Update on the Renewal of Ecuador’s Trade Preferences

I previously noted that Chevron had put some pressure on Ecuador by lobbying the US Trade Representative to report to Congress that Ecuador no longer met the eligibility criteria under the Andean Trade Preference Act, under which many Ecuadoran exports to the United States enjoy favorable duties. Chevron pointed to Ecuador’s refusal to obey the BIT award, which had ordered Ecuador to take steps to suspend the Lago Agrio judgment.

The Hill now reports that Senator Richard G. Lugar, Republican of Indiana and ranking member of the Senate Committee on Foreign Relations, has sent a letter to the USTR asking for his position on Ecuador’s eligibility for trade preferences under the statute in light of its refusal to obey the BIT award. He asserted that “[h]ad Ecuador engaged in such conduct prior to its designation as an ATPA beneficiary country, it would not have been eligible for that designation.” In response, Ecuador’s ambassador to the United States, Nathalie Cely, has said that “The Government of Ecuador is fully committed to honoring its international obligations.” She continued:

Under domestic Ecuadorian law, the Government cannot interfere with a private party litigation. Instead, the parties in that domestic litigation are afforded due process under law. The Ecuadorian government can no more interfere in that case than the U.S. government can interfere in this country with respect to private party litigation. Instead, the judicial system must be allowed to reach a final result, including affording all parties the right to appeal.

Ambassador Cely is probably right about Ecuadoran law. But Ecuador is internationally responsible for its judiciary, so I don’t see the force of her point as a matter of international law. I’ve previously noted that the Medellín case is an example of the United States in the same predicament. The US was unable, under US law, to halt Texas’s execution of a Mexican national even though the execution caused the United States to violate its international obligations. But the US’s inability to act didn’t relieve it of its international obligations. “That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation.” 1 The same is true of Ecuador.

Notes:

  1. Restatement (Third) of the Foreign Relations Law of the United States § 115(1)(b) (1987).

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 2d ed. 2016), 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.

One thought on “Update on the Renewal of Ecuador’s Trade Preferences

Leave a Reply

Your email address will not be published. Required fields are marked *