Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
Issue link: https://digital.carswellmedia.com/i/1148218
18 LEXPERT MAGAZINE | JULY 2019 some time before they got involved. Apart from continuing proceedings in the US, Brazil, Argentina and the international ar- bitration panel, appeals were still outstand- ing in Ecuador. "is was no ordinary case at any turn," said Suzy Kauffman of Goodmans LLP in Toronto, who with colleagues Benjamin Zarnett (since appointed to the Ontario Court of Appeal) and Peter Kolla repre- sented Chevron Canada Limited. "Some- thing was always happening somewhere." e nature of the case, of course, man- dated separate counsel for each of the Chevron entities. "Although we worked cooperatively throughout with counsel for Chevron Corporation for the purpose of defending the case, we were always very mindful that we represented Chevron Canada, a sepa- rate legal entity," Kauffman says. Acting for Chevron Corporation were Larry Lowenstein, Laura Fric and Garth Myers in Osler, Hoskin & Harcourt LLP's Toronto office; and co-counsel Clarke Hunter in Norton Rose Fulbright Canada LLP's Toronto office and his Calgary col- league, Robert Frank. "We all had to be sensitive to ensure that egos didn't get in the way of consistency," Lowenstein said. "is litigation was going on in other places, and Chevron Corp was putting forward a consistent stance. Terrence O'Sullivan and Paul Michell, of Toronto's Lax O'Sullivan Lisus Gottlieb LLP, acted for Chevron Canada Capital Company, the immediate parent company of Chevron Canada. In choosing counsel, the defendants' management and in-house teams focused on collaborative skills and independent- mindedness. "People parked their egos, which made the whole thing an exemplary collabora- tive experience," O'Sullivan says. "For ex- ample, each firm contributed whatever re- search they had done for earlier cases with similar issues." Which didn't mean that "agreeing to disagree" was out of the question. "Chevron welcomed debates and clashes among their external lawyers to help them ALAN LENCZNER LENCZNER SLAGHT ROYCE SMITH GRIFFIN LLP "WHAT I SAW WAS A BIGGER PICTURE OF MULTINATIONALS IN THE EXTRACTION BUSINESS WHO SET UP THESE LAYERS OF SUBSIDIARIES AND BENEFIT FROM THEM WHILE AT THE SAME TIME INSULATING THE PARENT AND THE SUBSIDIARIES FROM EACH OTHER'S LIABILITIES." cided in 2002 that Ecuador was the more appropriate venue for litigating the claims. Key to the dismissal was Texaco's agree- ment that Ecuadorian courts would have jurisdiction. But it took until February 2011 before an Ecuadorean trial court, aer an eight-year trial, awarded the plaintiffs an $18 billion judgment against Chevron Corp. at same month, however, an arbitration panel of the Permanent Court of Arbi- tration at the Hague, constituted to adjudicate Chevron's claim that Ecuador had violated its bilateral investment treaty with the US by denying justice to Chevron and violating the com- pany's procedural rights, issued an interim order directing sus- pension of the domestic judgment's enforcement. To no avail: as Chevron had no assets to seize in Ecuador, the Ecuadoreans sought to enforce the judgment in the U.S., but the efforts stalled in tangled legal proceedings. Meanwhile, in March 2012, an Ecuadorian intermediate appel- late court upheld the domestic award. It took Lenczner and his team — which over time included colleague Brendan Morrison; Kirk Baert, Celeste Poltak and Garth Myers of Koskie Minsky LLP in Toronto; and Vancouver-based aboriginal rights lawyer Peter Grant of Grant Huberman — but 90 days aer that deci- sion to launch the Ontario action. e Ecuadoreans followed up with similar lawsuits in Brazil and Argentina. e upshot for the defence teams involved on behalf of the Chevron entities was that their retainers engaged not only a moving target, but also one that had been moving for quite