Comments on: Lago Agrio: What’s Left For Trial, And What’s Next In Canada?

By: Antonin Pribetic

Antonin Pribetic — Fri, 27 Jan 2017 05:21:28 +0000

In reply to Douglass Cassel. Thanks, Douglass. Here is the link to Justice Hainey's decision denying plaintiffs' motion to add CCCC as a defendant based on its 100% share ownership of Chevron Canada: Yaiguaje v Chevron Corporation, 2017 ONSC 604 (CanLII).

By: Douglass Cassel

Douglass Cassel — Wed, 25 Jan 2017 19:50:58 +0000

In reply to Ted Folkman. Excellent comments from Ted and Antonin Pribetic. It sounds to me as if Justice Hainey got it right, both in the Chevron defenses he dismissed, and in those he did not. My own observations appear as a reply to Ted's post of yesterday.

By: Ted Folkman

Ted Folkman — Tue, 24 Jan 2017 16:27:20 +0000

In reply to Antonin I. Pribetic. Thanks, Antonin, good to hear from you! The legal blogosphere is poorer without you. Given the judge's decision, there is clearly something left to be litigated on the personal jurisdiction front. On the issue of an appeal, the plaintiffs already have press releases out that suggest the appeal is a slam-dunk, but in general their press releases are aimed at, ah, low-information readers. Readers interested in Greg Shill's ideas can find more here and here, and more about the Ryckman case here.

By: Antonin I. Pribetic

Antonin I. Pribetic — Tue, 24 Jan 2017 15:37:51 +0000

Great blog coverage, Ted. On the jurisdictional issue, the Supreme Court of Canada affirmed the Court of Appeal for Ontario’s decision on jurisdiction; namely: the foreign court (Ecuadorean court) had a real and substantial connection with the subject matter of the dispute and/or with the defendant, that the Ontario court has jurisdiction to determine whether the foreign judgment should be recognized and enforced in Ontario against Chevron Corp. With respect to Chevron Canada, in view of its bricks‑and‑mortar business in Ontario and its significant relationship with Chevron, the Court of Appeal found that an Ontario court has jurisdiction to adjudicate a recognition and enforcement action that also named it as a defendant. However, Justice Hainey’s decision to dismiss the claims against Chevron Canada, rejecting the LAP’s arguments on ‘corporate separatedness’ and ‘corporate veil-piercing’ will likely be the subject to further appeal. As far as judgment arbitrage is concerned, the practice of “rubber stamping” a second hand judgment (i.e. the recognition of a recognition judgment) has been criticized by some as the “laundering of foreign judgments” (See, Morgan Stanley & Co International Ltd v Pilot Lead Investments Ltd [2006] 4 HKC 93; [2006] HKCFI 430 (High Court of the Hong Kong Special Administrative Region); Clarke v. Fennoscandia Ltd [2004] SC 197 (Scottish Outer House), per Lord Kingarth at ¶ 31.). Your colleague, Greg Shill has apparently coined the phrase and has commented on the Delaware decision in Alberta Securities Commission v. Ryckman, 2015 WL 2265473. I am unaware of any Canadian jurisprudence addressing this, so it may be a matter of first instance. Best, AIP

By: Ted Folkman

Ted Folkman — Tue, 24 Jan 2017 13:45:41 +0000

One other thought: Chevron may seek to prevent the trial by persuading the court that in light of the result for Chevron Canada, the only point of a trial would be to set up a judgment arbitrage opportunity in a third country. This would lead, maybe, to an interesting decision on the permissibility of the arbitrage strategy.