(i) The Claimants' Supplemental Memorial on Track 1B dated 31 January 2014;
(ii) The Respondent's Supplemental Counter-Memorial on Track 1B dated 31 March 2014;
(iii) The Parties' respective pre-hearing skeleton arguments submitted for the April Hearing.
(i) The first expert report of Dr Enrique Barros (undated);
(ii) The first expert report of Dr César Coronel Jones dated 6 September 2010;
(iii) The first expert report of Professor Ángel R. Oquendo dated 2 September 2010;
(iv) The first expert report of Dr Gustavo Romero Ponce dated 3 September 2010;
(v) The second expert report of Dr Enrique Barros dated 27 August 2012;
(vi) The second expert report of Professor Ángel R. Oquendo dated 28 August 2012;
(vii) The second expert report of Dr Gustavo Romero Ponce dated 27 August 2012; and
(viii) The second expert report of Dr César Coronel Jones dated 28 August 2010.
(i) The first expert report of Professor Genaro Eguiguren dated 2 July 2012;
(ii) The second expert report of Professor Genaro Eguiguren dated 26 October 2012;
(iii) The second expert report of Dr Fabián Andrade Narváez dated 18 February 2013; and
(iv) The third expert report of Professor Genaro Eguiguren dated 26 October 2012.
"32. Claimants request relief that effectively protects their rights and reverses the harmful effects of Ecuador's breaches of the Settlement Agreements and its international law obligations. To achieve this result, Claimants respectfully request a Final Track I Award on liability and non-monetary remedies immediately after the Track I hearing specifically holding:
A. Declaring that:
(1) The Lago Agrio Litigation is exclusively a diffuse-rights case.
(2) The 1999 EMA has no legal effect on the 1995 Settlement Agreement.
(3) The Lago Agrio Litigation was barred at its inception by res judicata.
(4) By issuing the Lago Agrio Judgment and rendering it enforceable within and without Ecuador, Ecuador violated various provisions of the BIT.
(5) By issuing the Lago Agrio Judgment on diffuse claims barred as res judicata, Ecuador breached the 1995, 1996 and 1998 Settlement Agreements, and also violated Chevron's rights under the BIT.
(6) The Lago Agrio Judgment is a nullity as a matter of Ecuadorian law.
(7) The Lago Agrio Judgment is a nullity as a matter of international law.
(8) The Lago Agrio Judgment is unlawful and consequently devoid of any legal effect.
(9) The Lago Agrio Judgment is a violation of Chevron's rights under the BIT, and is not entitled to enforcement within or without Ecuador.
(10) The Lago Agrio Judgment violates international public policy and natural justice, and that as a matter of international comity and public policy, the Lago Agrio Judgment should not be recognised and enforced.
(11) By: (i) taking measures to enforce the Judgment against assets within Ecuador, and (ii) taking measures to facilitate enforcement of the Judgment in other jurisdictions, Ecuador is in breach of its obligations under the BIT, and must compensate Claimants for any sum of money collected by the Lago Agrio Claimants for any sum of money collected by the Lago Agrio Plaintiffs and/or their agents as a result of the Judgment.
B. Ordering Ecuador (whether by its judicial, legislative, or executive branches):
(1) To take all measures necessary to set aside or nullify the Lago Agrio Judgment under Ecuadorian law.
(2) To take all measures necessary to prevent enforcement and recognition within and without Ecuador of the Lago Agrio Judgment.
(3) To take all measures necessary to prevent the Lago Agrio Plaintiffs or any Trust from obtaining any related attachments, levies, or other enforcement devices under the impugned Judgment.
(4) To make a written representation to any court in which the Lago Agrio Plaintiffs or any Trust attempt to recognise and enforce the Lago Agrio Judgment that: (i) the claims that formed the basis of the Lago Agrio Judgment were validly released under the Ecuadorian law by the Government; (ii) the Lago Agrio Judgment is a legal nullity; and (iii) any enforcement of the Lago Agrio Judgment will place Ecuador in violation of its obligations under the BIT.
