I’ll briefly respond to one point and add one observation.

As someone who watched things unfold, I can say that Ted’s speculative claim that “the reason Chevron’s threats were so potent was because there was some underlying wrongdoing that made Patton Boggs and the others perceive a serious risk of liability” is wrong. It is true, as he says, that some “allies” like Burford were “spooked,” in the sense that as soon as they heard Chevron’s allegations they starting looking for the exit (including, in Burford’s case, by coordinating with Chevron behind their own clients’ backs). Others were the victims of flat-out, unapologetic economic extortion campaigns, such as folks from Stratus Consulting, the company that Chevron brought to its knees by crushing it with litigation, intervening in a dispute with its litigation insurer to make sure the insurer would not cover the litigation expenses, and sending smear-campaign letters to Stratus’ other clients. (How we all tolerate this kind of conduct as just “part of the game” is beyond me.) But allies who took the time to unpack Chevron’s allegations and really understand the facts did not end up abandoning ship.

Ted thinks Patton Boggs is an example of someone “spooked” on the facts, like Burford, or a victim of extortion, like Stratus. Not so. In reality, there were two Patton Boggs—the team that actually worked on the case and understood it, and the rest of the firm that couldn’t care less (and was reportedly mystified at how the firm ended up going up against a wealthy corporation like Chevron in the first place). A great untold story in this case is the heroism of the Patton Boggs team on the case. These men and women worked like dogs, for years, long past when there was any money coming in or any prospect of money. They faced constant attacks not just from Chevron but from corporate apologists in their own firm. And they never gave up on their clients. The larger firm settled with Chevron without telling them, to salvage a merger that was driven by economic considerations far beyond the Chevron case. The team that worked on the case was forced out of the firm in the process. Yet to this day they are proud of what they did and they should be.

Now my observation. Ted’s approach to the human rights perspective here—basically, encouraging “askance” as to whether the Ecuadorian case defenders should really be defended in light of the charges made against them by the very opponent the defenders are resisting—is exactly why the whole “human rights defender” and “environmental defender” movement, despite overflowing attention in the last few decades, is often considered weak at best. A recent report tallied 156 human rights defenders killed in 2015, with numbers of killings and harassment increasing year by year. Members of our team in Ecuador have braved anonymous death threats and other forms of harassment for literally decades.

I see the problem as a lack of clarity in the moral framework underlying the defender movement generally, as well as a certain degree of naiveté. On the one hand, it cannot be a gateway requirement to a vigorous defense that the defender prove she is free of fault or blemish, that her cause is pure and just, or even wise. We have to recognize that human rights and environmental defenders, because they take on immensely difficult and stressful causes and powerful opponents, might even be more prone to errors and controversies than your average person. In any event, we have to commit to defend even deeply unattractive individuals, and even potentially misguided or mismanaged causes, or the whole system fails. (And please, do not push the attack button and apply this to the Ecuador case right now; I am talking about principle.) As someone who does a fair amount of criminal defense work, I understand this principle instinctively and deeply, but non-lawyers and those who have only worked in the civil realm often don’t, even when they claim they do.

On the other hand, we have to recognize the core problem that the “defender” framework is really meant to confront: misdirection. Human rights abuse can and should be fought from every angle. The emphasis on defending defenders is supposed to be a recognition that abusers will seek to distract attention away from the original problem by attacking, or simply redirecting attention to, the individuals or movement trying to call attention to the original problem. Following a government’s or corporation’s lead by focusing on the alleged sins of the defender, whatever they are, is an utter capitulation to this insidious tactic.

Perhaps there are instances when some capitulation is necessary, when some attention must be paid to the defender. My sense is that the legitimate number of these instances are far, far less than the number of instances at which abusers are simply winning at the misdirection game. At a minimum, a principled defender of defenders should only deign to have her attention drawn to the defender with full awareness of the larger context. So, with the Ecuador case, you have to begin an analysis by recognizing that Chevron’s multi-billion dollar effort to taint and demonize the Ecuadorian plaintiffs and Steven Donziger is fundamentally an effort at distracting attention from the situation on the ground in Ecuador, and, with respect to Donziger, an effort to take down someone they recognize as a potent adversary. One can still be open to seeing a justice interest for Chevron within this framework, but if you cannot accept the framework, you have lost the purpose and vitality of the movement to defend the defenders.

