Lago Agrio: Chevron’s Take On Guerra in the Second Circuit
Posted on November 20, 2015
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.