Lago Agrio: Amicus Briefs In Support of the Donziger Petition
Posted on May 16, 2017
A group of international law scholars led by Professor Donald Anton, have filed an amicus brief in support of Steven Donziger’s petition for certiorari. The gist of the brief is that under principles of comity the courts of A should not entertain collateral attacks on the judgments of B unless forced to do so, which really will only happen if a party seeks recognition of the judgment of B in the courts of A.
Well, you may say, Judge Kaplan and the Second Circuit didn’t do that. The LAPs are free to try to enforce the Ecuadoran judgment anywhere in the world except the United States. Yes, the amici say, but Judge Kaplan imposed a constructive trust on them—on three of them, anyway‐so their right to seek recognition elsewhere is illusory.
I have to say I don’t find this persuasive at all. To me the case seems analogous to a decree requiring a person within the personal jurisdiction of the US courts to convey property obtained by fraud. The US court can’t actually force the conveyance, but it can exercise jurisdiction over the person of the defendant and take steps to compel him to convey the property, right? The scholars characterize what Judge Kaplan did as “worldwide relief,” but in fact it seems to me to be almost exactly the opposite. It is not relief in rem, it is relief in personam.
The Republic of Ecuador’s amicus brief makes similar comity points that are subject to similar comments, though I think the merits of Ecuador’s brief are much stronger than the merits of the scholars’ brief in other respects. Ecuador makes the point that Chevron did not exhaust its remedies in Ecuador. In particular, it never brought proceedings under Ecuador’s Collusion Prosecution Act, which provided a way to attack the fraud in the judgment under Ecuadoran law. This is particularly important to my mind because while Chevron did show fraud in the Lago Agrio case in the court of first instance, it did not show that the appellate court that considered its appeal, or the Ecuadoran judiciary generally, were systematically incapable of correcting errors. The law should be that when the foreign judiciary overall is adequate, litigants should look to the foreign judiciary to challenge fraud or other problems in the foreign trial. The problem with Ecuador’s point, I suppose, is that this statement of what the law should be is an inaccurate statement of what the law is. (The brief made some other arguments, too, which I don’t consider here).