Costa Rica Environmental Agency SETENA Resolutions and Reports by MINAE and INTA, All Concluding There Were No Wetlands on the Las Olas Project Site:
(Claimant's Comments): SETENA RESOLUTIONS are the only environmental reports that become Costa Rica laws once they are issued. SETENA Resolution Permits are the only environmental reports from any agency that become Costa Rica Laws once issued. This law requires compliance by everyone, including criminal prosecutors and judges. Although this was a KEY FACT in the case, it was never mentioned at the CAFTA hearing by George Burn, Louise Woods or any other VE Solicitors/Attorneys. No state witnesses were questioned about why they didn’t comply with the law in accepting SETENA’s many determinations stating that there were no wetlands on the Las Olas project site, nor was it ever mentioned in any Claimant's submissions made by VE Solicitors. The only witness who ever mentioned this KEY FACT was David Aven during his oral testimony at the CAFTA hearing. Below are articles 18, 19 and 20 which gives SETENA this authority under the law. This is why SETENA is the HIGHEST Environmental Authority in Costa Rica. The failure of VE to adequately argue this and grill every state witness about this KEY law, and why government functionaries failed to comply with it, was prima facie Solicitor Negligence by Vinson and Elkins Solicitors. What is even more shockingly inexplicable, was when asked by the Tribunal, ‘who the highest environmental authority in Costa Rica was', instead of Mr. Burn telling the Tribunal it was SETENA, as instructed by Mr. Aven, Mr. Burn shockingly sided with Counsel for Costa Rica, in telling them it was MINAE. It begs the question: Who was Mr. Burn really advocating for?
ARTICLE 18.- Approval and cost of evaluations. The approval of the environmental impact assessments must be managed before the
National Environmental Technical Secretariat; These evaluations must be carried out by a interdisciplinary team of professionals, registered and authorized by the Secretariat National Environmental Technique, in accordance with the guides elaborated by her. The cost
of the environmental impact assessments will be borne by the interested party.
ARTICLE 19.- SETENA Resolutions. The resolutions of the National Environmental Technical Secretariat must be founded and
reasoned. They will be obligatory both for individuals, for entities and public organisms.
ARTICLE 20.- Compliance with resolutions. The National Environmental Technical Secretariat will establish instruments and means to give follow-up on compliance with the resolutions of the environmental impact assessment. In cases of violation of its content, may order the work stoppage. He may interest, the author of the study and those who approve it will be, directly and severally, responsible for the damages that are caused.
COMMENT ON ARTICLE 19 IN THE LAW:
As you see ARTICLE 19 states it’s obligatory for everyone to comply with SETENA RESOLUTION DETERMINATIONS. Neither Mr. Burn or any other VE Solicitors/Attorneys ever asked one question about why Government functionaries, prosecutors and judges, failed to comply with Costa Rica Law. Nor did the Solicitors ever instruct the Tribunal they also are required to comply with Costa Rica law and must accept SETENA’s determination that there are no wetlands on the project site. SETENA was the elephant in the room that George Burn and other VE Solicitors/Attorneys hid from the Tribunal. The question is why? As Jim Loftis told Mr. Aven in a phone call in October of 2018, corruption and incompetence gets you to the same result. We can’t prove corruption, but we can prove Solicitor gross negligence; however, one has to ask, how could competent solicitors could get so many things 100% wrong 100% of the time?
COMMENT ON ARTICLE 18 IN THE ORGANIC LAW:
Another key cornerstone piece of Costa Rica's case was the false allegation that David Aven duped SETENA by knowing there were wetlands and not telling SETENA. They used an obscure document called the Protti Report, which was not a document that SETENA relied upon in issuing their June 2, 2008 resolution. This was such a ridiculous charge that should have been easily debunked, but never was by VE. In fact, Louise Woods told Mr. Aven in a phone conversation in October of 2018, that the Protti Report was one of the reasons they lost the case. This belies the fact that Mr. Aven is not a wetland expert, that Dr. Diogenes Cubero who authored the INTA report found there to be no wetlands on the project site, and SETENA had issued a number of resolutions all saying there were no wetlands. Critically, ARTICLE 18 of the Organic Law states the following:
“The approval of the environmental impact assessments must be managed before the National Environmental Technical Secretariat; These evaluations must be carried out by an interdisciplinary team of professionals, registered and authorized by the Secretariat National Environmental Technique, in accordance with the guides elaborated..”
