judicial misconduct
Wednesday, October 7th 2009
A recent article in El Comercio, a major Ecuadorian newspaper, exposes a telling increase in the number of lawsuits filed against the country of Ecuador. These lawsuits are being put forward by foreign companies that have invested millions in the South American nation.
It was not until 2001 that the country of Ecuador was sued for the first time by a foreign company. By 2008, the year after President Rafael Correa took office, a large number of foreign companies began to file lawsuits. Currently, Ecuador is 2nd in the world in terms of pending international arbitration claims against the country; so much so that the cumulative sum of the 11 pending lawsuits would now equal nearly one-half of the country’s budget of approximately $21 billion.
It’s no coincidence that the election of Ecuadorian president Rafael Correa coincides with the skyrocketing number of lawsuits being filed. Many of these lawsuits concern breach of contract and denial of justice. Mr. Correa has made no secret of his indignation towards foreign companies with operations in Ecuador. Consequently, he announced on May 30 that his country would be denouncing the International Center for Settlement of Investment Disputes (ICSID), calling the World Bank’s arbitration facility an “atrocity”. Moreover, he has defaulted on debt, seized companies’ assets and attacked businesses with antagonistic rhetoric and draconian regulations. He has even gone as far as tightening government control over dissident media outlets.
Further, in an attempt to divert blame for pollution created by Petroecuador, Mr. Correa has on a number of occasions vocally taken the side of the U.S. trial lawyers suing Chevron for $27 billion in environmental damages.
The hostile business environment detailed above, Ecuador’s inequitable and politically prejudiced judicial system and the serious judicial misconduct and political influence caught on tape has made it impossible for Chevron to receive a fair trial in Ecuador. For this reason, Chevron is the latest to file an international arbitration claim against the government of Ecuador citing violations of the country’s obligations under the United States-Ecuador Bilateral Investment Treaty, investment agreements, and international law.
Tuesday, September 29th 2009
9/29/09 Update – For the second time in a month, Judge Juan Núñez has been removed from the Lago Agrio trial. The Provincial Court of Justice of Sucumbios decided on Monday to accept the recusal of Núñez. Chevron is continuing to push for the annulment of the judge’s previous decisions, including rulings to facilitate, as well as shield from scrutiny, the biased Cabrera process.
From 9/24/09 - In yet another twist in the Chevron case in Ecuador, Judge Juan Núñez has been reinstated as the presiding Judge in the Lago Agrio court.
Just four days after Chevron released a series of videos that depicted serious judicial misconduct, Ecuadorian Judge Juan Núñez was asked by Ecuador’s Prosecutor General to recuse himself from presiding over the Chevron environmental lawsuit in Lago Agrio.
However, this past Tuesday, the Ecuadorian court announced that Judge Núñez would resume presiding over the Chevron case on the basis that he had failed to provide any evidence to support his recusal. Meanwhile, the court has not ruled on the merits of Chevron’s petition for Judge Núñez to be removed from the case or the extensive evidence that Chevron provided of corruption, bias and prejudgment.
All along, Chevron has maintained that no judge who has participated in the type of meetings (shown here) could possibly have rendered a legitimate decision. Through his past rulings, Judge Núñez has demonstrated a clear bias in this case as he has consistently shielded the corrupt Cabrera process from any sort of reasonable inquiry and scrutiny. Judge Núñez has also made multiple prejudicial public statements clearly indicating that he lacks objectivity, is biased, and has prejudged the case. Now, with the release of the evidence that Judge Núñez was involved in inappropriate meetings connected to a bribery plot, there is further proof that he has prejudged the case.
The U.S. State Department, in its Investment Climate Statement on Ecuador released in February 2009, has found that Ecuador’s “courts are often susceptible to outside pressure and bribes. Neither Congressional oversight nor internal judicial branch mechanisms have shown a consistent capacity to effectively investigate and discipline allegedly corrupt judges.”
Should Judge Núñez continue to preside over the case, it would further validate the State Department’s findings and reinforce that the rule of law in Ecuador has been compromised.
Tuesday, September 8th 2009
9/8/09 Update – Lawyer Fernando Larrea, in a September 7th interview with Ecuavisa, affirms that Judge Nunez violated the law when he accepted meetings with individuals seeking environmental remediation contracts. Judge Nunez recused himself from the case on September 4th.
9/4 – Ecuadorian Judge Juan Núñez, the judge presiding over the Chevron environmental lawsuit in Lago Agrio, made the decision Friday to recuse himself from the case. Chevron has maintained that no judge who has participated in the type of meetings shown in the video recordings (released earlier in the week) could possibly have rendered a legitimate decision.
Transcripts of a meeting recorded on June 5 clearly show the judge has prejudged the case even though evidence was still being submitted and final arguments have not been held. And the judge was willing to talk about that decision with businessmen (Hansen) seeking post-verdict remediation contracts.
- Núñez: “Any other questions for me as a judge?”
- Hansen: “Oh no, I, I know clearly how it is, you say, Chevron is the guilty party?”
- Núñez: “Yes Sir.”
- Hansen: “And the, the, the act (decision) is October or November of this year?”
- Núñez: “Yes Sir.”
- Hansen: “And it’s …?”
- Núñez: “No later than January.”
- Hansen: “January 2010. And the money is twenty-seven (billion dollars)?”
- Núñez: “It might be less, and it might be more.”
