Lago Agrio: Chevron’s Take On Guerra in the Second Circuit

Chevron has filed its opposition to Steven Donziger’s motion asking the court to take judicial notice of Judge Guerra’s testimony in the BIT arbitration.

I have to say I am more or less in agreement with the main points of this brief, as my prior post may suggest. Just to summarize: Chevron rightly points out that Donziger has not sought to overturn any of Judge Kaplan’s findings of fact on appeal. So in a very broad sense, what is the relevance of evidence that Guerra was a liar? But even if you think it’s important to know that Guerra is a liar, Chevron again rightly points out that Judge Kaplan knew it and credited his testimony anyway. And though there is a risk that the Canadian court, or the BIT tribunal, might reach a different conclusion about Judge Guerra, so what? There is no rule of law against inconsistent conclusions in different tribunals, unless one of the doctrines we have to deal with such things—issue preclusion, abstention, or the like—applies.

In short: I’ve already given my reasons for deep skepticism about Judge Guerra. If I had to guess I would guess that the BIT tribunal will not credit his testimony. But as I suggested in my last post and as Chevron argues now, it’s difficult for me to see what that really has to do with the appeal in the Second Circuit.

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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