Could it be more clear? The law doesn’t say it’s up to the developer to determine what wetlands are, or that the developer must render an opinion. The law states that SETENA will make that determination with their experts' opinions according to their guidelines. Although the above facts were crystal clear in ARTICLE 18, neither Mr. Burn, Ms. Woods or any other VE Solicitors made those facts crystal clear to the Tribunal. That is why the case was lost--solicitor negligence pure and simple. In fact in the October, 2018 phone call with Mr. Aven, Mr. Jim Loftis, Ms., Louise Woods and Mr. Todd Weiler blamed Mr. Aven for the loss because of the Protti report! This belies that fact that VE was hired to secure a win for the Claimants, having held themselves as competent and experienced Solicitors, and having run up case costs of $8.6 million USD! According to Jim Loftis, the head of VE’s arbitration team, VE had to write off a $3 million USD loss. Once again it’s Prima Facie evidence of solicitor negligence and incompetence.
Below are all the SETENA RESOLUTIONS, MINAE and INTA reports all saying there were no wetlands. With all of this, one has to ask the question, "How in the World could competent Solicitors have lost this case with all of this compelling and exculpatory evidence?"
7. SETENA Resolution 2850-2011- April 13, 2011, Temporary Suspension for Las Olas Condo Project based upon a LIE BY MINAE. Rescinded in the following November 2011 SETENA Resolution after David Aven proved to SETENA it was a lie.
(Claimant's Comments): The SETENA Memorial Letter above sent to the Director of SETENA, Esau Chaves that was sent on December 7, 2012. The letter was based on two meetings that David Aven and Manuel Ventura, Mr. Aven’s Costa Rica Attorney, had with Mr., Chaves in November of 2012 shortly before the Criminal trial of David Aven and Jovan Damjanac was to being on December 5, 2012.
The state never got a witness statement from anyone at SETENA, MINAE, TAA, SINAC or the MUCINPALITY OF PARRITA. They hid all the key people in these agencies who were most involved in the permitting process of Las Olas. Again, they never got any witness statements from anyone in these key agencies involved with the Las Olas project, nor called on them to provide direct testimony at the hearing. Rather, they provided hearsay statements and comments and in effect testified on behalf of SETENA via hearsay commentary. Instead they obtained witness statements from people who had very little knowledge about the Las Olas Project.
This letter was written by Manuel Ventura and David Aven based upon the conversation they had on two different occasions in Mr. Chaves SETENA office. In those meetings it was explained to Mr. Chaves that criminal charges were filed against Mr. Aven for violating the wetlands and Mr. Aven asked him questions about the legality of Mr. Aven being charged with a crime of violating wetlands after SETENA stated there were on wetlands on the project site. The letter was the closest thing to having SETENA appear at the hearing. This letter was introduced into evidence in both English and Spanish and could have been used in cross examination, but again, true to incompetant form, Mr. Burn never asked one question about anything that was written in this key document. Manuel Ventura was at the hearing for the entire six days and if necessary could have been asked questions about this document by the attorneys and the Tribunal.
Below are some key statements from the letter that Mr. Chaves made to Mr. Aven and Mr. Ventura:
“Mr. Aven asked you that, if once an environmental permit is granted by SETENA, this permit must be respected by all governmental agencies; you indicated that of course it had to be respected, because they are legal documents which grant the developer a right to start the construction process, once all permitting is obtained from the Municipality; it is a binding obligation between the Government and the developer, and must be respected by third parties.”
“During the meeting held on 21st November, David Aven asked directly if there was a legal proceeding that a person must comply with when a SETENA permit is questioned. He asked you if SETENA had to be legally involved, because it is the only government agency authorized to grant environmental viabilities. Based on the existing permits, one can affirm that there are no wetlands, forests, or environmental problems which may be caused by the project, to which you answered yes, and added the following:
Mr. Chaves confirmed the following:
A.. SETENA must be immediately informed of a claim, as well as the developer;
B. The basis of the claim must be indicated and all evidence related to it, must be accompanied; C. SETENA must be informed of any studies that are to be performed on the property, and, SETENA must provide copies of said studies immediately after they are received.
D. From the moment that SETENA issues its environmental viability, it is in charge of investigating anything related to the permit.
E. SETENA must guarantee that all studies and reports that were made before the granting of the permit are in existence and must determine if a mistake was made by the people who prepared them, and when SETENA did exactly that, when Steve Bucelato filed a claim in 2010 alleging that wetlands existed in Las Olas. SETENA sent Juan Diego Pacheco Polanco, a wetlands biologist that Works for SETENA in order to investigate the claim. Mr. Polanco performed his study on August, 18th, 2010, and based on his report, SETENA issued Decision No. 2086-2010, indicating that there were not wetlands and rejected Mr. Buelato´s claims.
F. You indicated that SETENA and the developer must be informed of everything related to the investigation so they can participate during it.
G . You indicated that no agency had the right to cancel a SETENA permit. Only SETENA has the authority to cancel its permits, unless its terms are honored.
