In the case of María Aguinda and others v. ChevronTexaco Corporation, in accordance with Art. 42 of the Ley de Gestión Ambiental, we stand before you with the aim of being heard by the Court, for this purpose we say:

We, amici curiae, are professionals – academics and practitioners – in the Civil Law of Ecuador, each one of us with a wealth of experience in legal processes involving litigants of scare economic resources and other vulnerable groups, we submit this brief, with great respect for the President of the Superior Court of Lago Agrio, to express our most sincere concern, founded in our professional experience with other cases, that the case referenced above is developing in a manner inconsistent with procedural principles of economy, expedience and efficiency, which are enumerated in the Ecuadorian Constitution specifically to protect litigants with scarce economic resources and other vulnerable groups.

To safeguard the rights of such persons, the Constitution recognizes as a procedural guaranty the principle of judicial economy.  According to this principle the judge or tribunal is obligated to manage the judicial process in the most favorable manner, eliminating the practice of unnecessary procedures and prohibiting the repetition of procedures already completed.  In the same vein, the principle of judicial economy includes the duty of the judge to ensure that procedural costs do not needlessly accrue.  Legal scholar Lino Palacio tell us that this principle, “includes all of those foresights that tend toward the abbreviation and simplification of the process, avoiding unreasonable prolongation which renders institutional  protection of the procedural rights and interests the principle guarantees ineffective.” [1] Ineffective institutional protection of rights and interests is likely to occur if the prolongation of this case is permitted because an economically powerful opponent can easily turn the case into a competition of fortunes, which people of scarce resources will always lose.

Beyond the direct costs implicated by trial, another fundamental issue of judicial economy is that of time.  Time, in this sense, is a period in which the parties and the government must take great efforts, apart from the economic and logistical work it takes to maintain pending litigation, and tribunals are obligated by the principle of judicial economy to prevent this waste of time, resources and effort. [2]

Other principles guaranteed in the Political Constitution of Ecuador are those of expedience and efficiency, which doctrinally are considered derivations of the principle of judicial economy.  In Article 23, section 27, the rights to due process and a speedy trial are established at a constitutional level.  The right to a fair trial without needless delay appears in the first chapter – General Principles – of Title VIII – Judicial Function – of the Constitution, which, in article 192, establishes the general manner in which the judicial process will safeguard the guaranty of due process and ensure compliance with the principles of expedience and efficiency in the administration of justice.  Furthermore, Article 193 stipulates textually that “Procedural laws protect the simplification, uniformity, effectiveness and agility of the judicial process.” Thus, the validity of these principles under Ecuadorian law is beyond any doubt, rendering the application of the principles obligatory for the proper functioning of the judiciary.

It is thus that the Ecuadorian legal system is designed to resolve civil controversies as quickly as possible, utilizing as few resources as possible (as much for the good of the State as for that of the litigating parties) – without neglecting the fulfillment of other due process guarantees.  The conservation of resources is in the best interest of all Ecuadorians, and is especially important to disadvantaged individuals or communities who surely do not possess the resources necessary to stand trial if doing so requires excessive and unnecessary costs.  Permitting the delay of trial for procedures that will have no effect on the resolution of contested issues opens the door to immunity for the economically powerful who can prolong a trial in such a way as to convert it into a competition of economic possibilities.   Facing this threat, procedural guarantees and constitutionally established principles play a very important role.

In fact, for the individuals and communities of scarce resources who we generally represent, the principles of judicial economy, expedience and efficiency, are much more than empty concepts or idealist aspirations to be applied when convenient.  Rather, these principles are fundamental procedural tools that protect due process and effective access to justice before the courts of Ecuador.

