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CERT. MERRILL VER: JD DONZS0002438 Page 1 of 1 Subject: Draft of Closing Legal Brief Friends - Here’s the must updated version of the draft of the Closing Legal Brief. There are still a few things left to do. Juan Pablo Sáenz M. Ofi: 593(2)2273533 Cell: 593(9)6043779 -.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.- www.texacotoxico.org PLAINTIFF’S EXHIBIT 438 11 Civ. 0691 (LAK) CERT. MERRILL VER: JD DONZS0002438 Page 1 of 1 Plaintiff's Exhibit 438 p. 1 of 144 MERRILL CO RPO RATIO N Merrill Communications LLC 225 Varick Street New York, NY 10014 • (2•12) 620-5600 State of New York ) Estado de Nueva York ) ss: ) a saber: County of New York ) Condado de Nueva York Certificate of Accuracy Certificado de Exactitud This is to certify that the attached translation is, to the best of our knowledge and belief, a true and accurate translation from Spanish into English of the attached document. Por el presente certifico que la traducci6n adjunta es, seglin mi leal saber y entender, traducci6n fiel y completa del idioma espafiol al idioma ingles del documento adjunto. Dated: September 11, 2013 Pecha: 11 de septiembre 201 Project Manager - Legal Translations Merrill Brink International/Merrill Corporation [firmado] Kate Alexander Gerente de Proyecto - Traducciones Legales Merrill Brink International/Merrill Corporation Sworn to and signed before Jurado y firmado ante Me, this 11th day of 11 dias del ROBERT J. MAZZA ------ -- Notary Public, State of New York --=-~~~-"------- 2013 No. 01 MA5057911 -+-~~==-=---de 2013 Qualified in Kings County Commission Expires April 1, 2014 Notario Publico [firmado) [sello] OFFICES IN MAJOR CITIES THROUGHOUT THE WORLD Plaintiff's Exhibit 438 p. 2 of 144 From: Juan Pablo Saenz [email protected]] Sent: Thursday, November 11, 2010 7:19 PM To: Pablo Fajardo 2; Steven Dozinger; Steven Danziger Ofi Subject: Borrador Alegato Final Attachments: Borrador_Alegato_Final_Parcial_Envio_EEUU_[11_nov_201 O].docx Amigos, les envfo la version mas actualizada del borrador del Alegato. Hay algunas cosas por hacer todavfa. Juan Pablo Saenz M. Ofi: 593(2)2273533 Cel: 593(9)6043779 -----------------------------------------------------------------------­.I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I www. texacotoxico.orq DONZS00002438 Page 1 of 1 Plaintiff's Exhibit 438 p. 3 of 144 TEXT : CHAPTER I PRIOR MATTERS 1.1 The claim proceeding [CHECK CITATIONS] 1.1.1 The popular action [acción popular] in article 2236 of the Civil Code (old art. 2260) The law in favor of plaintiffs’ claim is grounded in the regulation contained in article 2236 of the Civil Code (CC), which reads as follows: Art. 2236.- As a general rule, popular action is granted to all those cases of contingent damages which, due to imprudence or negligence of one party threaten non-specific parties. Nevertheless, if the harm threatens only specific persons, only one of these persons may bring the action. This regulation contains two exclusionary assumptions: the existence of contingent damages which threaten non- specific persons or contingent damages which threaten exclusively specific persons. The status of the plaintiffs in this legal proceeding is consistent with the first assumption since, in addition to certain specific and determined persons who can and have suffered the alleged harm, there is a large majority of non-specific persons who, due to their circumstances, are exposed to said contingent damages. This leads one to conclude that the plaintiffs fall into the first assumption, thus giving rise to the right to a claim based on the popular action proceeding. It is important to clarify that a popular action constitutes a particular cause of action to exercise general applicable law available to all persons to pursue an indemnity for all damages caused to them, which is contained in arts. 2214 and 2229. Following this line of reasoning, below, we comment and explain the regulations contained in these articles. 1.2. Civil Code Article 2214 CC article 2214 reads as follows: Art. 2214.- He who has committed a crime or unintentional tort which has caused harm to another is obligated to make reparation; notwithstanding the penalty imposed by law for the crime [intentional tort] or unintentional tort. Obviously, the first step in analyzing this regulation will be to define what our code means by the term “crime” and “unintentional tort,” for which we refer to its art. 2184, which speaks of crime and unintentional tort as sources of obligations. According to this article, the illicit act committed with the intention of causing harm (bad faith) is called a crime, whereas the culpable act, committed without the intention of causing harm, constitutes an unintentional tort. Our courts have elaborated considerably on the