Claimants also request that the Tribunal provide for a subsequent phase in this arbitration to determine all costs and attorneys' fees that should be awarded to Claimants for being forced to (i) pursue this arbitration; (ii) uncover the Judgment fraud; and (iii) defend against enforcement of the Lago Agrio Judgment in any jurisdiction."
a. That the Environmental Management Act 1999 does not contain substantive rights which were relied upon by the Lago Agrio Plaintiffs, but merely established a procedure for civil redress;
b. That Articles 2214 (and specifically strict liability under Article 2229) and 2236 (threat of contingent harm) of the Civil Code15 could be applied in a special proceeding under the Environmental Management Act;
c. That the 1995 Settlement Agreement had no erga omnes effects, but was simply an agreement signed by governmental institutions and the Second Claimant (TexPet);
d. That third generation rights are not represented by state institutions and therefore the obligations caused by environmental damage cannot be extinguished by agreements between municipalities, government ministers and companies;
e. Representation of collective rights had not been granted to ministries or municipalities, but to groups whose rights have been impacted, and therefore the ministries and municipalities had no power to settle such claims;
f. The Environmental Management Act took effect in July 1999, well before the Lago Agrio Complaint was filed in May 2003 and therefore the Lago Agrio Court did not improperly apply those provisions;
g. Article 43 of the Environmental Management Act regulates the procedure in civil actions for environmental harm whilst the Civil Code regulates and determines liability;16
h. Article 2214 of the Civil Code does not contemplate only individual actions but provides for a popular action for cases of contingent damage in which undetermined persons are threatened. It is clear from the Delfina case that this cause of action existed before the 1998 Constitution and the Environmental Management Act 1999 came into effect;17 and
i. Under Article 2236 of the Civil Code, it is possible to protect collective interests, not only in the sense of preventing future violations of the right but also returning matters to their proper state.
a. The 1995 Settlement Agreement does not refer to individual or collective or diffuse claims. Indeed there was no reference to diffuse or collective rights in Ecuadorian jurisprudence until 1998; and the lawyers responsible for drafting the 1995 Settlement Agreement therefore cannot have had such concepts in mind when they drafted the 1995 Settlement Agreement;
b. The Tribunal has decided, in the First Partial Award, that the 1995 Settlement Agreement did not have erga omnes effect and therefore does not preclude claims made by third persons in respect of their own individual rights;
c. Tort claims are individual claims, irrespective of whether or not they can be maintained collectively under the procedural mechanism established by Article 43 of the Environmental Management Act;
d. The Lago Agrio Court found that the principal bases for liability were Articles 2229 (strict liability) and 2236 (threat of contingent harm). In relation to strict liability, the Lago Agrio Court relied upon the Supreme Court's judgment in Delfina. In that case, which was decided before the Environmental Management Act came into force, a claim for strict liability under Article 2229 was upheld by the Supreme Court. On the Claimants' case, only the State had standing to pursue or settle claims for diffuse rights in respect of harm to the environment; and therefore Delfina cannot have been a diffuse claim.
e. The Supreme Court in Delfina rejected an argument that the action had been brought on behalf of the people, deciding that the court below had confused the person bringing the claim with the party who would receive the material benefit of the claim. The Supreme Court held that the Delfina plaintiff had not purported to act as legal representative of the public interest; and, if that plaintiff had done so, this would have constituted a procedural bar to the action; and
f. Further, the remedies ordered by the Supreme Court in Delfina were similar to those that were ordered by the Lago Agrio Court. The plaintiff in Delfina did not seek individualised compensation, but rather the realisation of basic infrastructure projects which would benefit the whole community.
"The Court hearing the case below has confused the plaintiff's representation and the specific content of the claim... Nowhere in the complaint is it stated that the party bringing this complaint does so as the representative of, nor on behalf of, the public interest, but rather the appellant asserts his capacity as legal representative of a private entity and in his own right and on his own behalf. If the action had been brought by a plaintiff claiming to act as legal representative of the ‘public interest' or of society in general, doubtless this would have constituted a procedural bar to the suit, or a lack of standing to sue according to the terminology adopted by our Code of Civil Procedure, since in our system of positive law ‘class actions' have not yet been adopted, and this lawsuit would have been barred, because it would have amounted to the situation foreseen in section 3 of article 355 of the Code of Civil Procedure.19 But if the plaintiff brings his claim in his own name, without any evidence that he is acting in one of the instances for which he lacks standing to sue, and that he also brings the suit on behalf of and as legal representative of a private legal entity, whose existence as well as whose representation have [sic: has] been duly accredited, then no procedural error regarding the claim itself or a lack of standing exists. "20
(The Environmental Management Act was not here considered by the Supreme Court. The incidents giving rise to the claim occurred on 1 October 1997 and 26 February 1998, with the complaint filed on 3 August 1998. The Environmental Management Act 1999 came into force later on 30 July 1999).