H. SETENA considers that the developer should not be responsible of any claim made by a government agency against a permit. The developer does not have an obligation or responsibility in granting the permit; the developer does not have any responsibility in performing the studies that are made, or, in informing SETENA or MINAE that there were no wetlands, and, even to know what a wetland or a forest is.
I. If a Government agency wishes to challenge a SETENA permit, it must discuss it with SETENA and the developer responsible for the Project. SETENA is the only governmental agency with authority to grant environmental viabilities, and any questioning on the part of a government agency must be addressed to SETENA. After a thorough search at SETENA´s archives, after meeting with you, we have not been able to find any communication between SETENA, MINAE, the Environmental Administrative Tribunal, or Monica Vargas. Thus, it is our understanding that the agencies listed did not comply with the law and existing procedures.”
Mr. Chaves confirmed the following:
After a thorough search at SETENA´s archives, after meeting with you, we have not been able to find any communication between SETENA, MINAE, the Environmental Administrative Tribunal, or Monica Vargas. Thus, it is our understanding that the agencies listed did not comply with the law and existing procedures.
Please click that above link to read fully memorandum on Mr. David Aven and Mr. Manuel Ventura meeting with Mr. Esau Chaves.
How is possible that competent /Attorneys did not question every witness about the thingst Mr. Chaves stated in a meeting with Mr. Aven and Mr. Ventura? Mr. Leathley and other attorneys representing the state spent hours quoting things they attributed to SETENA and did not speak one word to anyone at SETENA. It’s the height of incompetence and gross Solicitor Negligence for Mr. Burn and his VE legal team not to use this key document which was the closest thing to SETENA Testimony at the hearing. Not to use it is the very definition of gross negligence along with everything else Vinson and Elkins Legal team didn’t do in this case. Again how could VE be wrong 100% of the time? By their actions, who were they really advocating for?
Costa Rica Agencies "No Wetlands" Reports
(Claimant's Comments): Below are quotes from the MINAE Report of July 2010 stating the following in part:
The above MINAE Inspection report conducted in July 2016 concluded that there were no wetlands, or permanent water mirrors, no damages to the environment, and that the project was not located within a protected wildlife area. This report also mentions a number of other MINAE reports that also stated that there were no wetlands 7 different times.
(1) “If any wetland existed in this property, it would be characterized by a permanent water mirror… ; this was not confirmed at the property.”
“Two inspections were carried out in the months of (2) January and (3) February of this year by MINAE officials, and in their report, they clearly state that the environment is not being affected. Neither do they mention that a wetland or water mirror is found in the property.”
“The documents presented at our offices include [official document] (4) OFICIO-ACOPAC SD-087-2008 that mentions that there are no damages caused to the environment; report (5) SINAC-87389RNVS-2008 that clearly states that the Las Olas Project does not affect the natural resources; [and] official document (6) ACOPAC-OSRAP 282-2008 that mentions that map P-1244761-2007 is not located within a protected wildlife area.”
(7) “The Secretaría Técnica Nacional Ambiental (SETENA) in Resolution No. 1597-2008- SETENA granted the Environmental Viability Permit to Las Olas Residential Condominium. [According to] the inspection of the Las Olas Residential Condominium property, its topographical and ecological characteristics and vegetation profile and soil, and [based on] the reports mentioned above which do not mention that this property has wetland areas anywhere, it is concluded that no wetlands are found in this property.”
The MINAE July 2016 report is one of the above 7 reports that concludes there were no wetlands on the Las Olas project site.
Once again, how in the World could competent solicitors have lost this case with this kind of crystal clear and compelling evidence? You lose by not mentioning anything about the above in the hearing or in your submissions and not grilling state witnesses about the facts and evidence. This was another elephant in the room that was hidden by the VE Solicitors. Again, it begs the question , “How could competent Solicitors get things 100% wrong, 100% of the time?”
(Claimant's Comments): The following Month, on August 27th, 2010, Christian Bogantes wrote an email to Ms. HAZEL DIAZ MELENDEZ giving her a status update about the Las Olas Project and confirmed the following in his email: (click on above link for full report)
(1) > “On March 27th of 2008, a report by SINAC-67389-RNVS-2008, by the valuation of Mr. Gabriel Quesada Avedaño biologist executor, and the engineer Ronal Vargas Brenes SINAC’s director, determinate that Las Olas is not an environmental threat in Esterillos, it´s biodiversity or wildlife.”
(2)> “On April 2nd of 2008, by the document ACOPAC-0282-08 indicates that there is not a wild life protected area.”
(3> “On June 2nd of 2008 by the resolution n. 1597-2008-SETENA the environmental viability is given to Proyecto Condominio Horizontal Residencial Las Olas, administrative record N. D1-1362-2007-SETENA”
(4)> “January 20th of 2010 the OSRAP employees Mariano Solis and Lilliana Rubi realized an inspection and indicate that the project is not producing environmental damages.”
