Comments on: Lago Agrio: Tribunal Says US Decision Has No Preclusive Effect

By: Ted Folkman

Ted Folkman — Wed, 07 Sep 2016 01:28:11 +0000

In the post, I noted the difficulty of determining, from the publicly available information, whether Chevron had in fact sought to give the New York judgment preclusive effect. Chevron spokesman Morgan Crinklaw sent me the letter Chevron submitted to the tribunal with the Second Circuit opinion, which does not include a request to give the New York judgment preclusive effect. I will update this with any information I can gather about what positions the parties took. Certainly, Chevron wants the tribunal to give the New York decision persuasive effect if not preclusive effect.

By: Ted Folkman

Ted Folkman — Tue, 06 Sep 2016 13:15:03 +0000

In reply to Doug Cassel. I don't disagree with you that this is a potential issue, though I think you'll agree with me that it's not clear that Cabrera would be treated as an agent of the state for these purposes. Suppose a US court appointed an independent expert under FRE 706, and it turned out the expert was corrupt and secretly working for one of the litigants. It seems very strange to me to say that the court would be deemed responsible for the corruption either as a matter of US law or as a matter of international law.

By: Doug Cassel

Doug Cassel — Tue, 06 Sep 2016 10:45:46 +0000

Dear Ted,

Your suggestion that the Cabrera report was a fraud on the Ecuadoran court–even if true (I have my doubts)–does not necessarily get Ecuador off the hook. Under international human rights law, at least, states are held liable for the actions of their agents, even when those agents act in violation of the state’s law and in contravention of their instructions. Cabrera was a court-appointed expert and arguably an agent of the Ecuadoran state. Obviously he knew of his participation in the fraud. So his knowing participation alone may suffice to engage Ecuador’s state responsibility for the phony expert report.