Lago Agrio: The Wheels of Government Turn Slowly

Here is one for the cautionary tale files. On Sept. 18, I published a post noting that Chevron had not filed an opposition to the renewal of Ecuador’s trade preferences and wondering why that might be. I hedged my bets by noting that “it’s possible … that Chevron has submitted a petition that simply hasn’t appeared on the online docket yet,” but I figured that if the materials didn’t appear online they didn’t exist. That’s pretty much how other government filing systems I use, such as the PACER system in the courts or the SEC’s EDGAR system, work. I mean, come on, it’s 2012!

Well, it turns out that Chevron and others did comment on ATPA renewal, but the USTR did not put the comments online for a week. Why? Your guess is as good as mine, since the notice called for comments to be submitted electronically. But in any case, my prior post turned out to be utterly off-base. Memo to the Letters Blogatory files: in future, don’t assume that the government’s administrative docketing systems work as well as they should! Memo to the USTR: speed up your docketing—you’re making me look bad!

In any event, several commenters submitted comments, all of which are now available at the online docket. I’m only going to address the two most significant comments: Chevron’s petition, and the Ecuadoran ambassador’s comment.

Chevron’s petition recounts its basic story of fraud and corruption and then focuses on Ecuador’s failure to obey the interim award in one of the Chevron/Ecuador investment treaty arbitrations, which requires Ecuador to take “all measures necessary” to suspend the Lago Agrio judgment’s effect. Ambassador Cely’s letter is pretty good. She notes that Ecuador is in precisely the situation the United States found itself in in the Medellin case—obligated as a matter of international law to take an action but unable, for reasons of domestic law, to take it—and she notes that the Ecuadoran courts’ decision not to suspend the judgment relied on countervailing considerations of international law, and that Ecuador had thus acted in good faith. For good measure, she points out that Ecuador has committed in writing to paying the award in the other investment treaty arbitration pending if the Netherlands courts ultimately reject its challenges to the award.

Apologies for the error in my prior post! I will be less naive about the government’s technological capabilities going forward.

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.

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