(5)> “On January 30th of 2010 the employee Mariano Solis and Enrique Carvajal indicated an absence of environmental damages.”
(6)> “On July 18th of 2010 a report was made ACOPAC-OSRAP-371-10 by the biologist Ronaldo Manfredi who gave a description of the property and indicates the absence of wetlands or similar features.”
(8)> “ACCORDING TO THE DOCUMENTS FOUND ON THE OFFICE AGUIRRE PARRITA THE COMPLAINTS HAVE BEEN RESPONDED, WHICH INDICATES THERE IS NO DAMAGES ON THE ENVIRONMENT.”
(9)> “ACCORDING TO THE INSPECTIONS THERE ARENT WETLANDS LAKES OR LAGOONS IN THE PROPERTY.
In his letter to Ms. Melendez, Mr. Bognates confirms the same information to her that was in his July 2010 MINAE report that was conducted by Mr. Bogantes and Mr. Manfredi.
Two observations from the above information. As of September, 2010 all relevant agencies confirmed there were no wetlands on the project site numerous times. In September of 2010 the Municipality of Paritta issued construction permits to David Aven for his Las Olas project and Mr. Aven immediately started the infrastructure construction per the master site plan.
At the end of August 2010 Mr. David Aven, witnesses by Mr. Jovan Damjanac was asked for bribe from Mr. Bogantes. When Mr. Aven refused to pay the bribe, suddenly MINAE did a 180 degree turn and started saying there were wetlands on the project site.
In the first week of February of 2011, Mr. Luis Martinez started his criminal investigation of David Aven for violating a wetland. At that time Mr. Martinez knew all of the above information proved there was no evidence or any reason to start a criminal investigation. He also knew there was no evidence of an intent on the part of Mr. Aven or Mr. Damjanac to commit a crime. An honest, non-corrupted, Prosecutor would have not have continued, but Mr. Martinez charged on. Furthermore, if Mr. Martinez had any problem with a SETENA “NO WETLAND” determination Resolution, he knew that according the Organic law it required him to take it up with SETENA not Mr. Aven.
More importantly, Mr. George Burn and the VE attorneys knew all of the above at the time Mr. Burn cross examined Mr. Martinez at the CAFTA hearing on December 8, 2016. Mr. Burn did not ask Mr. Martinez one relevant question about any of the above facts and evidence mentioned from 1 through 14 in the above list of facts and evidence. Again it begs the question, how could a competent Solicitor not question the most key witness for Costa Rica about any of the key facts and evidence in the David Aven et al vs Costa Rica case? How could a competent attorney manage to get things wrong 100% of the time? It begs a further question, who was Mr. Burn really advocating for?
(Claimant Comments on INTA Report): What is important to understand about the INTA report is this. During his criminal investigation of Mr. David Aven, the criminal prosecutor Mr. Luis Martinez, called upon INTA to conduct another wetland study. By that act, Mr. Martinez was in violation of Costa Rica law by not complying with SETENA’s determination in the resolution they issued to Mr. Aven stating there were no wetlands on the project site. Mr. Martinez was also in violation of another law which required him to contact SETENA about his challenge to a SETENA Resolution. SETENA would then have, by law, become the investigative body and would determine if the challenge was valid or not. Instead, Mr. Martinez ignored the law, did an end run around SETENA and contacted INTA to conduct an additional wetland Study for the criminal prosecutor. An act that he had no legal authority to undertake and never informed SETENA about ordering INTA to get an inspection report that was undermining the SETENA Resolution. Another violation of the law which requires anyone ordering any inspections to immediately contact SETENA and inform them of that.
The wetland study came back saying there were no wetlands on the project site. It stated that soil studies taken by INTA showed the project site had no wetland soils, and therefore the project should be permitted to continue. The INTA Report also stated that it was not up to the developers to know what wetlands were, but that was up to the appropriate government agencies to determine. This was a key statement that undermined the entire criminal prosecution case against David Aven. It also became a key argument for Costa Rica and in the David Aven et al vs Costa Rica CAFTA case defense. However, none of this was exculpatory evidence was ever mentioned by V&E attorneys during the entire 35 hours they had to prove up their case for Aven as they said they would do in their September 2014 Engagement letter.
Shortly after the INTA report was sent to by INTA, Mr. Martinez told Mr. Aven that he didn’t believe that report. Mr. Aven during his testimony at the CAFTA hearing in Washington DC at the World Bank, had the opportunity to tell the above story to the tribunal. Mr. Aven clearly said that prosecutors do not have the option not to believe objective evidence. However, shockingly neither Mr. Burn or any other V&E attorneys ever questioned Mr. Martinez about why he failed to comply with four SETENA Resolutions? Why he didn’t take this matter up with SETENA per Costa Rica Law rather than filing criminal charges against Mr. Aven? Why Mr. Martinez refused to believe the Objective evidence as stated in the INTA report?
