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Rebuttal Report- Sandra Elena

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Table of Contents A. Summary of Conclusions ............................................................................................ 1 B. The Albuja Martínez, Binder and Arias Salgado Reports from 2008 are Outdated - Events Subsequent to October 2008 are Critical to Assessing the Lack of Impartiality of the Ecuadorian Judicial System ............................................................................................................ 3 C. The Albuja Martínez, Binder and Arias Salgado Reports Do Not Demonstrate That the Judicial Reform Process had any Positive Impact on the Judicial System in Ecuador ............. 6 D. Ecuador’s Judicial System is the Worst in All of Latin America................................ 9 E. Final Conclusions ...................................................................................................... 13 Exhibit A ……………………………………………………………………………………... 14 Exhibit B – Considered Documents .............................................................................................. 15
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Page 1: Rebuttal Report- Sandra Elena

Table of Contents

A.  Summary of Conclusions ............................................................................................ 1 

B.  The Albuja Martínez, Binder and Arias Salgado Reports from 2008 are Outdated -

Events Subsequent to October 2008 are Critical to Assessing the Lack of Impartiality of the

Ecuadorian Judicial System ............................................................................................................ 3 

C.  The Albuja Martínez, Binder and Arias Salgado Reports Do Not Demonstrate That

the Judicial Reform Process had any Positive Impact on the Judicial System in Ecuador ............. 6 

D.  Ecuador’s Judicial System is the Worst in All of Latin America ................................ 9 

E.  Final Conclusions ...................................................................................................... 13 

Exhibit A ……………………………………………………………………………………... 14 

Exhibit B – Considered Documents .............................................................................................. 15 

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A. Summary of Conclusions

1. In my previous report, I concluded that “the Ecuadorian judicial system does not provide

impartial tribunals. Every single indicator and index available for assessing this issue reflects a lack

of independence and existence of corruption in the Ecuadorian judicial system, often in extreme

degrees. My review of the Ecuadorian institutional arrangements and legal practices consistently

led me to the same conclusion. Due to political manipulation, key judicial institutions suffer from

instability. The recent radical changes in the Ecuadorian constitutional framework affecting the

judicial system have undermined judicial independence, judicial integrity and judicial

impartiality.”1 Events in Ecuador that have occurred since I filed my initial report have only

confirmed this conclusion. In fact, some of the events that have transpired in the past weeks alone

demonstrate the pervasive nature of political interference with the Ecuadorian judiciary, and, as a

result, the lack of impartial tribunals in Ecuador.

2. I understand that, in 2008, Marco Vinicio Albuja Martinez, Alberto Martín Binder and Dra.

Alicia Arias Salgado submitted expert reports in connection with the arbitration under UNCITRAL

arbitration rules between Chevron Corporation and Texaco Petroleum Company, and the Republic

of Ecuador, which opined on the state of the Ecuadorian judiciary. These reports do not

successfully challenge my conclusions about Ecuador’s lack of impartial tribunals, nor are their

conclusions about the state of Ecuador’s judiciary accurate.

1 Expert Report of Sandra Elena (“Elena Report”), June 30, 2011, ¶ 8. In that report please find a full list of my qualifications, my publications for the last ten years, and a statement of my compensation, which is again $300 per hour for my work on this report. Attached to this report, as Exhibit B, is a list of the materials I relied upon in this report.

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3. In reviewing these reports, a number of shortcomings were immediately apparent to me. In

my opinion, for reasons I will discuss in this report, none of these three expert reports are

persuasive, timely or accurately speak to the issue of whether Ecuador lacks impartial tribunals.

4. Among the many flaws in these reports, I will discuss the following below: (1) all the

reports are outdated; (2) these reports praise the judicial reform processes that took place in

Ecuador, without accurately discussing or analyzing whether these processes had any positive

impact on the judicial system in Ecuador – they did not; and, (3) that unlike the claims made in at

least one of these reports,2 that Ecuador’s judicial system is the worst in all of Latin America.

5. First, the reports are outdated. All three were filed prior to October 2008, and the events

subsequent to October 2008 are critical to assessing the lack of impartiality of the Ecuadorian

judicial system. Since the end of 2008, Ecuador’s judicial system has faced numerous radical

upheavals, such as the mass resignation of the Supreme Court, which once again resulted in an

entirely new composition of the Court, and the replacement of the Judicial Council twice in three

years, among others. In addition, political interference with the judicial branch has continued to

undermine judicial independence.

