Panel Four: International Search for a Remedy

Panel Four is about to get started. The topic is International Search for a Remedy, with Judith Kimerling and Chiara Giorgetti. Hernán Pérez Loose was unfortunately unable to make it due to the storm.

Ted Folkman November 2, 20125:36 pm

That’s it! Thanks for joining the live blog.

Ted Folkman November 2, 20125:36 pm

Judith Kimmerling’s story does not paint the ADF in a very good light. It’s too bad there’s no representative from the ADF here to hear the other side.

Ted Folkman November 2, 20125:33 pm

Judith: There is a real disconnect between the Amazon Defense Front/Donziger and the grass roots like the Huaorani. The ADF is “an NGO run by colonists. We don’t trust them to administer remedies.” The Huaorani might want to get health care from the outside world. But how can ADF design and administer a health care system if they have no contact with the Huaorani who are supposed to benefit from it?

The Huaorani don’t have a decision yet on what they will do with the money. Much of it is earmarked in the judgment for cleaning the water, the soil, the flora and fauna, “cultural damages”, health care.

Ted Folkman November 2, 20125:29 pm

Interesting Q&A. What would the Huaorani do with the money if they got it?

Ted Folkman November 2, 20125:26 pm

Chiara picks up on the question of the human rights of Chevron and its due process rights. Chevron can’t bring a human rights claim, though, obviously.

Ted Folkman November 2, 20125:25 pm

Judith is basically adopting my “assumption of risk” argument. The Ecuadoran courts were bad before and bad after, so Chevron assumed the risk and should be stuck with the Ecuadoran courts.

Ted Folkman November 2, 20125:21 pm

Q&A. Is a denial of due process a violation of human rights? Yes in European law. So isn’t Chevron itself a victim of human rights abuse? (This is Roger Alford’s interesting question).

Ted Folkman November 2, 20125:19 pm

Q&A. Is it okay for the arbitrators to sit in judgment on the Ecuadoran judiciary? Is this legitimate in ad hoc arbitration, in human rights tribunals, or both? Chiara says it’s not yet clear.

Ted Folkman November 2, 20125:14 pm

Q&A. Chiara says that the outcome of the arbitration is going to be important to the outcome of the recognition and enforcement proceedings in Canada, Brazil, and elsewhere.

Ted Folkman November 2, 20125:04 pm

Q&A. Judith Kimmerling responds to Chiara Giorgetti. The release explicitly say that they release liability of Texaco and its affiliates etc. to PetroEcuador and Ecuador, not to the Lago Agrio residents. The Aguinda litigation was already ongoing at the time. Ecuador refused to release third parties. She is making a case for limiting the effective scope of the release, but she acknowledges Chevron’s counterarguments.

Ted Folkman November 2, 20125:01 pm

She thinks that an international forum is the natural forum to resolve disputes like this, and there ought to be one. (Ed. maybe a little utopian?)

Ted Folkman November 2, 20125:00 pm

She notes the plaintiffs had agreed not to sue Ecuador, but had there not been such an agreement maybe that could have been an avenue for relief in an international forum.

Ted Folkman November 2, 20124:57 pm

The petitioners withdrew the claim after the Commissioners asked for evidence of potential harm to health or life. Denial of money was apparently not, in their view, irreparable harm.

Ted Folkman November 2, 20124:55 pm

Now she is discussing the IACHR proceedings, which we have discussed here on Letters Blogatory. The use of the IACHR in this case was unorthodox. The Lago Agrio plaintiffs sought protective measures in response to the tribunal’s interim award, claiming that Ecuador would violate their human rights if it suspended operation of its judgment.

Ted Folkman November 2, 20124:54 pm

She thinks investment arbitrations will be used to resolve public issues more often in the future.

Ted Folkman November 2, 20124:52 pm

But there’s a recent ICSID decision that is groundbreaking. It was brought by 60,000 Italian investors in Argentine sovereign bonds. The tribunal, last year, found that it had jurisdiction to hear the case. This gives the possibility of redress to individuals in an international arbitral forum.

Ted Folkman November 2, 20124:51 pm

Is international arbitration a way to bring about full redress for mass tort claims? In general, no, because the scope of investment arbitration is not broad enough.

Ted Folkman November 2, 20124:49 pm

She’s also reviewing the new denial of justice claim Chevron has brought.

Ted Folkman November 2, 20124:47 pm

She’s reviewing the interim awards requiring Ecuador to take all measures to suspend the effect of the Lago Agrio judgment.

Ted Folkman November 2, 20124:46 pm

The environmental release is the centerpiece of the 2009 BIT arbitration. This is not a typical BIT arbitration. The claim was mainly intended to prevent the recognition of Ecuador’s judgment and to get indemnification from Ecuador in case Chevron or Texaco was ultimately required to pay damages on the Lago Agrio judgment. We have covered all of this before on Letters Blogatory.

