-i- TO THE SUBROGATE PRESIDENT OF THE ... - Chevron

5.2.4 The Settlement Agreements Signed with the Government of Ecuador and
the Local Governments Are Res Judicata
By operation of Article 2362 of the Civil Code, 708 the settlement agreements have
the effect of res judicata. 709 Thus, later actions that present (i) the same parties; (ii) the
same grounds [causa petendi], and (iii) the same objective, will be barred by the prior
settlements. 710 The former Supreme Court of Justice of Ecuador (now the National
Court) has been very clear on this point: “Pursuant to Art. 297 of the Code of Civil
Procedure no new action may be instituted that shares subjective identity, constituted
by the same parties participating, and objective identity, meaning that the same thing,
sum or act is being claimed, based on the same cause, reason or right.” 711 These
principles have constitutional magnitude, as Article 24(16) of the 1998 Constitution
provides that “no person can be tried more than once for the same cause,” which has its
parallel in letter i) of Art. 76(7) of the current Constitution: "No one may be tried more
than once for the same cause and subject matter."
Whether the parties are identical turns on the real parties in interest, not the
nominal persons involved. 712 The environment belongs to the nation as a whole, 713
such that all citizens share an indivisible right to a clean environment and public health.
The Government of Ecuador had (and still has) the specific and constitutional duty to
represent the interests of the community in environmental matters. 714 The local
governments, too, were (and still are) obliged to “strive for [the] collective material wellbeing”
of their citizens, 715 “look after the sanitation and health” of the local
708 Article 2362 of the Civil Code provides: “Settlement shall constitute res judicata determined by
a court of last resort, but a declaration of nullity or rescission may be sought, in accordance with the
preceding articles.”
709 Case Law, Mar. 26, 1990, Prontuario de Resoluciones of the Supreme Court of Justice No. 3,
p. 116: “Under the legal scholarship and the case law, a settlement is a civil contract that replaces a
judgment because it ends a lawsuit, with the effect of res judicata for the opposing parties. Settlement
and arbitration, although different within the procedural area, have analogous objectives with respect to
settling the claims of the litigants, without incurring the expense and delay that occurs with a lawsuit.”
710 See VODANOVIC, Antonio, Treatise on Civil Law, Vol. I, Editorial Jurídica de Chile. Santiago,
1996, p. 83.
711 Supreme Court Reporter, Year: CVII. Series XVIII, No. 2, p. 503.
712 DEVIS, Hernando, Compendium of Procedural Rights, General Theory of Procedure, 10th
edition, 1985. Editorial ABC. Bogotá. Vol. I, pp. 325, 504 and 505.
713 Article 604 of the Civil Code provides: “National assets are those that belong to the Nation as
a whole. If their use also belongs to all the inhabitants of the Nation, such as the streets, plazas, bridges
and roadways, the neighboring sea and beaches, they are called public use national assets or public
assets . . . .”
714 Article 19(2), of the 1993 Constitution of the Republic of Ecuador, Law No. 25, published in
Official Gazette 183, May 5, 1993, reads: “the State guarantees [to each citizen] 2. The right to live in an
environment free of contamination. It is the duty of the State to ensure that this right is not violated and
take charge of the preservation of the environment . . . .”
715 Article 12 of the Organic Municipal Regime Law.
CERT. INTERMARK VER: JD
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