6. Second, while all three reports discuss at length a judicial reform process that has taken

place in Ecuador, none of the reports accurately analyze whether this process had any positive

impact on the judicial system. Indeed, the data and analysis presented in my previous report shows

that the judicial reform movement in Ecuador has failed to create an impartial, independent and

honest judiciary.

2 Expert Opinion of Alberto Martín Binder (“Binder Report”), Sept. 22, 2008, ¶ 3.

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7. Third, I have demonstrated that Ecuador’s judicial system is the worst in all of Latin

America. It does not, as Binder claims, operate within parameters that are customary throughout

the Latin American region. Even if the reform efforts and the judicial policies are similar all over

Latin America, as claimed by Binder in his report, the results achieved in terms of judicial

impartiality vary dramatically from country to country. While countries like Chile or Costa Rica

have obtained positive results from their judicial reform processes, Ecuador has not. Indeed, in all

of Latin America, Ecuador has the worst judicial system.

B. The Albuja Martínez, Binder and Arias Salgado Reports from 2008 are Outdated - Events Subsequent to October 2008 are Critical to Assessing the Lack of Impartiality of the Ecuadorian Judicial System

8. These reports were all drafted and filed prior to October 2008. As such, all three are

outdated and cannot be use to establish or assess the state of Ecuador’s judicial system. They do

not provide any information related to the facts and events that happened beginning in October

2008 to the present, an understanding of which are critical to assess the lack of impartiality of the

Ecuadorian judicial system.

9. The events that occurred beginning in October 2008 are especially important to any proper

analysis of the independence and impartiality of the Ecuadorian judicial system.

10. In October 2008, after a constitutional reform was passed, all 31 Ecuadorian Supreme Court

Justices resigned. As a result, the Supreme Court was effectively changed once again. As

discussed in my initial expert report, the composition of the Supreme Court had already completely

changed on two prior occasions, resulting in three different Supreme Courts in a one year period

(from December 2004 to November 2005). These facts show the precariousness of the judicial

system in Ecuador. In fact, with the mass resignation of the Supreme Court in 2008, and its

wholesale replacement, four entirely different Supreme Courts have now existed in Ecuador during

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the course of the Lago Agrio litigation. This type of volatility, as discussed in my prior report,

creates conditions that foster a lack of judicial independence and impartiality.

11. In 1992, the Judicial Council was created in Ecuador through a constitutional reform.

According to Binder, demonstrates that Ecuador “is concerned with developing a more transparent,

efficient and independent Judiciary.”3 In April 2011, “the Judiciary Council’s members were

subjected to impeachment proceedings by the Assembly, but . . . there were not enough votes to

remove them from office thanks to favors ‘that they are paying off,’” as President Correa recently

noted.4 Then, in May 2011, in a referendum supported by President Correa, the majority of

Ecuadorians voted to remove the members of the Judicial Council and replaced it with a Technical

Committee of three politically appointed members. Even President Correa has recently stated that

the Judicial Council “is outrageously inept, lacking in transparency and dishonest.”5 On top of the

fact that this statement is a clear indictment of Ecuador’s failing judicial system, it is also

representative of the current administration´s ongoing political interference with the judiciary.

These events evidence the failure of the Judicial Council to achieve independence and transparency

of the Ecuadorian judiciary, which according to Binder was “[t]he raison d’être of such Councils.”6

12. Another example of the political interference the government of Ecuador exerts over the

judicial system is the manner in which President Correa makes use of the courts to further his own

personal and political interests. As The Economist stated,“ [f]or a man who calls his country’s legal

system dysfunctional and corrupt, Rafael Correa, Ecuador’s president, has fared remarkably well

3 Binder Report, ¶ 13. 4 Correa Denounces Dishonest Judiciary Council [Correa denuncia a una Judicatura deshonesta], EL TELÉGRAFO, July 13, 2011. 5 Id. 6 Binder Report, ¶ 13.

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before the courts.”7 The article went on to note that, “[o]n July 20th he was granted a far larger

$40m judgment in a libel case against a columnist for the El Universo newspaper and three of the

company’s directors, in a ruling that free-speech advocates say will have a chilling effect on the

press.”8 The case of El Universo newspaper is key when analyzing the relationship between the

Ecuadorian government and the judicial system. Not only does it demonstrate the extreme degree of

manipulation exerted by the government over the judiciary, but it also serves as a clear example of

the Ecuadorian government blatantly attacking the nation’s freedom of expression, which is

essential to achieving an impartial judicial system as I stated in my initial report.9

13. Albuja Martínez describes in favorable terms the process of restructuring the judicial

system of Ecuador from the dismissal of the Supreme Court in December 2004, until the new

Justices assumed office in November 2005. However, in my opinion, the radical dismissal and

reappointment of those Justices is actually a strong sign of judicial instability and political

manipulation. Moreover, even if this new Court was composed of prestigious and carefully

selected individuals, as Albuja Martínez claims, that does not mean that the Ecuadorian judicial

system itself suddenly became independent and impartial. Indeed, this entire Supreme Court

resigned in mass in late 2008, in protest of a constitutional reform passed by President Correa,

which reduced the size of the Supreme Court and reduced the length of judicial tenure. In order for

a judicial system to achieve independence, any positive changes implemented at the top levels of

the system must have time to filter down through all levels. In the case of Ecuador, the constant

changes and upheavals have made this impossible.