In his search for a justice interest for Chevron, Ted, breezing past things like Chevron’s paying of fact witnesses, extorting people like Stratus, spying and violating attorney-client privilege, and constant political strong-arming, not even to mention the massive contamination in Ecuador which I believe he has seen up close, goes back to the dispute over the Cabrera report, submitted in the Ecuador trial process in 2008. My own view as I have maintained in the past is that the Cabrera issue is overblown and even trumped-up in the sense that it arose from uncertainty about expectations and obligations in the under-developed world of provincial Ecuadorian litigation practice, and that Chevron has never been able to specify, as the Ecuadorian Supreme Court has pointed out in its unanimous decision, exactly what laws or rules Chevron thinks were violated. But no matter what you think of Cabrera, there is no question that the issue was brought to the attention of the Ecuadorian trial court, appellate court, and Supreme Court; the Ecuadorian judiciary fully addressed the issue, and, appropriately, chose not to throw out a decade of litigation affecting tens of thousands of lives over an issue that could be and was effectively resolved. There should be no get-out-of-jail-free cards for intentionally dumping billions of gallons of toxic waste into the environment, and even if there were, the Cabrera issue certainly wouldn’t justify giving one to Chevron. (Which is why Chevron and its agents started buying testimony and making stuff up about bribery and so forth, because even they recognized that the Cabrera wasn’t going to take them anywhere.)
To the extent people think the Ecuador case is different because there are “factual findings” from a federal judge, read about that judge and the “Dickensian farce” of a process he oversaw in the letter and the other materials out there.

Ultimately, the Ecuador case is about the contamination in Ecuador, not about the distracting and self-serving narratives offered by Chevron. The UN Special Rapporteur charged with leading the defender movement is well-equipped, I believe, to recognize this. He would not be alone. While Ted’s “askance” is perhaps shared in some parts of the human rights world, perhaps the world of corporate lawyers with an academic (albeit sincere) interest in human rights like Ted, the world of individuals and organizations that really do the hard work of defending human rights and environmental causes—who know how hard it is and take body blows constantly in their own work—are staunchly behind Steven and the Ecuadorian plaintiffs, as shown by last year’s letter challenging the legitimacy of Chevron’s RICO tactic, signed by organizations such as Greenpeace, The Sierra Club, 350.org, Rainforest Action Network, the Institute for Policy Studies, Global Exchange, Avaaz, Pachamama, Rights Action, and many others.

Although I am distressed, as many are, about the state of human rights and environmental defender protection movement, I also believe we are starting to turn a corner, and that a reassessment of the last five years of the Chevron case is going to be part of that process. The letter to the Special Rapporteur, which unfortunately has thus far not been responded to, was made public in part to widen the call to consider these issues. I welcome any further comments or exchanges.

The post Aaron Marr Page on the Special Rapporteur Letter appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

Chris Whytock and Cassandra Robertson have produced an excellent and timely piece of scholarship and kudos to Letter Blogatory for so keenly picking up on its import and hosting this symposium.

I must pause to note how sobering it is to realize that Whytock/Robertson’s work is so timely because only now, after a good half century of vigorous forum non conveniens (FNC) practice, are we seeing a FNC-dismissed foreign judgment readying to appear for enforcement. As Whytock/Robertson remind us, only 15% of FNC cases are actually refiled in the supposedly more convenient foreign forum, a reality long known to scholars, lawyers, and judges, even as they escort these plaintiffs like lemmings off a cliff, replete with inane chatter about how convenient it will be for them where they are going. Our system’s ability to neatly ignore or accept this reality, especially in the context of what is supposed to be a doctrine of equity, speaks volumes and is helpful to keep in mind as we start wading into the tricky realm of judging “adequacy” and assessing differences between national judiciaries and differing legal cultures.

