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Expert Report of Dr. Enrique Barros B.

Expert Report of Dr. Enrique Barros B.

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Published by TexacoEcuador

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Categories:Topics, Art & Design
Published by: TexacoEcuador on Oct 07, 2011
Copyright:Attribution Non-commercial

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07/10/2014

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 [CERT.GEOTEXT VER]
UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK________________________________________________________________________CHEVRON CORPORATION,PLAINTIFFvs.MARIA AGUINDA SALAZAR ET AL.DEFENDANTSANDSTEVEN DONZIGER, ET AL.INTERVENORS11-CV-3718 (LAK)________________________________________________________________________EXPERT REPORT OF DR. ENRIQUE BARROS B.
________________________________________________________________________
 
 2[CERT.GEOTEXT VER]
REPORT BY DR. ENRIQUE BARROS B.INDEXI. INTRODUCTION
...............................................................................................................................3
II. SUMMARY OF MY CONCLUSIONS………………………………………………..…………...3III. RULES AND PRINCIPLES REGARDING
 RES JUDICATA
………………………………..4
 A. Function and history of 
res judicata
…………………………………………….….....4B. The effect of 
res judicata
applies to both judicial judgments and settlementagreements………………………………………………..…………..………………………...5C. Requirements of 
res judicata
………………………………………………..………....6
IV.
 RES JUDICATA
IS A SUCCESSFUL DEFENSE WITH REGARD TO THE LAGO AGRIOCOMPLAINT………………………………………………..…………..……………………………...7
 A. Identity of the
causa petendi
………………………………………………..………….7
 
B. Identity of object ………………………………………………..…………..………...8C. Legal identity of the parties ………………………………………………..…………111. The concept of party refers to the holder of the interest beingrepresented in the proceedings ……………………………………………….112. The
erga omnes
effect that derives from the diffuse nature of the rightto an environment free of contamination……………………………………..15
 
 3[CERT.GEOTEXT VER]
I. INTRODUCTION
1. Chevron Corporation has asked me to provide an opinion, as an expert in civil and comparativelaw, on whether the decision in the ruling by the Lago Agrio Court on February 14, 2011—which wasclarified and expanded on March 4, 2011—that upheld the claim filed by María Aguinda
et al
. against[the company] (the Lago Agrio complaint) violates the doctrine of 
res judicata
.2. I am independent from the Parties and their legal advisors, and I have no personal interest in theoutcome of this case. The opinions expressed in this report are based on my professional knowledgeacquired in over 30 years of legal experience working as an attorney in the civil law tradition in general,as a law professor, scholar, judge and arbitrator. My professional background and qualifications toprepare this opinion are listed in Annex A. Throughout my career I have acquired experience in theinterpretation of special rules and laws relating to the Chilean Civil Code, [a code] that was later adoptedon almost identical terms in Ecuador. In addition, I have extensive experience in civil law andcomparative law in general. In fact, in my capacity as a law professor and in my academic research I havestudied and regularly utilized the laws of other countries, because in civil law systems the use of comparative law dates from the mid-nineteenth century. In almost every article I have published, as wellas in my
Treatise on Tort Liability
[Tratado de Responsabilidad Extracontractual], I have usedcomparative law to analyze legal institutions. I have no doubt that I am qualified to give my opinion onthe issues that have been put to me. I have carefully explained the basis for my arguments in this reportand I have cited portions of the legal texts and doctrinal sources that I find most significant and useful tothe reader regarding the major topics discussed here, and to explain why and how I came to theconclusions of this report, and their foundations. I endorse and include as an integral part of this reportothers I made in September 2010, presented to the arbitration court in PCA case No. 2009-23, captioned“Chevron Corporation y Texaco Petroleum Company v. República del Ecuador,” attached as Annex B.The documents I have reviewed for this report are listed in Annex C.
 
3. Chevron has paid me at a rate of US$900 an hour for the preparation and drafting of this report.The report was written in Spanish and I understand that there is an English translation that will be filed inthe proceeding.
 
II. SUMMARY OF MY CONCLUSIONS
4. Settlement agreements have the effect of 
res judicata
, similar to court rulings in most LatinAmerican legal systems, including in Ecuador and Chile.
 Res judicata
is a principle widely respected incivil law systems. It is recognized as essential for security and certainty in legal disputes, which couldotherwise be prolonged indefinitely.

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