Lago Agrio: FOIA Update

The latest batch of FOIA documents from the State Department have arrived. Here are some highlights:

  • In early 2013, as President Correa expressed his opposition to the BIT tribunal’s holding that it had jurisdiction of Chevron’s claim against Ecuador, there was some interest within the State Department about the jurisdictional basis for Chevron’s claim. As an email circulated within the embassy in Quito put it: “Pls refresh my memory why Chevron could invoke the 1998 BIT although it departed Ecuador in 1992.” One of the staffers in the embassy, Aaron Feit, put the question to Mahvash Siddiqui, with the Office of Investment Affairs in the Bureau of Economic and Business Affairs. She passed the question on to “our legal advisors” (Laura L. Conn, Lisa J. Grosh, and Lee M. Caplan), but she wrote: “My understanding is that Chevron invoked the BIT as a legitimate US investor that has protections under the BIT. It pursued international arbitration as it is a legitimate investment dispute.” Conn responds to the group, but whatever she wrote has been redacted.
  • In mid-2013, Bill Irwin, Chevron’s lobbyist, keeps the Department informed of a ramp-up of the Ecuadoran government’s PR efforts. It argued that the GOE was “engaging both within and without Ecuador with disparaging information about the company and providing links to information resources managed by the Lago Agrio plaintiffs … all while under orders from the arbitral tribunal and with corresponding treaty obligations to take all steps necessary to suspend enforcement of the judgment.” Let me just editorialize for a minute and wonder: has anyone noted the parallel between, say, the Ecuadoran government’s use of the courts to intimidate critics in the press (e.g., the El Universo case) and Chevron’s use of the courts to push back against the other side’s PR efforts? I mean, Chevron publishes disparaging information about the government of Ecuador and Donziger every day. Chevron may say that the difference is that when it disparages its opponents, its accusations are true, while when its opponents disparage it, their accusations are false, but that’s not really how freedom of speech on matters of public concern is supposed to work. I’m just saying.
  • The Department showed some concern that its own communications with Chevron had gotten caught up in discovery in the BIT arbitration. Here is an email from February 2013:

    Bill Irwin of Chevron called. Chevron has a private cause of action RICO case against Ecuador, alleging a criminal conspiracy in the $40 bn judgment against Chevron over the oil pits in northern Ecuador.

    As part of mutual discovery, Chevron has had to turn over something like 200k ppgs of technical documentation. Ecuador’s attorneys have also subpoenaed Chevron’s government affiars documentation related to the case. This will show a broad Chevron effort to tell its story to various stakeholder,s including the media, the Hill, and the executive, including State. To the extent we’ve written Irwin or he has memorialized our conversations, those documents presumably will be turned over to Ecuador’s attorneys. He says the whole haul for government affairs documentation is about 27k ppgs.

I will keep you posted as more comes in. There has been some interest from reporters in the FOIA stuff, and I am hopeful that we will see a story in the press about it before too long.

Update (4/24/14): After some feedback from Chevron, I have modified my second bullet point. I think the original post was a little confusing, because it mixed up two issues: (1) the use of courts to pressure critics; and (2) Chevron’s own PR campaign. Still, it is odd that Irwin seems to think that Ecuador’s PR campaign was somehow at odds with Ecuador’s international obligation to suspend the effectiveness of the Lago Agrio judgment.

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.

One thought on “Lago Agrio: FOIA Update

  1. re your thoughts on Chevron’s apparent hypocrisy. Two things come to mind. First, the audience that matters are the US population and political elite. As to Ecuador’s use of its own courts, presumably the parallel holds true in the sense that Correa is mindful of popular opinion in Ecuador. But I think this is just a case of Chevron and Ecuador attempting to take advantage of forum biases, Chevron in order to avoid the judgment, Correa to suppress dissent and cast his political problems as caused by outside (likely yanqui) bad actors.

    Second, if you accept that using the courts to disparage your opponents is okay, then it hardly seems reasonable to expect Chevron to do so but insert a disclaimer into its filings to the effect that what it is doing is just part of its PR campaign or that “these are only allegations and are not true until proven in a court of law and upheld by an appellate court”. That defeats the entire purpose, no?

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