7 Freedom of the press in Ecuador: A chill descends, THE ECONOMIST, July 22, 2011, http://www.economist.com/blogs/americasview/2011/07/freedom-press-ecuador. 8 Id. 9 Elena Report, ¶ 33 to 35.

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14. Additionally, Albuja Martínez’s report addresses only a very short period of time

(approximately one year), which is not enough to analyze the independence of the judiciary in such

a volatile environment as exists in Ecuador. As discussed above and in my initial report the

Supreme Court and the Judicial Council have changed, both frequently and radically over the last

decade. Thus, analyzing only a short window of time, without taking into account the changes that

took place both before and after that period of time, fails to accurately capture the true nature of the

Ecuadorian judicial system.

C. The Albuja Martínez, Binder and Arias Salgado Reports Do Not Demonstrate That the Judicial Reform Process had any Positive Impact on the Judicial System in Ecuador

15. Each of the three reports discusses the judicial reform efforts that have taken place in

Ecuador. But none of them address the impact this movement actually had on Ecuador’s judicial

system. Indeed, none of the reports provide any data or empirical evidence to prove that the reform

efforts had any positive impact on the old practices that led to the partial and inefficient judicial

system. In my opinion, and as I previously demonstrated in my expert report, the reform processes

in Ecuador described in all three reports did not have a positive impact on the independence and

integrity of the Ecuadorian judicial system.

16. Albuja Martínez did not include any data or empirical evidence to demonstrate that the new

2005 Supreme Court led to a more impartial or independent judiciary, except his own conclusory

statement to that effect. Even worse, Albuja Martinez’s own report contradicts this statement.

First, he states: “since the selection of the new Supreme Court Justices on November 30, 2005,

through the present time, neither the Executive nor the Legislative branches of Government have

interfered with the operation of the Ecuador’s judicial courts, in general, or the Supreme Court of

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Justice, in particular. The judiciary has been able to perform its duties with independence.”10

However, later he states: “During 2006 and 2007, certain Court Justices were accused of political

influence and corruption” and goes on to say that the Supreme Court “auto-purge[d]” itself.11

Therefore, even according to Albuja Martínez, the new system for selection of Justices did not

guarantee their independence from political interference or their integrity.

17. Moreover, there is evidence that the 2005 Supreme Court failed to provide increased

judicial independence or integrity.12 In 2006, according to several sources, both of the major

political parties in Ecuador considered taking action to remove the Supreme Court.13 Although

ultimately they did not have the political power to actually remove the Supreme Court, the mere

fact that they considered it shows how poorly regarded the Court was.

18. Binder’s report also fails to show that the reform movement had any concrete results in

Ecuador. Even though his report includes a chapter entitled, “Results of Judicial Reform in the

Region and in Ecuador,” that section does not contain any empirical data or substantive analysis of

the impact of the reform on the Ecuadorian judicial system.

10 Expert Statement of Marco Vinicio Albuja Martínez (“Albuja Martínez Report”), Jan. 30, 2008, ¶ 38. 11 Id. at ¶ 42. 12 “A new CSJ [Supreme Court of Justice] was appointed in November 2005 ... Preliminary evidence, unfortunately, suggests that the new CSJ judges and their rulings have not been exempt from political pressures. The politicization of the judiciary has also undermined the rule of law in civil and criminal matters . . . In an unprecedented move in January 2007, the CCCC [Civic Committee against Corruption] made public 197 videos showing administrative personnel within the judiciary receiving money for their services. Although the videos are not admitted by the law as bona fide proof of a crime, thus shielding the accused from prosecution, those accused could face serious administrative sanctions imposed by the CNJ [National Judicial Council]. In practice, there is widespread concern that the CNJ is not keen on or committed to imposing such sanctions.” Freedom House, Countries at the Crossroads 2007 - Ecuador, 13, 19, http://freedomhouse.org/uploads/ccr/country-7169-8.pdf 13 “According to an investigation by the El Universo newspaper . . . [t]he change of the Supreme Court, which they qualify as ‘corrupt,’ is one of the items on which these parties agree.” PRIAN and PSP: If they take power, the Supreme Court of Justice will fall, [PRIAN y PSP: Si toman el poder, caerá la Corte Suprema de Justicia], Ecuador Inmediato, Nov. 13, 2006, http://www.ecuadorinmediato.com/Noticias/news_user_view/ecuadorinmediato_noticias--43905.