This was important exculpatory evidence that would have immensely help the case and caused the arbitrators to see that Mr. Aven was right and Costa Rica was wrong. But a bell that is never rung is never heard. Mr. Burn and his V&E attorney crew failed to ring the bell on any of the relevant facts and evidence at the hearing. There’s no way you can win a case if you don’t present the facts and evidence to prove you’re right and the other side is wrong.
Again Mr. Burns statement at the end of the September 2014 Engagement letter.
“For all of these reasons, it will be crucial to the success of your claim against Costa Rica that your chosen Counsel has the requisite knowledge of the law, the procedure and the best tactics to win a case such as this. You can win or lose a case by your choice of counsel"
This is precisely why the case was lost due to the fact that VE failed to do what they told Mr. Aven they would do to win.
No Forest Reports
Criminal Accusation Filed Against David Aven and Jovan Damjanac by Costa Rica Criminal Prosecutor Luis Martinez Zuniga
(Claimant's Comments): At the time Mr. Martinez filed his lawsuit against Mr. Aven and Mr. Damjanac the following facts were well known by the Costa Rican prosecutor:
a. There was no intent on the part of Mr. Aven and Mr. Damjanac to commit a crime.
b. As you can see above there were numerous SETENA Resolutions and MINAE reports issued that stated there were no wetlands.
c. Mr. Aven appeared, at Mr. Martinez's request at the prosecutor's office and rejected his own attorneys' advice not to speak and instead provided proof contained in Government reports that there were no wetlands on the project site.
d. Furthermore, Mr. Martinez ordered a report from INTA, an agency that teaches MINAE officials how to determine the existence of wetlands. The INTA report came back saying there were no wetlands; however, Mr. Martinez stated he did not believe that report. In spite of all the above exculpatory evidence there was no crime and no proof of intent, Mr. Martinez went ahead knowing that no crime had been committed and filed his criminal charges against Mr. Aven and Mr. Damjanac in November of 2011. To add insult to injury the charges were filed at exactly the same time, in November of 2011, when SETENA reconfirmed their June 2, 2008 Resolution which stated that there were NO WETLANDS. Mr. Martinez was well aware of SETENA's resolution and just ignored Costa Rica Law in not complying with a Government order.
e. Most egregious was Mr. Martinez's refusal to comply with Costa Rica law and with the SETENA Resolutions that clearly stated there were no wetlands.
f. Neither George Burn, nor any other VE solicitor/attorneys, asked one question at the CAFTA hearing about any of the above! It begs two questions, why no questions, and on whose behalf was Mr. Burn’s really advocating for.
The Protti Report
(Claimant's Comments): The Protti Report was fraudulently used as a key strategy by the Costa Rican attorneys to counter the fact that Costa Rica had issued all of the relevant permits for the Las Olas Project. The report never said there were wetlands, nor was it ordered by SETENA or David Aven or his representatives. It was ordered by a third party contractor “TechniControl” who was issued a contract by Las Olas Architect and Engineer for infrastructure work on Las Olas internal roads, per the Master Site Plan. This report was used aggressively by Costa Rica attorneys at the CAFTA hearing to argue that it proved David Aven knew there were wetlands on the project site. There was never any aggressive push back in the least by George Burn or any other VE attorneys at the CAFTA hearing to debunk this false narrative. The report was never shown to any witness, asking them to point out in the report where it said there were wetlands. Furthermore, Burn failed to get a statement from Protti in Costa Rica to clarify his report.
Police Report Filed After Assassination Attempt Made On the Lives of Mr. David Aven and Mr. Jeff Shioleno on April 15, 2013 in Costa Rica
(Claimant's Comments): Via emails Mr. Aven received before after the assassination attempt, the reason given for the attempt on his life were related to the problems he was having with the Government of Costa Rica. Mr. Aven was threatened and told to leave the country, or the next time the assassins' would not miss. Below are some of the emails Mr. Aven received through the lasolascr.com website contact page.
(Claimant's Comments): After the assassination attempt on the life of David Aven and Jeff Shioleno in Costa Rica and after being told by the US Ambassador that he should leave immediately since they couldn’t protect him, Mr. Aven went back to the US in fear of his life in May of 2013. On the advice of his counsel Mr. Manuel Ventura, Mr. Aven contacted a number of known firms in Washington DC that have experience in International Arbitration. With the help of Mr. Ventura they put together the facts and evidence for the case and emailed it to every firm along with the recording of the Bribery attempt. All the firms believed that this was a cornerstone piece of case evidence.
