Many thanks to Ted Folkman and the symposium contributors for a rich discussion. Here I respond to Aaron Page’s post. Later I will comment on Ted’s posts and comments addressed to me.
In Page’s rhetorical view, the fraud in the Ecuadorian litigation against Chevron was a triviality in a teapot that should not deter US judges from enforcing the resulting Judgment. He defends his co-counsel by implying that they are merely innocent inhabitants of an imagined worldwide conspiracy. He goes so far as to suggest that impugning Ecuador’s battered judiciary is “racist”. Each point merits a response.
First, Page hyperbolizes that “[e]very argument Chevron lost at trial” in Ecuador becomes an instance of fraud. Yet the examples in my post—plaintiffs’ forging and falsifying their own expert’s testimony; their ghost writing the testimony of the court’s “independent” expert; their paying him hush money from a secret account; and their Judgment, portions of which can only have come from plaintiffs’ internal files—would be fraud in any court.
Second, Page takes comfort in the possibility that the fraud was “intrinsic” fraud (as opposed to “extrinsic” fraud), and hence not a ground for non-enforcement of the Judgment in the US under the 1962 Uniform Act. If plaintiffs had committed their fraud unilaterally, and deceived the Ecuadorian courts, Page would clearly be right: that would be intrinsic fraud. But in fact, the evidence indicates that plaintiffs acted in collusion with the Ecuadorian court. Because the fix was in, Chevron did not have an adequate opportunity to present its case. The collusive fraud was thus arguably “extrinsic fraud,” which is grounds for non-enforcement under both the 1962 and the 2005 Acts.
In any event, as Page recognizes, under the 2005 Act, intrinsic fraud may be grounds for non-recognition when it amounts to “circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment,” or the proceeding “was not compatible with the requirements of due process of law.” Plaintiffs’ fraud in Ecuador easily meets both standards.
In addition, at least under the 2005 Act, the Ecuadorian Judgment should be unenforceable in the US for violating public policy. As the commentary explains, “Public policy is violated … if … enforcement of the foreign-country judgment would tend clearly to injure … the public confidence in the administration of law, or would undermine ‘that sense of security for individual rights, whether of personal liberty or of private property, which any citizen ought to feel.’” Again, the collusive fraud in Ecuador meets both standards.
Page next complains that his co-counsel are being vilified as members of an imagined worldwide conspiracy that includes “all” plaintiffs’ lawyers, “including such prominent firms as Patton Boggs.” For a “full roster of the conspiracy,” Page refers readers to my post. In fact, my post explicitly alleged misconduct only by “some (not all) of plaintiffs’ lawyers.” And as Page well knows, I have expressly exempted both Patton Boggs and Page from any accusations of misconduct. As stated in my publicly posted reply to his earlier letter,
References herein to plaintiffs’ lawyers, and to the misconduct specified herein, do not include the law firm of Patton Boggs or any of its lawyers who represent plaintiffs in various proceedings before U.S. courts, Forum Nobis PLLC [Page’s law firm] or any of its lawyers, or other law firms and lawyers who began to represent plaintiffs only recently.” I likewise do not suggest that those law firms or lawyers participated in the misconduct described in this letter. …
Finally, Page complains that US judges are apt to give more credence to British than to Ecuadorian courts. “This sort of double standard,” he objects, “is inappropriate and troubling. To be blunt, it is seen by the Ecuadorians as part and parcel of the arrogant and even racist mentality …”
But to admit that Ecuador’s judiciary is not equal to Britain’s is not racism; it is reality. For example, the current State Department Country Report on Human Rights in Ecuador reports “credible allegations” that
verdicts delivered by judges were not actually written by them. In the libel suit brought by President Correa against the newspaper El Universo … the presiding judge published a 156-page decision 25 hours after the hearing. In similar cases such decisions usually take at least two weeks (and often significantly longer) to produce. The defendants alleged that the decision was not written by the presiding judge, but rather copied onto the judge’s computer from an external memory device.
Does that sound like a judiciary equal to Britain’s?
And if Page’s point is that not that he, but that Ecuadorians, have high regard for their judiciary, he should consult Ecuadorians. According to Latinobarometro, only three in ten Latin Americans have confidence in their judiciaries. The figure is almost certainly lower in Ecuador.