–The Amazon Defense Coalition supported and defended Judge Núñez:
Surprisingly, the Amazon Defense Coalition rushed to the defense of the judge, even though video evidence showed he was having inappropriate meetings. Rather than concede that the judges’ conduct is improper, the Amazon Defense Coalition defended Judge Núñez’s conduct, the Ecuadorian judicial process and vehemently attacked Chevron for turning over evidence of judicial misconduct.
After the videos were made public on August 31st, Karen Hinton, US spokesperson for the Amazon Defense Coalition said the following, “We have full confidence in the Ecuadorian judicial system…”
In a September 2nd interview with EFE news agency, the Amazon Defense Coalition again defended Núñez and his conduct. In the interview, attorney Pablo Fajardo states, “The judge ‘has acted straight (…) and that rectitude, honesty and openness of the judge is what terrorizes Chevron.’”
The Amazon Defense Coalition’s steadfast support for the judge despite evidence of inappropriate conduct raises important questions about the organization’s tactics and disregard for a fair and impartial hearing of this case.
–Judge’s rulings must be annulled, investigation must move forward:
Now that Judge Núñez has stepped down, it is important that his prior rulings be annulled, including numerous improper rulings to facilitate, as well as shield from scrutiny, the biased Cabrera process.
Moreover, recent statements by Ecuadorian government officials indicate an intent to attack Chevron rather than investigate potentially inappropriate actions by party officials such as Patricio Garcia and Alexis Mera.
The removal of Judge Núñez must not be an attempt to deflect attention from the serious indications of political interference with the case that appear in the video recordings.
Monday, August 31st 2009
Chevron is asking the Government of Ecuador to disqualify the judge presiding over the lawsuit involving the company.
The company has disclosed video recordings of meetings that show the judge discussing his verdict with businessmen. The judge confirms that he is going to rule against Chevron in the case and that the company will lose its appeal – even though the trial is still ongoing and evidence is still being received. And a purported ruling party official in Ecuador states that lawyers from the executive branch have been sent to assist the judge in writing the decision.
The video recordings also show an individual, Patricio Garcia, who identifies himself as a member of Ecuador’s ruling party, discussing details of the $3 million bribe with the same businessmen. The bribe was sought in return for remediation contracts to be handed out by the government after the adverse verdict is handed down by the judge.
The tapes show $3 million in bribes were sought: $1 million to Judge Núñez, $1 million to the plaintiffs suing Chevron and $1 million to “the presidency,” Garcia said.
The four video-taped meetings occurred in May and June of 2009. Two of the meetings took place at the Quito offices of Alianza PAIS, Ecuador’s ruling party, one meeting took place in the judge’s chambers in Lago Agrio, and a second meeting involving the judge took place in a Quito hotel.
After referring the evidence of the scheme to authorities, Chevron Executive Vice President Charles James said that company lawyers will seek disqualification of the judge in the case and annulment of his prior rulings.
“No judge who has participated in meetings of the type shown on these tapes could possibly deliver a legitimate decision,” James said.
“We are calling upon Ecuadorian authorities to conduct a full investigation of this matter – focusing not only on the conduct of Judge Núñez, but also on the very serious indications of political interference in this case.
“We feel compelled to put this entire matter in the public domain as a check against retaliation or further unlawful conduct as it relates to the case there. We also believe that public disclosure will encourage a deeper investigation of these matters by appropriate officials within Ecuador.”
In the videos, Judge Núñez makes numerous statements indicating prejudgment of the case against Chevron. In one recorded meeting, he participated in the following exchange:
Núñez: “Any other questions for me as a judge?”
Hansen: “Oh no, I, I know clearly how it is, you say, Chevron is the guilty party?”
Núñez: “Yes Sir.”
Hansen: “And the, the, the act (decision) is October or November of this year?”
Núñez: “Yes Sir.”
Hansen: “And it’s….?”
Núñez: “No later than January.”
Hansen: “January 2010. And the money is twenty-seven (billion dollars)?”
Núñez: “It might be less, and it might be more.”
The last recorded meeting showed details regarding the bribes. It occurred June 22 at the Alianza PAIS office in Quito. During the meeting, Garcia confirmed the details of the bribe:
Borja: “OK. Of the three million … one million is for the judge?”
Garcia: “Yes.”
Borja: “One million for the presidency…?”
Garcia: “Yes.”
Borja: “And one million for the plaintiffs?”
Garcia: “Yes, that’s right.”
Borja: “But, Loco, for the plaintiffs, who gets the money? Fajardo?”
Garcia: “No. The thing is, we’re going to handle it here.”
Borja: “You mean Alianza PAIS would receive the payment here?”
Garcia: “Right.”
Evidence of the bribery plot was brought to Chevron’s attention in June by an Ecuadorian citizen, who was pursuing business opportunities in Ecuador along with an American businessman.
The Ecuadorian, Diego Borja, has performed work for Chevron as a logistics contractor. Borja also has a relative who works as a contractor to Chevron. The American, Wayne Hansen, has no relationship to Chevron.
Since the time that the recordings came into Chevron’s possession, the company has made extensive efforts to authenticate and preserve the information.
Recording 1, Spanish Transcription and English Translation
Recording 2, Spanish Transcription and English Translation
Recording 3, Spanish Transcription and English Translation
Recording 4, Spanish Transcription and English Translation