During the week of July of 2013, Mr. Ventura met with Mr. Aven in Washington and interviewed five firms. King and Spalding was selected to represent David Aven and the other US Investors. The NOI in September of 2013 included the truthful facts about two bribery attempts. In the NOI bribery, bribe or bribes were mentioned nine (9) times and they are listed below as they appeared in the NOI
“In addition, Costa Rica violated DR-CAFTA Article 10.7 by indirectly expropriating the Investors' right to the value of their investment without compensation. By enjoining the Las Olas Project, soliciting bribes, bringing a criminal claim against the project representative, Mr. Aven, and ultimately creating a situation in which Mr. Aven cannot return to Costa Rica, the government of Costa Rica has effectively deprived the Investors of their right to develop the Project, and to enjoy the profits from their investments.” Page 7 of NOI
“But MINAE reversed course shortly thereafter-following an unsuccessful bribery attempt. While visiting the Las Olas Project site, Mr. Christian Bogantes, the director of the MINAE office in Quepas, told Mr. Aven that things would go a lot easier if Mr. Aven contributed to their retirement funds. This was the second bribery attempt by Costa Rican government officials. The Municipality of Parrita had previously solicited a $200,000 bribe for continuation of the Las Olas Project. The Investors have in their possession a tape recording of the solicitation of this bribe.” Page 7 of NOI
“Mr. Aven- an Investor and the Las Olas Project representative-flatly refused to pay either bribe. In fact, Mr. Aven flied a criminal complaint about the bribe solicitation, which the local Prosecutor's Office in Quepos ignored. lndeed, when Mr. Aven checked the status of his complaint over a year later, there was nothing in the file.” Page 8 of NOI
“The Environmental Prosecutor also ignored Mr. Aven's statements regarding the bribery solicited by Mr. Bogantes of the MINAE office in Quepos. Although extortion and bribery are serious criminal offenses, the Prosecutor (i) failed to investigate Mr. Aven's claim, (ii) maintained the investigation against the Las Olas Project, and (iii) decided to call Mr. Bogantes to testify against Mr. Aven.”
Page 9 in NOI
(Claimant's Comments) : In the NOA bribery, bribe and bribes were mentioned eleven (11) times.
“The Investors were continuing with construction on the project throughout the fall of 2010, when MINAE suddenly reversed course-following an unsuccessful bribery attempt.” Page 9 in NOA
“While visiting the Las Olas Project site, Mr. Cristian Bogantes, the director of the MINAE office in Quepos, told Mr. Aven that things would go a lot easier if Mr. Aven contributed to their retirement funds. This was the second bribery attempt by Costa Rican government officials. The Municipality of Parrita had previously solicited a $200,000 US bribe for continuation of the Las Olas Project. The Investors have in their possession a tape recording of the solicitation of this bribe”. Page 10 in NOA
“Mr. Aven-an Investor and the Las Olas Project representative-flatly refused to pay either bribe. In fact, Mr. Aven filed a criminal complaint regarding the bribe solicitation, which the local Prosecutor's Office in Quepos ignored, page 14. Indeed, when Mr. Aven checked on the status of his complaint over a year later, there was nothing in the file. Worst yet, as further discussed below, far from investigating Mr. Bogantes, the Prosecutor called him as a witness against Mr. Aven”. Page 9 in NOA
“The Environmental Prosecutor also ignored Mr. Aven's statements regarding the bribe solicited by Mr. Bogantes of MINAE. Although extortion and bribery are serious criminal offenses, the Prosecutor (i) failed to investigate Mr. Aven's claim, (ii) maintained the investigation against the Las Olas Project, and (iii) decided to call Mr. Bogantes to testify against Mr. Aven”. Page 10 in NOA
“By enjoining the Las Olas Project, soliciting bribes, bringing a criminal claim against the project representative, Mr. Aven, and ultimately creating a situation in which Mr. Aven cannot return to Costa Rica, the government of Costa Rica has effectively deprived the Investors of their right to develop the Project, and to enjoy the profits from tl1eir investments.” Page 15 in NOA
“Then Costa Rica began to engage in a series of international wrongs. After an unsuccessful bribery attempt, MINAE suddenly determined-without any scientific support-that there were wetlands on the Las Olas Project land.” Page 24 in NOA
The truthful fact is that David Aven was asked to pay a bribe twice, first in April of 2009 by an employee of the Municipality of Parrita, which Mr. Aven recorded. The second time was when he was asked to pay a bribe by Christian Bogantes, the head of the MINAE office in Quepos, at the end of August 2010. Jovan Damjanac and Luis Alfaro were witnesses to the second bribery attempt.