"... In the case under review, the plaintiff, showing a high degree of social solidarity, in his complaint does not seek individualized compensation but instead seeks the realization of basic infrastructure projects that would benefit the whole of the community. Specifically he requests the following be done in the [parish]: installation of sewage and wastewater lines, treatment plant for sewage and wastewater lines, rainwater drainage system, placement of a rock base in the riverbeds, a concrete retention wall, a medical dispensary.[It is here unnecessary for the Tribunal to complete the long list of remedial reparations]. These work projects clearly will not become part of the patrimony of the Improvement Committee, but instead would become part of property intended for public use, as per article 626 of the Civil Code, which are organized and administered by State entities and institutions.".24
a. The BIT's umbrella clause cannot be used as a source of new obligations which were not contracted by the signatory parties to the 1995 Settlement Agreement;
b. The doctrine of legitimate expectations should not be used as a substitute for the actual contractual arrangements agreed between the signatory parties; and
c. The effective means provision of the BIT cannot impose an obligation upon the Respondent by its legal system to uphold alleged rights which the Claimants do not have under the 1995 Settlement Agreement.
Counter-Memorial, the Respondent requests the following relief in Track 1B:
"143. Based on the foregoing, together with the Republic's previous Track I submissions and argument and testimony presented in the November 2012 Hearing on the Merits, the Republic respectfully requests that the Tribunal issue an Award that:
(a) Denies all the relief and each remedy requested by Claimants in relation to Track I, including the relief and remedies requested in Paragraph 32 of Claimants' Supplemental Track I Memorial;
(b) Dismisses on the merits Chevron's claims under the 1995 Settlement Agreement and the 1998 Final Release;
(c) Dismisses on the merits TexPet's claims under the 1995 Settlement Agreement and the 1998 Final Release;
(d) Declares specifically that the Respondent has not breached the 1995 Settlement Agreement or the 1998 Final Release;
(e) Dismisses all of Claimants' claims as they relate to the 1996 Local Settlements, reached between TexPet and local government entities;
(f) Declares that the Lago Agrio Litigation was not barred by res judicata or collateral estoppel;
(g) Awards Respondent all costs and attorneys' fees incurred by Respondent in connection with this phase of the proceedings; and
(h) Awards Respondent any further relief that the Tribunal deems just and proper."
"... (i) whether or not the Respondent has breached Article 5 of the 1995 Settlement Agreement and Article IV of the Final Release; and, if so, precisely what remedies are available to Chevron and/or TexPet against the Respondent in respect of any such breach (i.e. damages, declaratory relief or specific performance);
(ii) whether or not the claims pleaded by the Lago Agrio Plaintiffs rest upon individual rights, as distinct from "collective" or "diffuse" rights (in whole or in part) and whether or not those claims are materially similar to the claims made by the Aguinda Plaintiffs in New York; and
(iii) the specific effect of any changes in Ecuadorian law taking place after the execution of the 1995 Settlement Agreement and the 1998 Final Release, including the interpretation and application of the 1999 Environmental Management Act...".
(The Tribunal also left undecided certain other issues listed in Paragraphs 109 and 110 of the First Partial Award (page 44); but these issues do not require its decision here).
"Pollution of navigable waters which causes death to or contamination of fish constitutes a public nuisance.... It is settled law in this state [New York] that, in the absence of special damage, a public nuisance is subject to correction only by a public authority.... [citations omitted]: ‘It is equally clear, however, that one who suffers damage or injury, beyond the general inconvenience to the public at large, may recover for such nuisance damages or obtain [an] injunction to prevent its continuance. This is old law'... If there is some injury peculiar to a plaintiff, a private action premised on a public nuisance may be maintained [page 3]... "
"It cannot be gainsaid that profound damage common to the entire community has been caused by the pollution of our waters. However, assuming the allegation of the complaint to be true, as we must on a motion to dismiss, the breadth and depth of the tragedy do not preclude a determination that a peculiar or special harm has also been done to these plaintiffs: diminution or loss of livelihood is not suffered by every person who fishes in the Hudson River or waters of Long Island ...; the harm alleged is peculiar to the individual plaintiffs in their capacity as commercial fisherman and goes beyond the harm done to them as members of the community at large [page 4]..."
(1) The Lago Agrio Complaint of 7 May 2003, as an initial pleading, included individual claims resting upon individual rights under Ecuadorian law, not falling within the scope of the 1995 Settlement Agreement (as invoked by the Claimants);
(2) The Lago Agrio Complaint was not wholly barred at its inception by res judicata, under Ecuadorian law, by virtue of the 1995 Settlement Agreement (as invoked by the Claimants); and
(3) The Lago Agrio Complaint included individual claims materially similar, in substance, to the individual claims made by the Aguinda Plaintiffs in New York.