ARBITRAL AWARD IS INAPPLICABLE TO ECUADORIAN PLAINTIFFS
Lago Agrio, September 10, 2018.- Once the arbitration award regarding the lawsuit that the oil company Chevron pursued against the Ecuadorian State – known as Chevron III – has been made public, members of the UDAPT stated that it is not the first time this Arbitral Tribunal issues rulings that cannot be complied with, in an attempt to stop the trial against Chevron. The Ecuadorian Courts have already ruled in this regard, stating that the highest duty of the State is to guarantee the effective enforcement of the human rights recognized in the Constitution and in international treaties, a duty that goes beyond international trade obligations. For this reason, the new ruling is inapplicable to the Ecuadorian plaintiffs.
Pablo Fajardo, the lawyer for Ecuadorian indigenous people and settlers who won the private trial against the oil company, explained that an arbitral tribunal cannot force a State to violate its constitutional norms, disrespect the separation of powers and jeopardize the constitutional and legal guarantees protecting the human rights of Ecuadorian citizens.
Furthermore, he stated that it is inadmissible for a Court of Arbitration to order a State to annul a verdict ruled in trial between private individuals and which has been ratified by all judicial instances. This ruling clearly undermines the sovereignty of the State and its judicial independence, and above all it puts forward the supposed interests of “investors” over the human rights of the settlers who were affected by decades of deliberate contamination. This is unacceptable for any jurisdiction in the world, as their judicial systems would be simply reduced to lower courts in relation to those of arbitration.
Willian Lucitante, Coordinator of the Union of People Affected by Texaco (UDAPT), maintained that for more than 25 years justice has been denied, even by the Ecuadorian State, which on multiple occasions has yielded to pressure from the oil company and hindered the trial, which explains why this fight has been going on for a quarter of a century. He recalled that there are dozens of evidences of this pressure, which have been incorporated into the trial and publicly denounced. Regarding the content of the award, for Lucitante it is contradictory that the arbitration tribunal states that Ecuador has denied Chevron the possibility of a fair trial, despite recognizing that it has no jurisdiction to analyze the merits of the case, that the damage is real and that the contamination victims have the legitimate right to seek justice.
The Chevron III case was always a mechanism of blackmail used by the oil company on Ecuadorian governments to seek interference in private litigation, in which the State should not influence in any way. The main lawsuit filed by Chevron has the purpose to require the Ecuadorian government to intercede before its own courts (thereby violating judicial independence), to nullify the ruling against it, although knowing that this is unconstitutional.
As the arbitration award stems from a litigation between the oil company and the Ecuadorian State, the Ecuadorian victims were never part of this. Likewise, the State was never part of the private judgment against Chevron, so it is clear that it cannot be involved in any way, nor to prevent the enforcement of the judgment, much less to order its cancellation. Doing so would be a clear violation of human rights, such as access to justice and the right to be judged by an independent court.
The UDAPT spokesperson recalled as well that the Constitution of Ecuador establishes that the highest duty of the State is to guarantee human rights, for which it announces that the UDAPT will immediately resort to the Inter-American System for the protection of human rights, the Andean Court, the United Nations and other international panels to denounce the Government of Ecuador if it decides to put the obligations arising from the award before its international obligations in the field of human rights.
The duty of the State is now to exercise a technical defense using the strong legal arguments that support the position of Ecuador in this arbitration. The attorney for the plaintiffs, Pablo Fajardo, recalled that this arbitration award is related to a Bilateral Investment Treaty that was applied retroactively to this case, which immediately invalidates its application: Chevron left Ecuador in 1992, while the Agreement for Investment Protection was signed in 1997. “The only excuse for this arbitration is the negotiation and signing of a contract for the alleged remediation of contaminated areas, negotiated by Alberto Dahik and Sixto Durán Ballén”, added the lawyer, emphasizing at the same time that it has been demonstrated that this remediation was totally fraudulent.
Lucitante also showed concern about the evidence of current negotiations between the government of Ecuador and the government of the U.S.A., in which this private case has been placed as the main issue of negotiation, as previously explained by the Minister of Foreign Trade, Pablo Campana.
For the members of the UDAPT, what is happening now lights up the alarms about the need to revive the bilateral treaties for the supposed protection of investments, which in the reality aims to protect the transnationals that comment serious violations of human rights. Through its spokesperson, the indigenous people and settlers members of the UDAPT call on the State Attorney General, Iñigo Salvador, and the President of the Republic to defend national sovereignty, the independence of the judicial function and, above all, to guarantee full validity of the Constitution and the prevalence of the human rights of Ecuadorians over poorly negotiated obligations in international commercial matters.