Due to circumstances beyond his control, Mr. Aven had to seek another law firm to handle the case after the NOI and NOA was filed. The firm selected was Vinson and Elkins (VE) London UK Office. The head of the arbitration Department for VE in London was Mr. George Burn and his team included Ms. Louise Woods, who was second in command, Alexander Slade, and Mr. Jim Loftis the head of London Arbitration Team and Mr. Burns' superior. Mr. Loftis was working out of the Houston, Texas office. Mr. Burn held him and his firm out as experienced and very successful in the International arbitration arena.
Prior to signing the engagement agreement Mr. Aven provided the bribery recording to Mr. Burn and his team. The VE attorneys were fully aware of the details of the bribe and truthfulness of the facts surrounding it as represented in the NOI and NOA disclosures. Mr. David Aven fully expected that such a key piece of evidence would be used as a central theme in the case strategy as to why the project was shut down after receiving all the necessary permits in September 1, 2010 and nine months into infrastructure construction.
Although, Mr. Aven instructed Mr. Burn, Ms. Woods and other VE Solicitors numerous times to put the bribery recording into evidence, they refused to follow their client's instructions, coming up with nonsensical reasons. Ms. Woods said at one time that she didn’t want to put Mr. Aven at risk. Another time she said she didn’t want to jeopardize attorney Mr. Gavridge Perez, who was at the meeting with Mr. Aven and was his translator. Mr. Aven asked Ms. Woods "Who is your client, Mr. Perez or me?" Another excuse made was that she thought it would hurt Mr. Aven in his criminal trial. Mr. Aven said it was his risk and decision and he again instructed Ms. Woods and Mr. Burn to put it into evidence, but they continued to ignore their clients instructions which proved to be costly to their client' case the very first day of the hearing.
In his opening statement, on theday of the hearing December 5, 2016, Mr. Christian Leathley said the following:
"Claimants allege that they had a tape recording of the solicitation of this alleged bribe. They make that in page 7 of their Notice of Intent to Submit a Claim to Arbitration on the CAFTA back in (he was interrupted by Chair of the Tribunal and then continued) “Claimants say they had a tape recording of this alleged bribery incident. They said this in 2013 at the time King & Spalding were representing them. As of today there is no recording. Such a cornerstone of their entire case is inexplicably missing.”
Mr. Burn and Ms. Woods and other VE attorneys were sitting at their desks in the hearing room and heard that statement. At the time they heard it, they knew the truth that Mr. Aven had given them the recording and they heard a Municipal employee asking Mr. Aven for a bribe. They also knew that Mr. Leathley's statement per his knowledge at the time was correct since the audio recording that Claimant said they had in their NOI and NOA had not been produced. Therefore Leathley's statement required a truthful reply, but it was not given. The inexplicably missing audio recording, without explanation, inferred to the tribunal that Mr. Aven was lying. The Tribunal's reasoning was that if Mr. Leathley’s statement was false, then VE would either produce the recording or provide an explanation why it wasn’t produced. Failing to do either only left the Tribunal with one conclusion: David Aven was lying about having the recording, and liars don’t win in legal proceedings.
Mr. Aven instructed Mr. Burn during the break to immediately tell the tribunal the truth and to produce the recording so they wouldn’t think Mr. Aven was lying about having the recording. Mr. Burn refused telling Mr. Aven it wasn’t important. Mr. Aven strongly disagreed and told Mr. Burn to tell the Tribunal the truth and said if he did not, it would make him out to be a perceived liar and liars and we would lose our case. Again Mr. Burns ignored his client's instructions.
Mr. Aven continually told Mr. Burn, Ms. Wood, Mr. Loftis and other VE attorneys to put the audio into evidence before the hearing, during the hearing, after the hearing and during Tribunal deliberations. They continually refused to follow their client's instructions to put the bribery recording into evidence and that was the "kill shot" for the case and one of the key reasons why the case was lost.
Mr. Burn, Ms. Woods, Mr. Loftis and other VE solicitors had a duty to their client to tell the truth. Instead they went silent and withheld truthful evidence from the court. Truth is the foundation stone of all legal proceedings and it is why people swear or affirm to tell the truth under penalty of perjury. That intentional, abhorrent and deceptive acts of hiding the truth from the court and not following their client's direct instruction is grounds for disbarment of VE solicitors or worse.
When Mr. Aven asked why do they think the case was lost when everyone thought it could be won Ms. Woods blamed Mr. Aven and mentioned the Protti Report. Mr. Aven debunked that notion and stated that both Vannin Capital and VE put up millions of their own money on the strong conviction the case could be won. During the hour conversation key points of the case were discussed and Mr. Aven again brought up the fact that VE solicitors failed to follow Mr. Aven’s instruction to enter the bribery recording into evidence, which made Mr. Aven out to be a liar in the eyes of the Tribunal. Ms. Woods continued her line of nonsensical excuses and added a new one when she told David Aven that he said it was Mr. Bogantes on the recording asking for a bribe, but instead it turned out to be Municipality employee who was recorded asking for the Bribe.
