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

damages, based on conduct preceding the enactment of that new statutory definition.
Such a change is plainly a matter of substantive concern, which cannot be retroactively
applied.
In sum, the principle of congruency is fundamental to the Ecuadorian procedural
system, and if the Court were to include matters in its judgment beyond those in the
complaint, then the judgment would be null and must be revoked under the provisions of
Article 273 of the Code of Civil Procedure. The judge may not amend the complaint
itself because if it were to do so, it would become a party to the case rather than a
neutral arbiter. Impartiality of a judge is the essence of the judicial function and the
basis for society’s respect for the rule of law. Indeed, such impartiality gives the Court
the moral authority needed to settle the disputes submitted to it by the parties.
Therefore, any judgment which accepts the claims in Mr. Cabrera’s report or the
plaintiffs’ so-called "legal brief" of September 16, 2010, at 5:15 p.m., which greatly
exceed the specific claims pled in the complaint, violates the principle of congruence
and constitutes extra petita, which would permit revocation and nullity of the judgment.
This Court must rule according to the law and cannot consider the plaintiffs’ interests to
be its own.
CHAPTER VII.
THE PLAINTIFFS HAVE NOT PROVEN ESSENTIAL FACTUAL ELEMENTS OF
THEIR TORT CLAIM
Even assuming, contrary to the law and facts, that the Court had jurisdiction over
Chevron, that plaintiffs had not committed fraud and had their own lawyers and paid
consultants draft the Cabrera Report, that Chevron’s due process rights had not been
systematically violated, and that the plaintiffs had stated a viable claim, the complaint
must be rejected because the plaintiffs have not proven their tort claim. 850
7.1 The Plaintiffs Have Failed to Prove Negligence, Damage, and Causation
The plaintiffs seek to prove alleged damage that occurred and to prove alleged
contingent damage to the environment and public health based upon alleged “acts or
omissions . . . directly imputable to [Texaco’s] wrongful intention or to its negligence.” 851
The plaintiffs’ claims for alleged environmental damage are contained in Chapters VI.1,
VI.2.a, VI.2.b, and VI.2.c of their complaint. 852 Under Ecuadorian law, environmental
rights are “diffuse” or “collective” rights or interests. See supra § 1.4. 853 Therefore, the
850 My client reserves the right to supplement this filing with additional evidence as it becomes
available.
851 Plaintiffs’ Complaint, filed May 7, 2003, at 11:30 a.m., Record at 73-80v, 78v.
852 See Plaintiffs’ Complaint, filed May 7, 2003, at 11:30 a.m., Record at 73-80v, 78-80.
853 The final part of Article 397 of the current Constitution classifies the right to live in a healthy,
ecologically balanced environment, as both an individual and a collective right: “To guarantee the
individual and collective right to live in a healthy and ecologically balanced environment, the State is
committed . . . .” Article 86 of the prior Constitution, in effect until October 2008, described the right to live
CERT. INTERMARK VER: JD
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