By Gonzalo Ortiz
“Many people said that an Ecuadorean court would never rule against a big transnational corporation,” Juan Pablo Sáenz told Tierramérica. He is the youngest on the Ecuadorean prosecuting team against Chevron in the environmental case of the century.
On Feb. 14, a provincial Ecuadorean court issued the harshest environmental verdict in history against a major oil company, the U.S.-based Chevron. But is there any possibility it will be carried out?
“We wouldn’t keep working on this if we didn’t think success was possible. On a scale of one to 10, it’s a 10,” the youngest of the litigant attorneys, Juan Pablo Sáenz, told Tierramérica in an interview.
It is the environmental trial of the century. The ruling of first instance orders Chevron to pay 9.5 billion dollars to pay for the damage to human health and the environment in an Amazon forest area of northeast Ecuador, in the provinces of Sucumbíos and Orellana, where its current affiliate Texaco has conducted oil exploration and drilling operations for 26 years.
At the time that this Tierramérica edition was published, the company had presented a request for clarification and an extension of the ruling, which in practice freezes the 72-hour deadline the parties have to appeal once the verdict is issued.
When the legal battle began in 1993, Juan Pablo Sáenz was just finishing primary school. Now, at age 29, he is part of the legal team that has tallied a major win, joining them four years ago after winning a contest as he finished his legal studies.
TIERRAMÉRICA: On a scale of one to 10, what would you say are the chances of the ruling being carried out?
JUAN PABLO SÁENZ: We wouldn’t keep working on this if we didn’t think the chance was a 10. Many people said that this was never going to succeed, that an Ecuadorean court would never rule against a big transnational corporation.
But we have several options and we have the advice of a U.S. law office, Patton Boggs LLP, which is an expert in enforcing this type of sentence. We are absolutely convinced that this can be carried out because it is just.
TIERRAMÉRICA: The reality is that justice does not always win, especially when there are such powerful interests on one side.
JPS: Of course, but we have to believe in miracles. What differentiates us from similar cases is that we are working directly with the communities.
We are dedicated, in the end, to executing the decisions that they make, and that gives us strength. As Pablo Fajardo (coordinator of the legal team) said, this is a matter of principles. And even if it takes many, many years, I am sure that we — and I am speaking for the attorneys, but especially for the communities — are going to last much longer than our opponents.
TIERRAMÉRICA: It’s clear that the lawsuit did not seek money to distribute to people, and the sentence says that the fines should go to specific rubrics of environmental remediation and health care, and states that these resources will be managed by a trusteeship. How many potential beneficiaries are there?
JPS: All of the residents of Orellana and Sucumbíos provinces. A few years ago they talked about 30,000 people. They are directly affected because they live in areas neighboring petroleum zones. But according to the latest census, we would be talking about around 223,000 people in the two provinces.
TIERRAMÉRICA: How many plaintiffs were there?
JPS: The people who signed the lawsuit, and who have continued with admirable tenacity, are not going to receive any money. This is a collective lawsuit, that is, it was done in the name of all who live in the area. It is an undefined but identifiable group.
TIERRAMÉRICA: How do you take legal action against Chevron outside the United States to ensure that the sentence is carried out, given that the company has not operated in Ecuador for years? What countries are you considering?
JPS: There is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, of which Ecuador is a signatory. The easiest would be to look for enforcement in a country that is also a signatory of the treaty, because the process would be faster, but we could focus on any country where Chevron has oil platforms, ships, any type of goods, and seek their embargo until Chevron recognizes its obligation.
TIERRAMÉRICA: Do you have a country in mind?
JPS: We have a list of countries, but it would be premature now because it is obvious that they are going to file all possible appeals in the case, and there still are a few higher instances.
TIERRAMÉRICA: The first is before the full court of Sucumbíos. Then, if Chevron continues filing appeals, it would have to take the case to the National Court of Justice for cassation, right?
JPS: Yes, but cassation is a much more limited appeal because the deeper issue would not be discussed, but rather three or four specific considerations. The timing is accelerating because it is a summary verbal judgment for which the law gives judges shorter deadlines. TIERRAMÉRICA: So a one-year deadline is reasonable?
JPS: Yes. The first appeal should not take longer than six months, because new evidence is presented; it is simply judged based on what exists in the writs.
TIERRAMÉRICA: What is your view of the appeal Chevron filed before the Permanent Court of Arbitration, based in The Hague, and in a New York court to prevent the sentence from being enforced?
JPS: They are suing Ecuador and are trying to re-litigate the whole matter as if the Ecuadorean government were party to it, and it isn’t. It is hard to imagine that the arbitration court of The Hague would ask the Ecuadorean government to interfere in the judiciary’s operations. It is ridiculous to think that.
The court of The Hague cannot prejudge the rulings made by courts in Ecuador, which are independent, and much less tell the government not to respect the judicial rulings.
The cases in New York and The Hague have no chance of interfering in the enforcement of the sentence. There is no supranational forum in which we are going to confront Chevron.
TIERRAMÉRICA: And when the moment comes to enforce the ruling?
JPS: When we request injunctions against Chevron, any judge or court will review whether certain basic requirements were followed: that nobody has been deprived of the right to a defense, that due process was followed, but nothing more.
TIERRAMÉRICA: But Chevron is already taking action in other ways…
JPS: What it is doing is lobbying against Ecuador, for example, trying to prevent the renewal of preferential tariffs. It wants the Ecuadorean government to interfere in due process. Chevron has spent millions of dollars over the past few years to drive a wedge between the U.S. government and Ecuador. They have no interest in this being heard in court: they have no arguments.