The above statement of Ms. Woods in that phone call, that Mr. Aven recorded Bogantes, is false and factually incorrect. Both the NOI and NOA clearly stated the recording was made in the Municipality. Here’s the statement again in the NOI: "The Municipality of Parrita had previously solicited a $200,000 bribe for continuation of the Las Olas Project. The Investors have in their possession a tape recording of the solicitation of this bribe.” Page 7 of NOI
Here’s the statement in the NOA: “While visiting the Las Olas Project site, Mr. Cristian Bogantes, the director of the MINAE office in Quepos, told Mr. Aven that things would go a lot easier if Mr. Aven contributed to their retirement funds. This was the second bribery attempt by Costa Rican government officials. The Municipality of Parrita had previously solicited a US $200,000 bribe for continuation of the Las Olas Project. The Investors have in their possession a tape recording of the solicitation of this bribe”. Page 10 in NOA
So how could Ms. Woods get this key fact absolutely wrong after working on this case for two years? Was she intentionally lying to Mr. Aven to blame him for the case loss and absolve VE for the loss, or was she just again being totally incompetent and negligent in not being able to represent a key fact correctly to him in a $100 million USD case that she worked on closely?
During that same call, after blaming the loss on Mr. Aven, Mr. Aven went over a number of the things that are covered above and asked Mr. Loftis this question, "When you go to trial don’t you have to have a solid case strategy about how you are going to win by using your key evidence in an order of proof to prove up your case for the Judge or Jury?" Mr. Loftis responded with "yes". Mr. Aven then said that the transcripts and trial videos which show Mr. Burn had no case strategy, didn’t use the facts and evidence during cross and redirect of witnesses, and most of the time Burn asked irrelevant questions that had nothing to do with proving up their case with the facts and evidence, which is why the case was lost. Neither Mr. Lofis, nor Ms. Woods had a word to say in their defense to Mr. Aven's statements. Furthermore, they never wrote Mr. Aven an email later to provide a counter argument to Mr. Aven’s statement. Their response was just like all their others- NONRESPONSIVE and SILENT.
After deciding during the call that it would be a waste of money to proceed with an appeal, Mr. Aven asked if Vannin Capital was onboard with that decision. Ms. Woods said she had a brief conversation with Vannin and stated they were very upset, having lost $3.4 million USD on the case. However, Ms. Woods said she had not received a formal notice about Vannin’s intentions. Mr. Aven then suggested that they write a letter and tell Vannn what VE’s position was and get Vannin to sign off rather than taking a unilateral action without their consent. Mr. Loftis said “GOOD POINT” and instructed Ms. Woods to get that letter out to Vannin immediately. Mr. Aven requested a copy of that email but never received one and had no further conversation with anyone else from VE.
Why is it that Mr. Aven had to make that suggestions to the VE Solicitors? Competent solicitors would have done that before the call. Mr. Aven is not an attorney, but had enough common sense to know that they should get a written sign off from Vannin. In that one hour meeting, which Mr. Aven also recorded, you will hear all of that and more to show how really incompetent, negligent, and what obvious liars this VE crew really are. The only think VE was consistent at was their incompetence and negligence right up to the very end. Again it begs the question: How is it that the VE solicitors were wrong 100% of the time, and who were they really advocating for? One would have to think that given this horrendous negligence in representation that a first year law student would have done a better job trying this case.
Luis Martinez Filed an Illegal INTERPOL RED NOTICE Against Mr. Aven, After He was Forced to Flee the Country Due to the Assassination Attempt.
(Claimant's Comments): This was truly an outrageously spiteful and revenge filled act by the Criminal Prosecutor, Mr. Luis Martinez. He lied to INTERPOL in order to have an INTERPOL RED NOTICE issued against Mr. Aven. These kind of RED NOTICES are only for serious criminal acts and not meant for minor criminal offenses like violating a wetland. Upon Mr. Aven discovering a RED NOTICE had been issued on him, he immediately appealed the NOTICE with INTERPOL. His attorney explained the truth about the fact that he was not convicted of any crime. It must have been a first time that a person, not convicted of a serious crime, had an INTERPOL RED NOTICE issued against their name. This did irreparable harm to the name of David Aven and is something he will have to live with forever. Astonishingly, Mr. Burn did not ask Mr. Martinez one question during his cross examination about his reprehensible actions and his lying to INTERPOL in order to acquire the illegal RED NOTICE against Mr. Aven.