Caso Chevron

The Global Lawyer: Chevron, Ecuador and the joys of arbitration

Michael D Goldhaber explains what Chevron got out of its legal ordeal with Ecuador, and what it still stands to gain.

FDI Intelligence - Michael D. Goldhaber 14/12/2018

Four-and-a-half years after a US judge took 500 pages to definitively expose the world’s greatest litigation fraud in Chevron versus Donziger, arbitrators took 500 pages to expose the same fraud on the same evidence in Chevron versus Ecuador. 

Aside from being quicker, the US courts provided the discovery that was essential to unmasking the crooked lawyers and the publicity crucial to discrediting their case. So why did Chevron bother with arbitration?

First, you cannot be too careful when your adversaries hold a $9.5bn Ecuadoran judgment that remains theoretically enforceable anywhere in the world. Plaintiffs’ lawyer Steven Donziger appeared to live by the maxim “if you repeat a lie a thousand times it becomes the truth”, whereas Chevron’s motto might be “if you expose a lie a thousand times it becomes unenforceable”.

While the US courts enjoined the plaintiffs from collecting their judgment, the arbitrators have declared its enforcement to violate international public policy. And though some of the public will persist in believing the plaintiffs team’s lies (that Chevron has created a mass cancer epidemic in the Amazon, and persecuted the 'good guy' lawyers), those lies become harder even for a politicised court to accept (or pretend to accept) with every new 500 pages of damning jurisprudence. 

“Short of a signed confession by the miscreants,” Chevron versus Ecuador concludes, this “must be the most thorough documentary, video, and testimonial proof of fraud ever put before an arbitral tribunal”. Their “prolonged malign conduct… almost beggars belief in its arrogant contempt of the elemental principles of truth and justice”.

Second, it is always nice to establish that a ‘denial of justice’ arbitration may be used as a shield against a jackpot judgment by a corrupt national court. For years, I falsely predicted that the tribunal would avoid the stigmatising clarity of calling the Ecuadoran courts unjust. They might have rested their case solely on Ecuador’s violation of its contract to release Chevron from collective environmental claims. Or they might have invoked the inchoate doctrine (drawn from an earlier Chevron versus Ecuador panel) that transforms a treaty’s promise of ‘effective means’ to vindicate an investor’s rights, into a sort of 'denial of justice-lite'. 

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