Two New Articles

Readers, check out these two new articles, both of which are interesting and useful.

First, Judith Kimerling has published Oil, Contact, and Conservation in the Amazon: Indigenous Huaorani, Chevron, and Yasuni, 24 Colo. J. Int’l Envt’l L. & Pol’y 43 (2013). Kimerling, whom Michael Goldhaber has described as “perhaps one of the only people [ellipsis] with clean hands” in the Lago Agrio saga, is counsel to a group of the Huaorani who have sued Steven Donziger. The article is a highly readable and useful summary of the history of the Lago Agrio case and a clear explanation of the issues facing the Huaorani. The paper is, unfortunately, not available on SSRN.

Second, Roger Alford has published Ancillary Discovery to Prove Denial of Justice. The paper focuses on the use of 28 U.S.C. § 1782 in investment treaty arbitration in cases where an investor claims a denial of justice. But Alford also considers more general issues such as the correctness of the US courts’ eagerness to treat investment treaty arbitral tribunals as “tribunals” for purposes of the statute despite the lack of appellate review, the use of § 1782 in the Chevron/Ecuador case, and the issues that arise when US-style discovery colonizes international arbitration. I know that many people have qualms about this development, but it seems to me that a key for future development in the law comes in a point that Alford makes in passing and that Judge Posner has also made: it is or should be within the power of the foreign or international tribunal to forbid the parties to resort to § 1782, or to limit their use of § 1782, if it wishes. The tribunal’s receptivity to evidence is one of the factors that governs whether a US court will approve a § 1782 application, and it seems to me that a clear indication from a tribunal that the parties are forbidden to make use of § 1782 would weigh very heavily against an application.

Alford also makes an interesting distinction between the comity that a US court provides to a foreign court or tribunal and comity between states. This is a useful point, I think. When considering a § 1782 application arising out of an investor-state arbitration, obviously (or maybe not so obviously) the US court should not be concerned with the comity the US would like to extend to the foreign state that is a party to the arbitration.

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