Lago Agrio Comes to Boston

I played hooky yesterday afternoon and attended two events at Harvard that, as far as I know, were scheduled on the same day purely by coincidence. First was a talk by Steven Donziger at the Harvard Law School Human Rights Program. The second was a talk by Ecuador’s president, Rafael Correa, at the Kennedy School’s Institute of Politics.

The Donziger Talk

The event was held in Wasserstein Hall, the beautiful new building opened a few years ago. Beautiful, yes, but I’d like to pause for a minute and remember the Three Aces, the pizza joint that was displaced by law school expansion. The talk was well-attended. Tyler Giannini, the co-chair of the Human Rights Program, was there. Eon, Dean of Cyberspace, better known to the world as Professor Charles Nesson and to readers of A Civil Action as “Billion Dollar Charlie,” was there with a little terrier tucked under his arm. Aaron Marr Page was there, as was Gustavo Dominguez, the consultant to the Ecuadoran embassy who seems to be everywhere these days with his trademark bow tie. Donziger himself is a tall, prepossessing man with a ready smile who can go from zero to passionate argument in a flash.

We started by watching the now-famous clip from 60 Minutes, featuring a very poor showing by Chevron’s PR person and Donziger’s usual forceful presentation. I haven’t seen the clip in a long time—it was interesting to hear the reporter talking about the Cabrera report years before the truth about the report was established. Donziger then spoke for a few minutes and took some questions from the audience and from two members of the faculty, Professor Giannini and another whose name I didn’t catch.

The questions from the faculty were surprisingly sharp and direct. Surely it was predictable that Chevron would go after Donziger and his team as ferociously as it could, and that being the case, wasn’t it incumbent on Donziger to stay well clear of the ethical line? In light of the use Chevron has made of the Crude outtakes, would it not have been better not to participate in the filming? Yes, Donziger said, he would have still made the film, though he would have been more careful with his words. The film was part of a public pressure campaign at a time he thought his side was losing the case. “We tried to bring maximum pressure to bear. I own that, as do my colleagues.” Donziger rejected the notion that he had crossed any ethical lines, and he also said that Chevron itself had done the very things he was accused of, bribing witnesses, falsifying tests, etc. So he didn’t really engage with the sense I had from Professor Giannini in particular, namely, that Donziger had made life more difficult for human rights litigators by getting close enough to the line to get burnt.

The students did not ask any knock-out questions, I thought. Professor Nesson had the most interesting contribution, though in classic Professor Nesson style, it was not really a question but a Delphic pronouncement. (“Do you have a question?” Professor Giannici asked him in mid-stream). He started out with a kind of anti-pep talk for Donziger that would have made Andrea Neuman misty-eyed if she had been there to hear it. “You look beat! You look defensive!” What happened, he was asking, to the brash young lawyer he remembered from the early ’90s, when the case was new and all was right with the world? But then came Nesson’s zinger. Most of the students in the audience would, he claimed, end up working for firms like the firms Donziger has been up against. “You’re expecting us to be outraged,” by what Gibson Dunn had done, he said. “Get real! This is the f’ing business!” And Randy Mastro’s strategy was “a corporate defense work of art,” an observation I’ve made myself and that even Donziger seemed to agree with, though not of course in an admiring way.

Donziger was not too reserved in his remarks about Judge Kaplan. “I believe in the rule of law in this country,” he said. But when someone asked why he thought Judge Kaplan had approached the case the way he did, Donziger said, “I think he had a broader agenda. I think he saw a way to try to encourage corporations to use RICO as a tool. He is not fair,” Donziger said, noting Judge Kaplan’s many years of experience as a big-firm defense lawyer (which I don’t know to be true, but I haven’t checked his CV).

There was not much talk at all of the details of the factual or legal issues in the RICO case, which I suppose was only to be expected.

The Correa Speech

The speech took place at the Kennedy School’s Institute of Politics. I spent a fair amount of time watching the crowd before the talk began. Earlier I called Gustavo Dominguez’s bow tie his trademark, but there were a bunch of Ecuadoran men there in bow ties, so perhaps they are just more in fashion there than here. There was an Ecuadoran television correspondent there, speaking very rapidly into the camera. I am not sure whether Spanish reporters actually speak faster than English-speaking reporters or whether it just seems that way to non-Spanish speakers like me. There was some canned jazz playing in the background. I had a really prime seat, right behind Ambassador Cely, who was in the center of the front row. To the Ambassador’s right was William Delahunt, formerly U.S. Representative from the 10th District of Massachusetts and now of counsel to Eckert Seamans. There were several members of Ecuador’s executive branch present, though I didn’t recognize any of them. There was a military attache with a really terrific uniform with braids. I sat next to a Colombian gentleman who now works at MIT after a career as an architect and a fresh cut flower exporter in Colombia. We had an interesting talk about how fresh flowers get from Latin America to North America and elsewhere before President Correa arrived. I saw Duncan Kennedy there, dressed just as I remember him in a denim jacket with the collar turned up. Dunc, if you’re reading this, I still have my copy of your little red book!

