Day 12 of This Hearing
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Sheet 1 2498 IN THE MATTER OF AN ARBITRATION BEFORE A TRIBUNAL CONSTITUTED IN ACCORDANCE WITH THE TREATY BETWEEN THE U.S.A. AND THE REPUBLIC OF ECUADOR CONCERNING THE ENCOURAGEMENT AND RECIPROCAL PROTECTION OF INVESTMENT, SIGNED AUGUST 27, 1993 (THE "TREATY") and THE UNCITRAL ARBITRATION RULES 1976 - - - - - - - - - - - - - - - - - -x In the Matter of Arbitration : Between: : : CHEVRON CORPORATION (U.S.A.), : TEXACO PETROLEUM COMPANY (U.S.A.), : : Claimants, : PCA Case No. : 2009-23 and : : THE REPUBLIC OF ECUADOR, : : Respondent. : - - - - - - - - - - - - - - - - - -x Volume 12 TRACK 2 HEARING Thursday, May 7, 2015 The World Bank 700 18th Street, N.W. J Building Conference Room JB1-080 Washington, D.C. 20003 The hearing in the above-entitled matter convened at 9:00 a.m. before: MR. V.V. VEEDER, Q.C., President DR. HORACIO GRIGERA NAÓN, Arbitrator PROFESSOR VAUGHAN LOWE, Q.C., Arbitrator Worldwide Reporting, LLP 529 14th Street S.E. Washington, D.C. 20003 +001 202-544-1903 Sheet 2 2499 2501 Registry, Permanent Court of Arbitration: APPEARANCES: (Continued) MR. MARTIN DOE, Secretary to the Tribunal Representing Chevron Corporation and Texaco Petroleum Company: Additional Secretary: MR. HEWITT PATE MS. JESSICA WELLS MR. MATTHEW FRIEDRICH Court Reporters: MR. JOSÉ LUIS MARTIN MR. DAVID A. KASDAN Registered Diplomate Reporter (RDR) MR. RICARDO REIS VEIGA Certified Realtime Reporter (CRR) Worldwide Reporting, LLP MS. SARA McMILLEN 529 14th Street, S.E. Washington, D.C. 20003 MR. ANDRES ROMERO United States of America (202) 544-1903 MS. TANYA VALLI [email protected] SR. VIRGILIO DANTE RINALDI, S.H. D.R. Esteno Colombres 566 Buenos Aires 1218ABE Argentina (5411) 4957-0083 [email protected] Interpreters: MR. DANIEL GIGLIO MS. SILVIA COLLA 2500 2502 APPEARANCES: APPEARANCES: (Continued) On behalf of the Claimants: On behalf of the Respondent: MR. R. DOAK BISHOP DR. DIEGO GARCÍA CARRIÓN, MR. WADE CORIELL Attorney General MS. TRACIE RENFROE DRA. BLANCA GÓMEZ del la TORRE MS. CAROL WOOD DR. FELIPE AGUILAR LUIS MR. DAVID WEISS DRA. DANIELA PALACIOS MR. ELDY QUINTANILLA ROCHÉ DRA. MARÍA TERESA BORJA MS. ANISHA SUD Counsel, Attorney General's Office MS. SARA MCBREARTY Procuraduría General del Estado MS. JAMIE MILLER Robles 731 y Av. Amazonas MS. VIRGINIA CASTELAN Quito, Ecuador King & Spalding, LLP 110 Louisiana Street, Suite 3900 MR. ERIC W. BLOOM Houston, Texas 77002 MR. TOMÁS LEONARD United States of America MR. MARK BRAVIN MS. NICOLE SILVER MR. EDWARD G. KEHOE MR. ALEX KAPLAN MS. CALINE MOUAWAD MR. GREGORY EWING MS. ISABEL FERNÁNDEZ de la CUESTA MR. ERIC GOLDSTEIN MR. JOHN CALABRO MS. CAROLINA ROMERO ACEVEDO MS. JESSICA BEESS UND CHROSTIN MS. CRISTINA VITERI TORRES King & Spalding, LLP MS. CHRISTINE WARING 1185 Avenue of the Americas MR. JEFF JOHNSON New York, New York 10036-4003 MR. ERIC WERLINGER United States of America MR. PETER OSYF MR. SCOTT PHILLIPS MR. BRIAN A. WHITE MS. KATHY AMES VALDIVIESO MS. ELIZABETH SILBERT Winston & Strawn, LLP King & Spalding, LLP 1700 K Street, N.W. 1180 Peachtree Street Washington, D.C. 20006 Atlanta, GA 30309 United States of America United States of America MR. RICARDO UGARTE MR. JAN PAULSSON MS. NASSIM HOOSHMANDNIA MR. LUKE A. SOBOTA Winston & Strawn LLP Three Crowns, LLP Grand-Rue 23 2001 Pennsylvania Avenue, N.W. Geneva 1204 Washington, D.C. 20005 Switzerland United States of America Worldwide Reporting, LLP 529 14th Street S.E. Washington, D.C. 20003 +001 202-544-1903 Sheet 3 2503 2505 1 P R O C E E D I N G S APPEARANCES: (Continued) 2 PRESIDENT VEEDER: Good morning, ladies and On behalf of the Respondent: 3 gentlemen. We'll start Day 12 of this Hearing. PROF. EDUARDO SILVA ROMERO 4 There are certainly a few housekeeping matters, PROF. PIERRE MAYER MR. JOSÉ MANUEL GARCÍA REPRESA 5 although we prefer to deal with them later rather than now, MS. AUDREY CAMINADES MS. GABRIELA GONZÁLEZ GIRÁLDEZ 6 but we await the agreed order that we discussed two days Dechert LLP 7 ago as regards the nonconfidential status of the Expert 32 rue Monceau 75008 Paris 8 Reports. France 9 And, secondly, the Tribunal's Secretary sent the MR. ÁLVARO GALINDO CARDONA 10 Parties a Draft Procedural Order 36 relating to the site MR. DAVID ATTANASIO Dechert LLP 11 visit that we are very anxious to conclude, if we can, 1900 K Street, N.W. Washington, D.C. 20006 12 today, so any comments back from you would be welcome at United States of America 13 the end of the lunch break, and then I hope we can put it MR. BRIAN CUMMINS 14 to bed. LitOptix 15 Apart from that, are there any other housekeeping 16 matters? We ask the Claimants first. 