To be clear, Chevron’s purported evidence of fraud is not part of the first-instance record. Claimants know this all too well.726 The first-instance record is comprised only of evidence duly requested and ordered by the Court during the evidentiary phase of the Lago Agiro proceedings.727 Evidence offered or submitted to the Court outside of this process is untimely and inadmissible.728 Applicable rules of procedure similarly foreclose submitting new evidence on appeal or at the Cassation level.729 Accordingly, neither the Appellate nor the National Court had competence to rule upon Chevron’s purported evidence of fraud. Reliance on inadmissible evidence by any court in Ecuador constitutes a violation of due process to the party against whom the evidence is admitted and is grounds for nullification of the resulting judgment at the Cassation or Constitutional Court level, as the case may be.730 Because Chevron relied on
comprehensive analysis of the record in respect of the matters of fact and law that are subject to appeal”); id. ¶ 85 (clarifying that the scope of the appellate review is “always subject to the parties’ allegations”); id. ¶ 86. 726
Applicable rules of procedure are unambiguous and non-controversial. Claimants’ sophisticated counsel, at a minimum, has constructive knowledge of these provisions. See RLA-198, Ecuadorian Code of Civil Procedure, art. 117 (“Only properly produced evidence, i.e., evidence requested, presented and examined according to legal requirements, is admissible in court.”); RLA-164, Constitution of Ecuador (2008), art. 76.4 (“Evidence obtained or produced in violation of the Constitution or the law shall have no validity or probative effect.”). 727
Respondent’s Track 2 Supp. Counter-Memorial, Annex A ¶¶ 103-104; RE-20, Andrade Expert Rpt. (Nov. 7, 2014) ¶ 70. The evidentiary period in oral summary proceedings (such as the Lago Agrio Litigation) is a six-day period that follows the initial conciliation hearing at the outset of the proceedings. See RE-20, Andrade Expert Rpt. (Nov. 7, 2014) ¶ 65 n.101. This rule admits only one exception, not applicable here, consisting of a judge’s prerogative to order ex officio the production of evidence that he or she may deem appropriate at any stage of the proceedings before the judgment. See RLA-198, Ecuadorian Code of Civil Procedure, art. 118 (“Judges can ex officio order the evidence they deem necessary to clarify the truth, at any stage of the proceedings, before judgment. Except for the examination of witnesses, which cannot be ordered ex officio, but the judge may reexamine a witness or request explanations from witnesses who have already declared legally.”). 728
See RE-9, Andrade Expert Rpt. (Feb. 18, 2013) ¶¶ 63-66; RE-20, Andrade Expert Rpt. (Nov. 7, 2014) ¶ 60 n.87; RLA-198, Ecuadorian Code of Civil Procedure, art. 117; RLA-164, Constitution of Ecuador (2008), art. 76.4; see also R-1296, Hernando Devis Echandía, GENERAL THEORY OF JUDICIAL EVIDENCE 359 (1974) (“Evidence untimely submitted, even if it is documental, cannot be considered by a judge, ‘otherwise the judge would be violating the principle that he must adjudge justa allegata et probata according to the concept of Lessona, because probative evidence is that which complies with the formalities and requirements established by law.’”). 729
Respondent’s Track 2 Supp. Counter-Memorial ¶¶ 219-222, 224.
730
Respondent’s Track 2 Supp. Counter-Memorial ¶¶ 221, 224; see RLA-638, Prophar v. Merck Sharp, Constitutional Court Case 1926-12-EP 209 (Mar. 21, 2014) at 4 (“As a result of the foregoing, this Court clearly finds that the Civil and Mercantile Chamber of the National Court of Justice has exceeded the scope of its competence in a cassation appeal by admitting and assessing evidence not duly and timely submitted to the lower courts, such conduct constituting a clear violation of the parties’ due process rights under article 76, item 1 of the
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