We submit to you as amici curiae that over the last three years we have followed the development of Aguinda v. ChevronTexaco and can confirm, as the Court knows, that the case is monumental and that as such it continues to grow at an uncontrollable pace as new elements of the dispute surface.  We have thus observed that:

•    The record now contains more than 100,000 pages;
•    A large part of this voluminous document is “evidence” repeated many times in various expert reports: we are certain that several reports submitted by experts exceed 1500 pages in length and contain annexes that are attached without alteration to numerous submissions;
•    The evidence presented during the inspections has also been needlessly repeated: specifically the plaintiff’s repetitious defense of the environmental policy of the era – which did not change throughout all the years defendants operated in the Amazon – that is identical at all of the sites inspected.

We can also confirm the existence of various efforts taken by the plaintiffs to prevent the process from being prolonged unnecessarily, including the presentation of a motion expressly renouncing the practice of various evidentiary procedures, which, according to plaintiffs themselves, are not necessary to the outcome of the case.  In effect, by means of this motion, presented January 27, 2006 at 17H10 and found at pages 92,442 – 92,444 of the record, the plaintiffs resolved to renounce several inspections at sites Sacha and Shushufindi, inspections they exclusively solicited against the will of the defense.

This renouncement constitutes a gesture demonstrating the confidence plaintiffs have in the evidence already gathered, and their consequent application of the procedural principles used to avoid more evidentiary processes that will result in the acquisition of the same facts already proved.  In plaintiffs’ opinion, their case has been made, and the continued pursuit of evidence will not “prove more,” as such a feat is unnecessary.  In fact, plaintiffs consider continued evidentiary procedures (of exclusive interest to themselves) to unnecessarily prolong the judicial process, and renunciation of such procedures are expressly within their rights.  We should stress to Your Honor, that in conformity with Article 11 of the Civil Code, any party may renounce his rights and such a renouncement shall not be prohibited if it affects the renouncing party’s rights alone.  The Supreme Court, with regard to means of defense such as the practice of judicial inspections in this case, has resolved that a “renouncement can be legally made when it affects rights which are strictly personal.” (Gaceta Judicial. Año LX. Serie VIII. No. 14. Pág. 1323)

We can also confirm another issue of concern directly relating the renouncement above referenced: the defendants, in response to the plaintiff’s renunciation, decided to nevertheless solicit the completion of all of the inspections renounced.  We consider this maneuver illegal and disloyal, serving only to delay the judicial process.  The rate at which this case has moved in the past years makes it reasonable to assume that the completion of the renounced inspections could result in 4 additional years of litigation, costing hundreds of thousands of additional dollars and prohibiting any form of economy or efficiency in plaintiffs’ access to justice.

We believe that if defendants possessed any interest whatever in the renounced inspections, said inspections should have been requested at the appropriate time – in the evidentiary phase of the trial.  The right to request that an evidentiary procedure be realized must be expressed in a timely fashion, and defendants not only failed to file a timely request, but furthermore opposed the  inspections plaintiffs now wish to renounce; because of this their petition is fundamentally lacking insofar as defendants possess neither the right nor the requisite interest to challenge the renunciation.  

We fear that defendants’ unfounded petition to compel the inspections is part of a reoccurring strategy in the courts of Ecuador: the Ecuadorian judicial system can be evaded by the party with superior wealth.  We have been made aware that in a case recently brought against the Occidental Petroleum Corporation – with which Your Honor may be familiar – the lawyers working on defendants’ behalf have advised counsel for the defense in that case to solicit 92 judicial inspections.  This is irrefutable evidence of the disloyal intentions of the defense to take advantage of the judicial process in order to avoid justice.
 
However, in this particular case we do not fear that counsel for the defense will solicit excessive inspections given they discovered that “strategy” after the appropriate moment had passed.  Rather, we fear that they have become aware of the benefit they could reap from their economic advantage over the plaintiffs (by means of improper prolongation of the trial), and are now pretending to exercise a personal right by requesting inspections they previously opposed (when they could have solicited them) as “illegal” and “impertinent”.

