Readers, I erroneously reported that one of the three arbitrators, Dr. Horacio A. Grigera Naón, had dissented without an opinion. In fact, he did write a brief note of dissent, which I simply hadn’t seen. I’m not going to review it in depth: in the main, the disagreement concerns how to interpret the earlier Ecuadoran precedents on how to distinguish individual from diffuse environmental claims.
I invited Chuck Kotuby to do a guest post on the Lozano case, as he is Letters Blogatory’s resident expert on the Hague Convention on the Civil Aspects of Child Abduction, and lo and behold, he wrote up the BG Group v. Argentina case as well! Of course, the two cases, decided on the same day, have to be read together, as Chief Justice Roberts’s dissent in the BG Group case makes clear. For prior coverage of BG Group, readers may want to review my posts on the District Court decision in January 2011 and the D.C. Circuit decision in January 2012. Chuck’s earlier coverage of the Child Abduction Convention can be found in his post on Chafin v. Chafin. Today’s post is cross-posted at the excellent Conflict of Laws blog.
Continue reading “Intellectual Whiplash”: One Day, Two International Cases, and Two Different Results at the U.S. Supreme Court
The case of the day is Republic of Ecuador v. Hinchee (11th Cir. 2013). I covered the case in the district court back in December 2012. You may want to read this post in conjunction with my post on Ecuador v. Bjorkman, a similar case in the Tenth Circuit.
As in Bjorkman, the main question was the scope of protection afforded expert witness materials under the work-product doctrine. So the concerns of the case are not all that relevant to Letters Blogatory readers. More interesting is the outcome: as in Bjorkman, Ecuador prevailed and should be able to make use of the Hinchee material in the BIT arbitration.
Next up: the MacKay case, a similar case pending in the Ninth Circuit, which was argued in December 2013. I predict a similar outcome.