matter of civil crimes and unintentional torts, sharing the following criteria in at least 3 different judgments emanating from the Supreme Court: (334-99. published in the Official Gazette No. 257 dated August 18, 1999; 297-2000, published in the Official Gazette 140 dated August 14, 2000, Case File 53, Official Gazette 66, April 22, 2003 [case 135-2002], among others: Cite this accurately In accordance with our legal system, he who has committed an illicit act which has caused harm to the person or property of another incurs in the civil liability of paying indemnity to the injured party. The illicit act may constitute the legal definition of a crime [intentional tort] or an unintentional tort. A crime is the act committed with the intention to cause harm, that is with intentional bad faith or malice, which according to the definition contained in the last sub- paragraph of article 29 of the Civil Code, is the intention to cause injury to the person or property or another. Unintentional tort is the illicit act committed with negligence which, according to the third sub-paragraph of the same article, is the lack of that diligence which a man ordinarily employs in the performance of his own business. The same illicit act, then, can constitute both a crime and an unintentional tort and may be penal or civil. The crime or unintentional tort is penal when the illicit act is characterized as a penal violation under the law, and is civil in all other cases. Generally, June 2, 2011 2:32 p.m. Page 1 CERT. MERRILL VER: JD Plaintiff's Exhibit 438 p. 4 of 144 the crime is penal, since the intentional bad faith or malice is one of the elements constituting the criminal action; nevertheless, intentional bad faith acts exist which are not characterized as violations by penal law, in which case the illicit act, despite being malicious or with bad faith, only constitutes a civil crime (emphasis added). The Court has likewise said the following with respect to crimes and unintentional torts when they have been committed by corporations, and with respect to the liability of the latter: The crime and the unintentional tort are illicit acts which cause harm; however, the two definitions which describe conduct are differentiated basically in that the crime is committed with the intention of causing harm, while the unintentional tort is a culpable act which is committed without the intention of causing harm. In a crime, there is bad faith [or] malice, [a] positive intention to cause harm to the person or property of another. On the other hand, in the unintentional tort there is no intention to cause harm, but rather neglect, imprudence, negligence, lack of diligence or due care. There is no doubt that in the conduct of corporations through the actions of its managers, the existence of an unintentional tort generates civil liabilities the source of which is liability subject to the conditions of the existence of harm caused by the negligence, the causal relationship between the fault and the harm; and the capacity of the active subject. 1 The aforementioned means that, for the Supreme Court, both the crime and the unintentional tort are illicit acts, differentiated exclusively by the will to cause harm or, the absence thereof, by the party causing such harm. Under this logic, the next step thus consists of establishing what our case law understands by “illicit act.” The answer is found in the decision of the First Civil and Mercantile Division of the Supreme Court dated October 29, 2002, when the Court states that: The Civil Code, which has followed the basic doctrine, refers to illicit acts as being not only the personal acts or omissions of the responsible party who has intentionally or culpably caused harm to a third party […], but also the harm caused by persons for whom they are responsible, under their care or who are dependent on them, […] or of the appurtenances which are owned by him or of which he avails himself. In short, this quote establishes that illicit acts are those personal acts or omissions which, fraudulently or culpably, have caused harm to a third party. The reasoning set forth in the preceding paragraphs, applied to this legal proceeding is thus: 1. The illicit act causing the harm claimed, that is the “act or omission” which may be classified as a crime or an unintentional tort, according to the presence or absence of intentional bad faith, is the contaminating action inherent in Texpet’s operations in the Napo Concession. This means, Your Honor, that within the applicable logic, the environmental impacts discussed here (pits, formation water, etc.) cannot be considered a mere consequence of Texpet’s operations; to the contrary they are elements inherent in the design of the oil company's operations.
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