17 MR. BISHOP: None from the Claimants. 18 PRESIDENT VEEDER: And the Respondent? 19 MR. BLOOM: Nor from the Respondent. 20 PRESIDENT VEEDER: Thank you very much. We give 21 the floor to the Claimants for their closing oral 22 submissions. We'll take our usual breaks. We anticipate 23 finishing, I think as the Parties said, by 5:30 today. 24 MR. BISHOP: Yes, Thank you, Mr. President. 25 CLOSING ARGUMENT BY COUNSEL FOR CLAIMANTS 2504 2506 08:59 1 MR. BISHOP: I'm going to try in the next 15 C O N T E N T S 2 minutes to put the Lago Agrio Case into some perspective PAGE 3 and to give you a roadmap as to where our presentation will CLOSING ARGUMENTS ON BEHALF OF THE CLAIMANTS: 4 go today. By Mr. Bishop 2506 5 The Lago Agrio Case was fatally defective at its By Ms. Renfroe 2516 6 very inception. All diffuse environmental claims had 7 already been settled, TexPet had properly remediated its By Mr. Coriell 2525 8 share of the sites, and the government had approved that By Mr. Weiss 2559 9 remediation at every site. The case was filed against the By Mr. Paulsson 2570 10 wrong party in Chevron, and the Plaintiffs had agreed not By Ms. Renfroe 2607 11 to sue the Government or Petroecuador, so they tried to By Mr. Bishop 2634 12 ignore their responsibility. 13 Now, when Steven Donziger took over as lead By Ms. Mouawad 2651 14 counsel in 2005 for the Lago Agrio Case, the case quickly By Ms. Silbert 2668 15 turned into an extortionate scheme involving an aggressive By Mr. Bishop 2680 16 public relations campaign, falsified data, the falsified By Mr. Kehoe 2708 17 Expert Reports of Dr. Calmbacher, the bribery of Cabrera, By Mr. Paulsson 2735 18 and the ghostwriting of his supposedly independent expert 19 reports, intimidation of judges, and the bribery of Judge By Mr. Pate 2753 20 Zambrano, and the ghostwriting of both his Court Orders and 21 the Judgment. 22 In this process, the laws and the Constitution of 23 Ecuador were trampled. But what was lost even more was any 24 semblance of the truth, the objective facts, ethical 25 restraints in any sense of proportion in the case. Worldwide Reporting, LLP 529 14th Street S.E. Washington, D.C. 20003 +001 202-544-1903 Sheet 4 2507 2509 09:00 1 The Lago Agrio Plaintiffs' lawyers' descent into 09:03 1 key evidence in this case is undisputed. For example, 2 an ethical hell is rather astounding, but what's most 2 Ecuador said in the Opening Statement, and I quote it: "To 3 shocking about this case has been the State's role in it. 3 be clear, the Republic does not dispute the text from some 4 President Correa adopted the Plaintiffs' case as a national 4 of the Plaintiffs' documents appears in the Judgment as 5 cause. He committed the Government to that case, and he 5 Claimants have identified." 6 began an aggressive campaign to influence the Court's 6 So, it's undisputed that the Plaintiffs' own 7 decisions, and it's clear that successive judges were 7 internal documents are copied into the Judgment. And no 8 influenced as every judge after President Correa was 8 one has found those documents that we pointed to anywhere 9 elected made clearly biased decisions that denied due 9 in the Court Record. 10 process to Chevron. 10 So, Ecuador goes further and also says in the 11 When the $18 billion Judgment was issued and the 11 Opening Statement, and I quote it again: "It's quite 12 fraud and the corruption was revealed, the State, through 12 impossible under these circumstances for any person to know 13 both the Government and its courts, refused to stay the 13 the universe of the lawfully submitted documents." 14 enforcement of the Judgment, despite that evidence and 14 The ghostwriting of the Judgment is clear; and, as 15 despite the Interim Awards of this Tribunal. The 15 a result, Ecuador is forced to resort to an opportunistic 16 Government also refused to investigate Chevron's claims or 16 any port in the storm defense, that the Court record was 17 to prosecute or punish any of the principals behind the 17 kept by the Clerk in such a sloppy manner that no one could 18 scheme. And the appellate courts affirmed the Judgment and 18 know what documents were filed or were not filed. 19 certified it as enforceable without ever reviewing or 19 But what's not clear about this is why Ecuador 20 deciding the claims of fraud and corruption. 20 could possibly believe that's a defense. It would not be a 21 And the Government has even adopted and 21 defense at a $9,000 case, and it's certainly not a defense 22 aggressively promoted the enforcement of the Judgment as a 22 in a $9 billion case.