I recently watched the following video, and it made me feel all kinds of ways:
The video itself covers the topic pretty well and it's difficult to add to it without repeating stuff, but I thought it's worth highlighting some of the nuance around the whole thing.
While to some it might seem obvious that the whole justice process was highly corrupted and Chevron bribed officials and the US government itself, it's important to understand the key points that lead to such a conclusion:
However, Chevron still hasn't paid a penny from the $9.5B ruled as damages to the 30,000 Ecuadorian plaintiffs. And the reason why they haven't is at the core of this incredibly complex case.
Chevron took the case to the Permanent Court of Arbitration (PCA) in The Hague. Because of the different legal framework the tribunal operated under (international investment law) and its specific interpretation of the evidence, the case was not a direct appeal of the Ecuadorian environmental lawsuit. Instead, Chevron sued the Republic of Ecuador itself under the U.S.-Ecuador Bilateral Investment Treaty (BIT). This changed the whole dynamic:
The three-person arbitral panel, which unanimously included the arbitrator appointed by Ecuador itself (weird, I know), concluded that the $9.5 billion judgment was procured through egregious fraud and corruption. Their 500+ page ruling detailed overwhelming evidence of this, including:
So, then, how did they deal with Alberto Guerra and his false testimony? This is the key point.
The tribunal was well aware of the issues surrounding Alberto Guerra. However, they ultimately found that even without Guerra's testimony, there was sufficient independent and forensic evidence to prove fraud.
In Judge Kaplan's words from the U.S. case, which the tribunal's reasoning mirrored, Guerra's credibility was "not impeccable," but his account was "corroborated extensively by independent evidence". The tribunal found the evidence of ghostwriting and inappropriate collusion to be so overwhelming that it stood on its own.
To date, there has been no official credible evidence presented to suggest that the arbitrators at the Permanent Court of Arbitration were bribed by Chevron, even though all of the above would naturally lead one to think that. An allegation against a preeminent international legal body of this caliber would be extremely serious, require a high standard of proof, and have global consequences that are difficult to overstate.
Two major points to highlight related to this ruling:
Even though I try and maintain a balanced view on this whole issue, the human in me finds it impossible to ignore what seems obvious - governments and their justice systems are more interested in the corporate wealth circulating through their vaults than the suffering it causes. If, and I stress on the if, the PCA was indeed bribed by Chevron and ruled in its favor, which, provided the evidence, seems very likely, then we have to really think about the concept of justice and its relationship to money.
Seeing footage of these poor, innocent souls shoveling toxic waste out of the pristine waters of one of the most important and valuable water basins on our planet broke my heart. And the untold suffering that came (and is yet to come!) as consequence of all that pollution, compounds these emotions incalculably.
All I can hope for is a future where we humans can be more...human. It might not sound like much to ask for, but it certainly has proven challenging.
Be well, my friends. And preserve your humanity.
The video itself covers the topic pretty well and it's difficult to add to it without repeating stuff, but I thought it's worth highlighting some of the nuance around the whole thing.
While to some it might seem obvious that the whole justice process was highly corrupted and Chevron bribed officials and the US government itself, it's important to understand the key points that lead to such a conclusion:
- Chevron's key witness, Alberto Guerra, was paid enormous sums of money (more than $1M) and given benefits by Chevron, such as being relocated to the US and protecting him - this is an obvious conflict of interest and such a witness' testimony should never have been even considered, yet it did
- Even though U.S. Attorney's office declined to prosecute Donziger in the misdemeanor contempt case, the judge, Lewis Kaplan, decided to appoint a private law firm - Seward & Kissel - to prosecute Donziger. This firm had previously had Chevron as a client, which again hints at a massive conflict of interest and an unjust process
- Judge Kaplan openly expressed judicial hostility towards Donziger throughout the proceedings, which further solidifies him being partial to the outcome of the case and wholly uninterested in actual justice
- The United Nations High Commissioner for Human Rights condemned Donziger's nearly 1000 day house arrest and the legal proceedings against him as arbitrary and unjust, stating that they violated international law
However, Chevron still hasn't paid a penny from the $9.5B ruled as damages to the 30,000 Ecuadorian plaintiffs. And the reason why they haven't is at the core of this incredibly complex case.
