Lago Agrio Update

Washington Crossing the Delaware
Letters Blogatory wishes its readers a Happy Independence Day!
I have some updates for you in the Lago Agrio case.

First, the Lago Agrio plaintiffs have won a victory in Ecuador. Recall that Chevron had won a $96 million award against the Republic of Ecuador in an investment treaty arbitration in the Netherlands; a court in Washington has just confirmed the award. Now the Lago Agrio plaintiffs have obtained an order from the Ecuadoran court that (if I understand it correctly) requires Ecuador to pay the $96 million to the LAPs rather than to Chevron in partial satisfaction of the Lago Agrio judgment. Now, before you complain that this seems like some sort of trick, it’s worth remembering that Chevron has tried essentially the same tactic, twice, when it tried to attach Donziger’s interest in the Lago Agrio judgment. We will keep track of this development.

Second, we have been following proceedings relating to the renewal of Ecuador’s trade preferences under the Andean Trade Preference Act. Well, we will be following this no more, as it seems that Ecuador has said it no longer wants the preference, angered by American pressure not to grant asylum to the NSA leaker, Edward Snowden. Incidentally, I had an exchange on Twitter earlier this week on the Snowden affair with Keven Jon Heller that ended with me saying I couldn’t give my (generally negative) view about Snowden in 140 characters.

Third, here is the Lago Agrio plaintiffs’ brief in its appeal of the Superior Court of Ontario’s decision in Yaiguaje v. Chevron, the LAP’s suit seeking recognition and enforcement of their $19 billion Ecuadoran judgment in Ontario. I am not going to comment on the brief (or on Chevron’s brief, when I see it) in too much detail. The key point in the brief is that the Canadian court should not have refused to decide the case merely because it found—erroneously, the LAPs would say—that Chevron had no assets in the jurisdiction. I have expressed a view that is similar but not quite the same as this view with respect to recognition and enforcement proceedings in the United States: even if a court would not have personal jurisdiction over a judgment debtor under ordinary rules of personal jurisdiction, it should at least be able to exercise jurisdiction over a judgment debtor to the extent of the judgment debtor’s assets in the jurisdiction, so that a judgment debtor cannot shield assets that ought to be available to satisfy the judgment. I don’t know what I think about the case where the judgment debtor has no assets in the jurisdiction, but I welcome comments from readers on that point!

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.

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