Ted Folkman November 2, 20124:42 pm

She is reviewing the history of the initial remediation by TexPet and the releases granted by Ecuador and various municipalities.

Ted Folkman November 2, 20124:38 pm

She is going to summarize the international proceedings that have spun off from the Lago Agrio case.

Ted Folkman November 2, 20124:37 pm

Now we have Chiara Giorgetti of the Universit of Richmond.

Ted Folkman November 2, 20124:36 pm

It also alleges the defendants have failed to explain why they assert they represent the Huaorani.

Ted Folkman November 2, 20124:35 pm

The case alleges ADF failed to consult the Huaorani and that it and Donziger have conflicts of interest.

Ted Folkman November 2, 20124:35 pm

The decision to allow the ADF to control the money awarded by the courts reflects and reinforces the fact that the Huaorani have been excluded from the management of the case. They “risk becoming symbols of justice without getting justice.”

Now she’s discussing the suit against the ADF and Donziger.

Ted Folkman November 2, 20124:33 pm

Many Huaorani are taking a proactive approach to trying to remedy the problems they say Texaco caused. They are engaged in activities trying to protect their ancestral land.

Ted Folkman November 2, 20124:31 pm

“The alleged misconduct [by Donziger et al.] has tainted the victims’ claims and jeopardized their right to a remedy.”

Ted Folkman November 2, 20124:30 pm

After 19 years, the impact of Aguinda is uncertain. Can the Lago Agrio judgment be enforced in the US? Not promising. Can the judgment be enforced elsewhere? Impossible to predict. Might there be a settlement? Who knows.

Ted Folkman November 2, 20124:28 pm

Now she’s discussing the RICO case and Chevron’s ultimately unsuccessful attempt to obtain a world-wide anti-enforcement injunction. As we know, the Second Circuit later vacated the injunction.

Ted Folkman November 2, 20124:27 pm

Now she’s discussing Chevron’s Section 1782 campaign and the trove of damaging evidence it obtained.

Ted Folkman November 2, 20124:26 pm

Chevron has attacked the legitimacy of the judgment in various forums: an arbitration, the Donziger RICO case. Both cases are based on claims of misconduct by Donziger and his team, collusion with the Ecuadoran government, and a systematic failure of justice.

Ted Folkman November 2, 20124:24 pm

The Huaorani were not consulted before the Lago Agrio case was brought, and no remedy was sought for them, even though the complaint seeks to assert claims on their behalf. Instead, the complaint seeks a remedy for the Amazon Defense Front. The indigenous people do not regard the Amazon Defense Front as their legitimate representative.

This is Jet and Sharks stuff! There clearly is a major dispute between Kimmerling and Donziger.

Ted Folkman November 2, 20124:21 pm

Under Ecuadoran law, the Huaorani lands were treated as terra nullius at the time of the oil boom.

Ted Folkman November 2, 20124:20 pm

She’s reviewing Ecuadoran government policy toward the Huaorani after oil was discovered in the Amazon. Kind of depressing.

Ted Folkman November 2, 20124:17 pm

The Aguinda court also got facts wrong about the history of the litigation in Ecuador. It found that several plaintiffs had recovered judgments in Ecuador for claims relating to the pollution, but this, she says, was clearly erroneous.

Ted Folkman November 2, 20124:17 pm

The pollution has made large areas of Huaorani ancestral lands uninhabitable, she says.

Ted Folkman November 2, 20124:15 pm

Texaco, she says, “set its own standards” because the environmental laws in Ecuador were not enforce. Texaco’s “international prestige … gave it enormous power in the oil patch.” There was a culture of impunity and substantial breakdowns in the rule of law.

Ted Folkman November 2, 20124:14 pm

She is going to discuss the Aguinda decision. Where were decisions made about the technologies and practices that caused the pollution? Texaco argued, and the court agreed, that the decisions were made by Ecuadorans in Ecuador and that the Ecuadoran government heavily regulated environmental matters. But according to Kimmerling, these facts were at odds with the understanding in Ecuador, where people understood that the government had contracted with Texaco itself.

Ted Folkman November 2, 20124:12 pm

She is disclaiming any relationship with the plaintiffs’ legal team.

Ted Folkman November 2, 20124:10 pm

First up is Judith Kimmerling, who Letters Blogatory readers will remember as counsel to the Huaorani in their claim for an accounting against Steven Donziger.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. 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 treatise on International Aspects of US Litigation (J. Berger, ed. 2017), 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 and 2014 - 2016.

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