To the truth of what we have herein described you are a witness, Your Honor: the plaintiffs, with full confidence in the evidence already on record and convinced of the impertinence of further inspections, voluntarily decided to renounce the personal procedural right to proceed with inspections exclusively in their own interests; the defendants have solicited that the inspections continue, after having opposed the inspections when they had the opportunity to request them, making it beyond clear that they have no real interest in the completion of these evidentiary procedures.
 
To better explain our position, we should point out that in civil law, procedural principles have a specialized application based primarily on the fact that Ecuadorian civil system is a dispositive one, and in such a system, as opposed to in an inquisitive system, the parties have control over the  evidentiary aspect of the trial[3] manifested in their contribution of evidence to the record: in other words, the parties chose what evidence to use to prove their case.  The judge, only as an exception, may mandate the production of particular evidence. (118 CPC)[4].

In the subject of civil law, the party that asserts a fact bears the burden of proving it, according to Article 112 of the Code of Civil Procedure.   The means and form of proof may be chosen liberally by the parties, and that which they chose to present is to be explained in an independently written memorandum submitted to the court at the appropriate juncture. It is then incumbent upon the parties to drive the process forward; for every piece of evidence solicited, the parties themselves are responsible for the production of said evidence.  Accordingly, the party that made a timely solicitation for evidence may later decide not to include that evidence in its case.  In this sense, it is clear that the party that requested the evidence in a timely manner is not obligated to produce it, nor may the judge compel its production.

The system guarantees the parties the right to bring forth the evidence for which they made a timely request, but this right is founded in the procedural interest of proving every issue alleged. What each party does in the evidentiary phase of trial is exercise its right to request the proof it believes to be in its best interest at the correct procedural time.  Without exercising this right in a timely fashion, the party forgoes its opportunity to request unsolicited evidence.  Only those who submit timely petitions expressing their particular interest in proof have the right to demand that such evidence be produced; otherwise, the party renounces its right.

With respect to recorded evidence, we must note that only after the evidence has been produced does it become incorporated into the official record.  No party may claim rights or benefits of proof that has not yet been produced as such evidence is not yet on record; until the evidence is officially incorporated, it only exists as a request and not as rights-bearing evidence.  The right to solicit the production of requested evidence is completely at the behest of the soliciting party or parties that have expressed, in a timely fashion, their interest in said evidence.

In our capacity as professionals in the area of the law, we are alarmed that although these procedural principles are guaranteed in every judicial process in Ecuador, and that although according to the law and to the Supreme Court renunciation is a legally viable form of defense, in this case plaintiffs’ renunciation of inspections that affect their rights alone has not been accepted. This result is particularly alarming considering that there is no procedural norm prohibiting renunciation, and what is more, it has been practiced many times in other cases: it is both practical and common.  There are many judicial processes – as many civil as criminal – in which every piece of evidence pleaded is not brought onto the record because sufficient proof of a cause of action already exists, a fact which has never been placed in doubt by national or international magistrates.
 
To conduct a trial according to the principles of economy, expedience and efficiency may be difficult in some cases – especially when one party shows a relentless intention to abuse institutional procedures.  However, in this case concerned, such difficulties do not exist.  Facing any doubt regarding the interpretation of the articles of the Code of Civil Procedure, we must follow the procedural principles codified in the Constitution and doctrinally developed, and in the words of author Dr. Lino E. Palacio, apply these interpretive tools of immeasurable  value (Lino Palacio, 63).

The signatories of this letter fear that economically powerful groups have discovered the path to impunity within the Ecuadorian system because of the failure to apply certain procedural principles.  This failure could allow the process to become a decade-spanning, multi-million dollar dispute.
 
By virtue of the material herein presented, we ask that you accept the plaintiffs’ renunciation.
 
[1] Palacio, 63

[2] Vescovi, 58

[3] The contribution of evidence is one of the elements of a dispositive system: others are initiative, availability of legal material, procedural drive, delimitation of thema decidendum y contribution of the facts.

[4] 66 Lino Palacio