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19. Unlike the other two reports, Arias Salgado at least attempts to support one of her

conclusions – that courts would “not hesitate to rule against the government”14 – with actual data,

by conducting a case-by-case analysis of 18 specific litigations that took place in Ecuador.

However, her methodology is severely flawed for numerous reasons: (i) the sample is not

representative; (ii) the number of cases (only 18) is too small; (iii) the cases were not randomly

selected; and (iv) 14 out of the 18 cases relate to trademarks, names and brand registrations, and

graphic signs, cases in which the government does not have any significant interest. It is from this

faulty methodology that Arias Salgado derives her conclusion, which therefore must also be faulty.

20. Yet another shortcoming in Arias Salgado’s analysis is that her report is mainly focused on

the judicial and legal reform process on paper. However, as I demonstrated in my initial report, in

Ecuador there is a large gap between the law on paper and the law in practice. A clear case to

demonstrate this gap is the length of judicial tenure in Ecuador. Arias Salgado shows as an example

of progress, the creation of longer judicial tenures under the law, but despite this change in the

written law, in practice the tenure of the Supreme Court judges in Ecuador has remained, on

average, under three years in length.

21. As noted above, none of the three expert reports relied on empirical evidence or substantial

analysis of the impact of the judicial reform in Ecuador. However, such empirical evidence exists

and, in fact, when analyzed shows a system that is politically influenced, partial and corrupt. As it

was demonstrated in my report, “Every single indicator and index available . . . reflects a lack of

independence and existence of corruption in the Ecuadorian judicial system, often in extreme

degree . . . The recent radical changes in the Ecuadorian constitutional framework affecting the

judicial system have undermined judicial independence, judicial integrity and judicial

14 Expert Report of Dra. Alicia Arias Salgado (“Arias Salgado Report”), Sept. 22, 2008, ¶ 137.

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impartiality.”15 My conclusion must be understood as the failure of the judicial reform movement

in Ecuador to achieve concrete impact in terms of impartiality of the judiciary.

D. Ecuador’s Judicial System is the Worst in All of Latin America

22. Even if the reform efforts and the judicial policies are similar all over Latin America, as

claimed by Binder in his report, the results vary dramatically from country to country. As seen

below, Ecuador stands out among Latin American countries as the worst performer.

23. In order to compare the great differences among how Latin American judicial systems

perform, I rely on the data I previously collected and analyzed.16 In my initial report, I included

data from thirteen indices that are relevant to assess judicial impartiality. For purposes of this

analysis, I have divided the figures from all thirteen indices into three categories: good (green),

needs improvement (yellow) and bad (red).17 Because the indices I rely on use different sources

and scales for categorizing the results, I use two methodologies in order to present them here in a

uniform manner.

24. For the indices that rely on data that comes from public opinion surveys, I categorized the

results according to the international convention of the traffic light that CIMA (the Iberoamerican

Consortium of Market Research and Consulting Companies) has adopted.18 “Under this system,

results appear in green when more than 50% of a country’s population perceives things to be going

15 Elena Report, ¶ 8. 16 For a complete breakdown of the information, see Elena Report, Exhs. B, C and D. 17 In the event that a country was not assessed by a particular index, I have left a blank space in the chart below. 18 These indices are the Probability of Being Able to Bribe a Judge Indicator, the National Institutions Index – Confidence in the Judicial System and Courts, the Confidence in the Judiciary Indicator, the Ibero-American Governance Barometer – Confidence in the Judiciary, and the Ibero-American Governance Barometer – Confidence in Constitutional and Supreme Courts.

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well; in yellow when only 30% to 50% view the situation in a positive light and as a challenge to

confront; and in red when fewer than 30% of citizens say things are proceeding positively.”19

25. For the indices that rely on data that comes from the other type of sources, I categorized the

results as follows.20 I calculated the difference between the score of the best ranked country and the

score of the worst ranked country, and divided that interval by thirds. The best third is marked in

green, the middle third in yellow and the worst third in red.

26. A comprehensive review of selected indices related to judicial independence, judicial

corruption and public confidence in the judicial system shows that countries like Chile, Costa Rica

and Colombia have achieved relatively great degrees of judicial impartiality. Ecuador, on the other

hand, is the only Latin American country that is consistently ranked in red across every index

analyzed.

