Lago Agrio: FOIA Update

The latest batch of FOIA documents from the State Department have arrived. Here are some highlights:

  • In early 2013, as President Correa expressed his opposition to the BIT tribunal’s holding that it had jurisdiction of Chevron’s claim against Ecuador, there was some interest within the State Department about the jurisdictional basis for Chevron’s claim. As an email circulated within the embassy in Quito put it: “Pls refresh my memory why Chevron could invoke the 1998 BIT although it departed Ecuador in 1992.” One of the staffers in the embassy, Aaron Feit, put the question to Mahvash Siddiqui, with the Office of Investment Affairs in the Bureau of Economic and Business Affairs. She passed the question on to “our legal advisors” (Laura L. Conn, Lisa J. Grosh, and Lee M. Caplan), but she wrote: “My understanding is that Chevron invoked the BIT as a legitimate US investor that has protections under the BIT. It pursued international arbitration as it is a legitimate investment dispute.” Conn responds to the group, but whatever she wrote has been redacted.
  • In mid-2013, Bill Irwin, Chevron’s lobbyist, keeps the Department informed of a ramp-up of the Ecuadoran government’s PR efforts. It argued that the GOE was “engaging both within and without Ecuador with disparaging information about the company and providing links to information resources managed by the Lago Agrio plaintiffs &hellip’ all while under orders from the arbitral tribunal and with corresponding treaty obligations to take all steps necessary to suspend enforcement of the judgment.” Let me just editorialize for a minute and wonder: has anyone noted the parallel between, say, the Ecuadoran government’s use of the courts to intimidate critics in the press (e.g., the El Universo case) and Chevron’s use of the courts to push back against the other side’s PR efforts? I mean, Chevron publishes disparaging information about the government of Ecuador and Donziger every day. Chevron may say that the difference is that when it disparages its opponents, its accusations are true, while when its opponents disparage it, their accusations are false, but that’s not really how freedom of speech on matters of public concern is supposed to work. I’m just saying.
  • The Department showed some concern that its own communications with Chevron had gotten caught up in discovery in the BIT arbitration. Here is an email from February 2013:

    Bill Irwin of Chevron called. Chevron has a private cause of action RICO case against Ecuador, alleging a criminal conspiracy in the $40 bn judgment against Chevron over the oil pits in northern Ecuador.

    As part of mutual discovery, Chevron has had to turn over something like 200k ppgs of technical documentation. Ecuador’s attorneys have also subpoenaed Chevron’s government affiars documentation related to the case. This will show a broad Chevron effort to tell its story to various stakeholder,s including the media, the Hill, and the executive, including State. To the extent we’ve written Irwin or he has memorialized our conversations, those documents presumably will be turned over to Ecuador’s attorneys. He says the whole haul for government affairs documentation is about 27k ppgs.

I will keep you posted as more comes in. There has been some interest from reporters in the FOIA stuff, and I am hopeful that we will see a story in the press about it before too long.

Case of the Day: Elobied v. Baylock

The case of the day is Elobied v. Baylock (E.D. Pa. 2014). Hashim Elobied sued Trescott Baylock for breach of an oral contract for the purchase and sale of a Bentley Continental GT. Let me just pause to marvel at an oral contract for the purchase of a Bentley. I’m not sure which law applies to the substance of this case, but I hope the governing law doesn’t have the Statute of Frauds!
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Thoughts on Greg Shill’s Judgment Arbitrage

Paul Revere

Happy Patriot’s Day!

Greg Shill, now a visiting assistant professor of law at the University of Denver and formerly on the Chevron team at Gibson Dunn, has written a very interesting paper, Ending Judgment Arbitrage: Jurisdictional Competition and the Enforcement of Foreign Money Judgments in the United States, 54 Harv. J. Int’l L. 459 (2013). The paper has recently been covered on Opinio Juris and on Greg’s own blog, Just Shilling (catchy title!)
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