Shaping the Battlefield

One day the Lago Agrio case will be over, but I am certain this is not the last time foreign plaintiffs will obtain a tort judgment abroad and seek to enforce it against a major US company in the US or elsewhere. (It may be the last time that happens after a forum non conveniens dismissal, but that’s another story). So it is time to shape the battlefield. This is particularly important because of the renewed activity within the Hague Conference’s Judgments Project.

Chevron advocate and friend-of-Letters-Blogatory Doug Cassel has submitted a letter to the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, which works under the auspices of the UNHCR. The Working Group had previously recommended that businesses “Cooperat[e] with, and refrain[] from weakening the integrity of judicial processes for victims to access remedy for negative impact.” The main purpose of Doug’s letter was to call to the Working Group’s attention the point that sometimes it is businesses that are the victims of proceedings that do not meet standards for fairness and impartiality.

If the Working Group is to be seen as even-handed and judicious in its relations with all stakeholders, its findings and recommendations should reflect an awareness of the possibility of such perversions of justice.
The Working Group might remind States that their duty to provide redress to victims is subject to the admonition in the Commentary to Guiding Principle 26 that judicial redress requires “impartiality, integrity and ability to accord due process.”

The Lago Agrio plaintiffs’ representatives are engaged in similar efforts to present their point of view in forums related to the UN. So it seems clear that the battle for perceptions is already being fought in advance of the next big case, or in advance of further discussions about whether an international consensus on recognition and enforcement of judgments is possible.

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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