” and that “the rule of law is not respected in Ecuador.”
Those are precisely some of the arguments Chevron is making in the still-pending arbitration. But according to Ecuador’s brief, Kaplan is far off the mark.
“Two decades of reforms have enabled the Republic to enhance the quality, independence, and efficiency of its judicial system,” the brief states. “These reforms, which have garnered international acclaim, demonstrate that the district court’s suppositions regarding the Ecuadorian judiciary are simply false.”
Donziger submitted his opening brief appealing Kaplan’s ruling last week.