In a lengthy and fascinating opinion, Judge Kaplan explores the enforceability of foreign judgments in Chevron v. Doniger, 11 Civ 0691. The opinion concerns a motion by Chevron to enjoin a multti-billion dollar judgment entered in Ecuador for extensive damage to the rain forest, and indigenous cultures in Ecuador, and which provided for a doubling unless Chevron issued a public apology to the Ecuadorian plaintiffs (which it did not).
Generally speaking, the standards for enjoining an award from a foreign tribunal are daunting. The foreign award must be shown to have been procured without due process or by fraud. But as Judge Kaplan notes, this is an “extraordinary case,” and the level of evidence developed by Chevron is “extensive.”
Judge Kaplan found significant that much of the evidence was developed from the Ecuadorian parties’ New York lawyer who commissioned a documentary about the case, and circulated his own book proposal. The court found that he “attempted to (1) intimidate the Ecuadorian judges, (2) obtain political support for the Ecuadorian lawsuit, (3) persuade the [Government of Ecuador] to promote the interests of the Lago Agrio plaintiffs, (4) obtain favorable media coverage, (5) solicit the support of celebrities (including Daryl Hannah and Trudie Styler) and environmental groups, (6) procure and package ‘expert’ testimony for use in Ecuador, [and] (7) pressure Chevron to pay a large settlement…”
Chevron obtained access to damning outtakes from the documentary, including the lawyer’s videotaped comment that “They’re all [i.e., the Ecuadorian judges] corrupt! It’s- it’s their birthright to be corrupt.” Also pertinent was Judge Kaplan’s finding that the enforcement strategy devised by the American attorneys for the Ecuadorian plaintiffs was designed primarily to coerce Chevron to settle the case to avoid injury to its business reputation and relationships, rather than to collect on the judgment, which Chevron otherwise could pay. The court found that a preliminary injunction preventing enforcement was necessary to protect Chevron from the “coercive effect of multiple proceedings… [and] distractions and other burdens of defending itself in multiple fora…”
The judge recognized that the case involved “posturing on both sides,” and that although the court had an extensive record, it was not a complete record. Yet, Judge Kaplan found sufficient evidence to grant the extraordinary remedy of preliminarily enjoining enforcement of the Ecuadorian judgment anywhere in the world, recognizing that “a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.”