Doug Cassel on the Lago Agrio Case

Doug Cassel, professor of law at Notre Dame Law School and one of the authors of an amicus brief in favor of Chevron in the Inter-American Commission on Human Rights proceedings, has an important post up at Opinio Juris on the Lago Agrio case. He lays out some of the reasons why he concluded, after reviewing Chevron’s allegations of fraud in the Ecuadoran proceedings, that Chevron is in the right. As Roger Alford writes in the comments, responding to an attack on Professor Cassel by Kevin Jon Heller, it seems likely that “an international human rights lawyer like Doug Cassel is not going to be attracted by the meager financial rewards of writing one amicus brief before the Inter-American Commission if he did not believe that there were fundamental violations of due process that were at stake.”

Professor Cassel’s post, and the open letter to which he links, are worth a read. My own view (see, e.g., here and here), for what it is worth, is that maybe it shouldn’t matter whether the Ecuadoran proceedings were corrupt. Chevron fought to have the proceedings moved to Ecuador, and as many other have noted, there seems to be something wrong with allowing Chevron to impugn the Ecuadoran judiciary after it touted the Ecuadoran judiciary when it was trying to get the original New York proceedings dismissed on forum non conveniens grounds. But that’s different from saying that the Ecuadoran proceedings were fair. While I don’t think it’s possible for someone outside the litigation who has not read the record to give a firm opinion on the propriety of what happened in Ecuador, Chevron’s case that the proceedings were in fact unfair or corrupt is worth serious consideration.

Kevin Jon Heller has responded with a post of his own with examples of what he says are Chevron’s misbehavior in Ecuador. I think these claims are worth serious consideration, too, though I do not think that they do much to support the notion that the Ecuadoran proceedings were fair and impartial.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

4 thoughts on “Doug Cassel on the Lago Agrio Case

  1. I’m not understanding this estoppel argument. Texaco didn’t know that the plaintiffs were going to bribe the court’s expert when it said the judiciary was competent to handle the case. We can’t have a system where a motion on forum non convivens grounds gives the plaintiffs open season to undermine the new court. If anyone should be estopped, it is the plaintiffs from arguing estoppel because they have very dirty hands.

    1. Andy, thanks for commenting. I don’t claim to know what a US court will do with the estoppel argument, and it’s good to hear different views.

      I have two responses to your comment. First, I don’t see why the fact that Texaco did not know that the Ecuadoran proceedings would turn out to be corrupt matters. In a judicial estoppel case, it’s not the truth of the representations to the court that matters, it seems to me. Second, you write: “We can’t have a system where a motion on forum non conveniens grounds gives the plaintiffs open season to undermine the new court.” Why is this more compelling than the point that we shouldn’t have a system where a party can avoid the jurisdiction of the US courts by pointing to the high quality of the relevant foreign courts and then avoid the judgment of the foreign court by pointing to the low quality of the same court it previously touted?

      I should say that there are good arguments against estoppel here. One is that Texaco’s stipulation in the New York proceeding expressly reserved the right to challenge the Ecuadoran judgment on the grounds permitted by the Uniform Foreign Money Judgment Recognition Act. Another is that even if there is an estoppel, Chevron should be estopped only to assert that the Ecuadoran judiciary overall is corrupt, and not that there was corruption in the particular proceeding. A third is that there was a real change in the Ecuadoran judiciary between the time Chevron made its representations to the US court and the time the case was decided in Ecuador (although I think there is a counter-argument to this, namely that Chevron more or less assumed the risk).

  2. The foodfight at Opino Juris between Professor Cassel and Professor Heller continues. Professor Cassel has responded to Professor Heller’s attack on Chevron by picking apart the assertions Heller made about Chevron’s conduct in Ecuador and then asserting that Heller’s attack “turns out to be no more than a pastiche of press releases, hastily and uncritically assembled.” Ouch!

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