19 CIMA (Iber-American Consortium of Market Research and Consulting Companies), Ibero-American Governance Barometer (Iberobarometer): Executive Abstract of 2010 Results, http://casgroup.fiu.edu/news/docs/1081/1277232145_cima_summary.pdf. 20 These indices are the Judicial Independence Indicator, the Efficiency of Legal Framework Indicator, the De Facto Index of Judicial Independence, the Tenure of Supreme Court Judges 1960-1995 Indicator, the Rule of Law Index, the Control of Corruption Index, the Global Corruption Barometer – Legal System and Judiciary, and the Opacity Index – Legal System.

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27. One reason that similar judicial reform processes obtain different impacts in different Latin

American countries is that the political context in which such processes take place necessarily

differs from country to country. Binder’s report wholly ignores this practical reality. Indeed,

political actors are the most important determining factor in the success or failure of any judicial

reform movement. In Ecuador the judicial reform movement cannot be properly understood

without taking into account the influence of political actors, such as President Gutiérrez, President

Correa, and the Congress. One cannot examine these reform movements in a vacuum, and yet that

is exactly what Binder does in his report.

28. In Ecuador, frequent constitutional changes, political instability in the executive and

legislative branches, and significant political interference with the judiciary are key events that help

explain the failure of the judicial reform movement. “Political instability has become the trademark

of the Ecuadorian state… In recent years, the rule of law has been severely affected by repeated

interbranch conflict; democratic accountability has been displaced by the rise and success of

outsider political candidates with authoritarian tendencies; anticorruption efforts have been rendered

ineffective by the political capture of oversight mechanisms; and the effective protection of civil

liberties has become a political privilege rather than a right in and of itself. The problem lies not in

the legal protection of civil and political freedoms but in the effective functioning of democratic

practices and institutions. Ecuador’s chronic political instability has eroded the capacity of the state

to protect or improve individuals’ quality of life.” 22

22 Freedom House, Countries at the Crossroads 2007 - Ecuador, 2, http://freedomhouse.org/uploads/ccr/country-7169-8.pdf

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E. Final Conclusions

29. In my previous report, I concluded that “the Ecuadorian judicial system does not provide

impartial tribunals. Every single indicator and index available for assessing this issue reflects a lack

of independence and existence of corruption in the Ecuadorian judicial system, often in extreme

degrees. My review of the Ecuadorian institutional arrangements and legal practices consistently led

me to the same conclusion. Due to political manipulation, key judicial institutions suffer from

instability. The recent radical changes in the Ecuadorian constitutional framework affecting the

judicial system have undermined judicial independence, judicial integrity and judicial

impartiality.”23 In my opinion, the expert reports provided by Albuja Martinez, Binder and Arias

Salgado do not successfully challenge these conclusions.

I sign this affidavit in the city of Buenos Aires, on the 29th day of the month of July of 2011.

__________________________________

Sandra Elena

23 Elena Report, ¶ 8.

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Exhibit B – Considered Documents

The documents considered in the preparation of this report include the following:

1. CIMA (Iber-American Consortium of Market Research and Consulting Companies), Ibero-

American Governance Barometer (Iberobarometer): Executive Abstract of 2010 Results,

http://casgroup.fiu.edu/news/docs/1081/1277232145_cima_summary.pdf.

2. Correa Denounces Dishonest Judiciary Council [Correa denuncia a una Judicatura

deshonesta], EL TELÉGRAFO, July 13, 2011.

3. Expert Opinion of Alberto Martín Binder, Sept. 22, 2008.

4. Expert Report of Dra. Alicia Arias Salgado, Sept. 22, 2008.

5. Expert Report of Sandra Elena, June 30, 2011.

6. Expert Statement of Marco Vinicio Albuja Martínez, Jan. 30, 2008.

7. Freedom House, Countries at the Crossroads 2007 - Ecuador,

http://freedomhouse.org/uploads/ccr/country-7169-8.pdf

8. PRIAN and PSP: If they take power, the Supreme Court of Justice will fall, [PRIAN y PSP:

Si toman el poder, caerá la Corte Suprema de Justicia], Ecuador Inmediato, Nov. 13, 2006,

http://www.ecuadorinmediato.com/Noticias/news_user_view/ecuadorinmediato_noticias--43905.

9. Freedom of the press in Ecuador: A chill descends, THE ECONOMIST, July 22, 2011,

http://www.economist.com/blogs/americasview/2011/07/freedom-press-ecuador.


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