Chevron took the case to the Permanent Court of Arbitration (PCA) in The Hague. Because of the different legal framework the tribunal operated under (international investment law) and its specific interpretation of the evidence, the case was not a direct appeal of the Ecuadorian environmental lawsuit. Instead, Chevron sued the Republic of Ecuador itself under the U.S.-Ecuador Bilateral Investment Treaty (BIT). This changed the whole dynamic:
- The fight was no longer just Indigenous Plaintiffs vs. Chevron. It was Chevron (the investor) vs. Ecuador (the state).
- Chevron argued that Ecuador had violated the treaty by failing to provide a fair and equitable legal process and, ultimately, by allowing its courts to be used to produce a fraudulent judgment. They argued this amounted to a "denial of justice" for which the state itself was liable
- Chevron asked the tribunal to declare the $9.5 billion judgment invalid under international law and hold Ecuador financially responsible for the legal mess
The three-person arbitral panel, which unanimously included the arbitrator appointed by Ecuador itself (weird, I know), concluded that the $9.5 billion judgment was procured through egregious fraud and corruption. Their 500+ page ruling detailed overwhelming evidence of this, including:
- Ghostwriting: The tribunal found compelling evidence that the plaintiffs' legal team had ghostwritten the expert environmental report used by the court and had likely even ghostwritten large parts of the final judgment itself.
- Bribery and Coercion: They concluded that the presiding Ecuadorian judge had been bribed and that the legal process had been corrupted.
- Previous Settlement: The tribunal also gave weight to a 1995 settlement agreement where Texaco (now Chevron) had conducted a $40 million remediation that was approved by the Ecuadorian government. The government then officially released Texaco from all further environmental claims. The tribunal saw the new lawsuit as a violation of this release.
So, then, how did they deal with Alberto Guerra and his false testimony? This is the key point.
The tribunal was well aware of the issues surrounding Alberto Guerra. However, they ultimately found that even without Guerra's testimony, there was sufficient independent and forensic evidence to prove fraud.
In Judge Kaplan's words from the U.S. case, which the tribunal's reasoning mirrored, Guerra's credibility was "not impeccable," but his account was "corroborated extensively by independent evidence". The tribunal found the evidence of ghostwriting and inappropriate collusion to be so overwhelming that it stood on its own.
To date, there has been no official credible evidence presented to suggest that the arbitrators at the Permanent Court of Arbitration were bribed by Chevron, even though all of the above would naturally lead one to think that. An allegation against a preeminent international legal body of this caliber would be extremely serious, require a high standard of proof, and have global consequences that are difficult to overstate.
Two major points to highlight related to this ruling:
- It can rationally be argued that the entire Investor-State Dispute Settlement (ISDS) system, under which this tribunal operated, is inherently biased towards protecting corporate investors at the expense of sovereign states and human rights
- It can just as rationally be argued that the tribunal focused entirely on the alleged corruption of the legal process and the specifics of the BIT, while completely ignoring the underlying environmental catastrophe and the human suffering it caused, which in my own eyes is infinitely more important
Even though I try and maintain a balanced view on this whole issue, the human in me finds it impossible to ignore what seems obvious - governments and their justice systems are more interested in the corporate wealth circulating through their vaults than the suffering it causes. If, and I stress on the if, the PCA was indeed bribed by Chevron and ruled in its favor, which, provided the evidence, seems very likely, then we have to really think about the concept of justice and its relationship to money.
Seeing footage of these poor, innocent souls shoveling toxic waste out of the pristine waters of one of the most important and valuable water basins on our planet broke my heart. And the untold suffering that came (and is yet to come!) as consequence of all that pollution, compounds these emotions incalculably.
All I can hope for is a future where we humans can be more...human. It might not sound like much to ask for, but it certainly has proven challenging.
Be well, my friends. And preserve your humanity.
