Tag Archives | Lago Agrio

I have previously noted the efforts by Chevron to tie the renewal of Ecuador’s preferential trade status under the Andean Trade Preference Act to the Lago Agrio litigation. The Office of the US Trade Representative recently issued a new request for public comment as it prepares a report to Congress on the operation of the ATPA program.

Several commenters submitted views to the USTR. Alfredo Lardizabal, CEO of MIC Food, supported renewal of the ATPA preferences. His company, which employs 20 people, imports “frozen plantain and yucca products,” feared that non-renewal would hurt his business. Olmedo Zambrano, general manager of Ecuadoran firm Eurofish S.A., took the same view; his company exports “tuna in pouch” to the United States and would take a hit if Ecuador lost its preference. Other comments from businesses were similar.

And then there was Chevron. As it did before, Chevron focused on Ecuador’s failure to comply with the award in the BIT arbitration; one of the statutory criteria for ATPA preferences is whether Ecuador “failed to act in good faith in recognizing as binding or in enforcing arbitral awards in favor of United States citizens or a corporation, partnership, or association which is 50 percent or more beneficially owned by United States citizens, which have been made by arbitrators appointed for each case or by permanent arbitral bodies to which the parties involved have submitted their dispute.”

We will continue to follow this corner of the saga.

Roger Parloff is reporting that Judge Nicolás Zambrano Lozada did not appear at a scheduled deposition today in Peru where he was scheduled to testify. Recall that theLago Agrio plaintiffs had submitted a declaration from Judge Zambrano rebutting the claims of corruption made by Judge Alberto Guerra Bastidas in a declaration that Chevron had earlier filed.

Now before anyone gets too excited, let’s bear in mind that Judge Zambrano lives and works in Ecuador, and as far as I can tell from Roger’s reporting, he was not under any compulsory process (I don’t know the Peruvian equivalent of a subpoena) to appear. Let’s think about how this would play out in a simpler lawsuit here in the United States. Suppose I sue you in the federal court in Boston, and in opposition to my motion for summary judgment you submit a declaration by a witness who lives and works in California. If I want to take the deposition of the declarant, and if the declarant isn’t someone you control (e.g., your employee or your agent), I am going to have to go to California. You, I, and the declarant could negotiate some other arrangement—we could meet in St. Louis—but the basic rule is that a non-party declarant can’t be compelled to travel to suit the convenience of the parties. If you are interested in the details of this, take a look at FRCP 45(b)(2), which spells out the rule and which states the handful of exceptions, e.g., the 100-mile “bulge jurisdiction” that comes in handy in my neck of the woods pretty often, given that bits of all of the New England states are within 100 miles of Boston. Sure, the case in Judge Kaplan’s court is complex and sprawling and difficult to get your arms around, but it’s governed by the same rules of civil procedure that govern all proceedings in the District Court, and the rule is that you can’t compel the attendance of a non-party at a deposition, with very limited exceptions, absent a subpoena, full stop.

So in an ordinary case, it seems to me that Judge Zambrano would be entirely within his rights to refuse to travel to Peru to testify, and indeed, to refuse to testify without compulsion even in Ecuador, if he chose. Let Chevron obtain a letter rogatory requesting judicial assistance in Ecuador. The twist in this case is that Judge Kaplan has ordered the depositions of Ecuadoran witnesses to take place in Peru because Chevron has asserted that its lawyers “would face reprisals and possible criminal prosecution if they set foot in Ecuador,” according to Roger’s report. Let’s assume that that’s so: I don’t see how it changes the obligations of Judge Zambrano.