Before the President’s speech, we were shown a video about Ecuador as a tourism destination, part of the Ecuador: ama la vida campaign. The video was stunning: rare birds and tortoises in the Galapagos; a surfer on a Pacific beach; a kayaker on a beautiful river. At first the audio had potential: a relaxed Latin instrumental version of the Beatles’ “All You Need Is Love.” But things quickly turned campy when a narrator—an American whose voice I could almost place—began to recite the lyrics of the song—all of the lyrics—very, very slowly in the style of William Shatner “singing” “Rocket Man.” I’m reprinting the full lyrics just so you have a sense for just how long the narrator went on:

There’s nothing you can do that can’t be done
Nothing you can sing that can’t be sung
Nothing you can say but you can learn to play the game
It’s easy

There’s nothing you can make that can’t be made
No one you can save that can’t be saved
Nothing you can do but you can learn to be you in time
It’s easy

All you need is love
All you need is love
All you need is love, love
Love is all you need

(Love, love, love)
(Love, love, love)
(Love, love, love)

All you need is love
All you need is love
All you need is love, love
Love is all you need

There’s nothing you can know that isn’t known
Nothing you can see that isn’t shown
There’s nowhere you can be that isn’t where you’re meant to be
It’s easy

All you need is love
All you need is love
All you need is love, love
Love is all you need

Nevertheless, the video received a round of applause.

Rafael Correa at HarvardPresident Correa received a warm welcome from the crowd. The first half of the event was an address, which he gave in English. The main theme of his speech touted his administration’s social and economic achievements and emphasized his administration’s platform, which seeks to rebalance the scales between labor and capital both within Ecuador and between Ecuador and its international partners, in order to make a transition from merely formal democracy to a real democracy that is not dominated by the traditional elites. At the risk of earning demerits from the US Chamber of Commerce, I have to say that the thrust of his political economy hardly seems radical in 2014, except perhaps to US big business. I mean, Capital in the Twenty-First Century is pretty much the book of the year. The president spoke knowledgeably and authoritatively about various measures of Ecuador’s economic progress and its development strategy, which is unsurprising giving his academic background in economics.

The Q&A was a little rockier. A few Venezuelans asked questions about President Correa’s support for Venezuelan President Nicolás Maduro in light of recent protests in Venezuela that have led to several deaths. In light of the news, why had President Correa defended President Maduro as someone incapable of repression? President Correa responded that the protesters in Venezuela had sought to use violence to destabilize the country and indeed had killed some policemen. The president claimed to have information showing that it was the protesters who were to blame, without explaining what the information was. I don’t know enough about the situation in Venezuela to comment: it was clear to me that both the questions and the answer were somewhat partisan.

Where did President Correa want to be in ten years? This is not such an innocent question, given that Ecuador’s constitution has term limits and that he will not, under current law, be able to run again when his term expires in 2017. He responded that he wants to retire, but that “circumstances can change,” and that he may not “be able” to retire if the people want or need him. The audience got the point and chuckled a little. To me his answer sounded a little bit like Robert Graves’s Augustus, eager to lay down his office and restore the republic just as soon as he could. Maybe George Washington would be a better example to emulate?

Is Ecuador considering long-term alternatives to an economy based in large part on natural resource extraction? Yes. The president emphasized the importance in the long term of shifting the economy towards a knowledge economy. Bonus: the student who asked the question was an Ecuadoran who, it turned out, was actually at Harvard studying on a scholarship received from the Ecuadoran government!

What about free trade and the Pacific Alliance? The president noted that Ecuador does not have a national currency, and he argued that it would be “suicide” for Ecuador to enter into a free trade union without control of its own monetary policy. So it’s clear that Ecuador will not be joining the Pacific Alliance while Correa remains president.

Are you not falling into the elite’s trap, someone asked, by restricting freedom of the press? The president invited the questioner to visit Ecuador to see for himself the freedom of the press in action. This answer was hardly satisfying in light of the El Universo affair. Indeed, if there is one respect in which I think President Correa is most clearly subject to criticism, it is in his treatment of the press. Letting people say dumb stuff is a sign of strength, not weakness (assuming for the sake of argument that President Correa’s criticisms of some press critics are substantively right).

The president clearly is not a fan of the State Department’s annual human rights reports, which, as long-time readers know, are critical of Ecuador’s judiciary. The basic thrust of the criticism was: who does the United States think it is to issue annual reports about other countries’ human rights practices, when the United States has not even ratified any of the Inter-American instruments on human rights? I think there are more significant ways to criticize the United States’s human rights record, but the Inter-American angle seemed particularly important to President Correa, in light of Ecuador’s acceptance of all of the Inter-American human rights instruments.

Finally—someone asks a question about Chevron! President Correa gave a highly simplified overview of the case from Ecuador’s perspective, emphasizing that the main case was between private parties and Chevron and that the state was not a party, and categorically denying executive interference with the judiciary in connection with the case. He criticized Chevron for first seeking and then rejecting a decision in Ecuador, and he criticized Judge Kaplan’s findings about Ecuadoran government interference in the case as flat out wrong. He then discussed the BIT arbitration between Chevron and Ecuador, complaining that the arbitrators had wrongly decided they had jurisdiction even though Texaco left Ecuador years before the BIT came into effect. And he finished strong. Ecuador was the victim of an “international campaign to destroy our reputation. Visit us! Put your hand in the pits left by Texaco, and it will come out black. It’s not possible to hide the truth.”

The event closed with a long, strange speech by a member of the audience who apparently was an Ecuadoran who had been in a NASA training program for astronauts and who had a plan to feed the Ecuadoran people. I’m not really sure what he was on about.

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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