I believe Whytock/Robertson correctly describe and analyze the tension between foreign judicial “adequacy” as pleaded by defendants at the FNC and enforcement stages, and within the boundaries they set I believe their proposed solution is necessarily correct. Our system does not ordinarily tolerate rank hypocrisy, and a defendant’s flip-flop on a complex issue like foreign judicial adequacy, neatly timed to its own self-interest, should be seen and rejected in this light. The onus seems clearly on those who would allow defendants to change their position at the enforcement stage to explain with clear reasons why we shouldn’t let common sense estoppel do its work here. Some may worry about defendants who genuinely didn’t realize that success on their FNC motion would foreclose a systemic inadequacy defense at enforcement—or, more realistically, defendants who noticed Whytock/Robertson’s “gap” earlier and feel entitled to capitalize on it before it closes. Whytock/Robertson’s proposal would address these concerns gently, by more clearly putting defendants on notice at the FNC stage and only applying to cases going forward. Personally, I’d say that past FNC defendants had plenty of notice implicit in the generally applicable principles of judicial and equitable estoppel, but if extra caution is what is required to implement the correct rule going forward, so be it.

I am not sure, however, whether the real action is likely to play out out on the particular battlefield Whytock/Robertson describe. As they note, FNC is almost never denied on the adequacy prong, and I would suggest that at least in part this is because judges can get to the same result on the second prong with the far less confrontational public/private convenience factors, without having to wholesale impugn foreign judicial adequacy. Whytock/Robertson’s proposed reforms at the FNC stage would not stop the next Chevron/Texaco from successfully arguing that, apart from adequacy, it is more convenient for it to litigate in a jungle 5,000 miles away than in a federal courthouse 20 miles from its headquarters.

A similar dynamic is suddenly brewing in the enforcement context, where, traditionally, judges did not have lower-hanging fruit available to avoid making wholesale determinations about foreign judicial adequacy. Most importantly, the original Uniform Act, as Judge Posner wrote in Society of Lloyds v. Ashenden, 233 F.3d 473, 477 (7th Cir. 2000), “does not support [the] retail approach” of challenging particular results in particular cases, but rather requires defendants to successfully impugn the foreign system “en gross.” The revised Uniform Act, however, appears to welcome the retail approach by offering judgment debtors two new discretionary grounds to resist enforcement, 4(c)(7)-(8), by alleging “circumstances that raise substantial doubt” about the foreign court or other due process issues with the specific proceeding.

The wisdom of revised Uniform Act in offering these new grounds is questionable. The comments offer little insight, and the ULC summary and other discussion either ignores the additions or at most suggests they were added to “correct and clarify gaps in the 1962 Act revealed in the case law over the last 40 years.” But courts’ rejection of the “retail approach” was hardly a “gap”: as Posner explained, it was a considered decision, essential to the “streamlined, expeditious method for collecting money judgments” that the Act seeks to achieve. I suspect (from experience) that defendants will not find it difficult to repackage their frustrated arguments from the underlying litigation—not to mention any actual errors “of law or of fact” that under Hilton v. Guyot, 159 U.S. 113 (1895), and the traditional rule would be unavailing on enforcement—into alleged due process issues or circumstances raising “substantial doubt” about a foreign court’s integrity. Even where such repackaging wouldn’t prevail on the merits, it may be enough in many cases to destroy the economic rationale behind enforcing some smaller judgments and in general does away with the hope for a “streamlined, expeditious system.”

Of course, such repackaging is a concern with the traditional discretionary factors as well, as the Chevron case so dramatically illustrates. Every argument Chevron lost at trial, it seems, eventually morphs into a violation of due process, then when the court rejects the due process claim becomes a fraud on the court, then when the court rejects the fraud claim becomes a fraud, then when the court rejects the fraud claim becomes a fraud by the court on Chevron. As its losses have grown, the “fraud” this poor company is suffering has grown proportionally: by last count, it now includes not just the plaintiffs and all their diverse experts and lawyers (including such prominent firms as Patton Boggs, Motley Rice, and Keker & Van Nest), but the Ecuadorian trial court itself, the three-judge appeals panel that affirmed the trial court, and soon, perhaps, the 21 judges on Ecuador’s National Court of Justice, not to mention Ecuador’s president, its national oil company, an international cabal of environmentalists and financiers, and any nation that would dare consider enforcing the judgment. For a full roster of “the conspiracy,” see Doug Cassel’s post.

Packaged as “fraud,” much of this nonsense will be cut out by the intrinsic/extrinsic rule, and the rest will be dealt with by common sense—as will other overwrought allegations of Ecuador’s incompatibility with due process. Despite some dramatic counter-examples, I still believe judges are pretty good at seeing through the self-serving allegations of a frustrated litigant, and I still have faith in the integrity of the overall comity-based scheme so memorably described by Judge Cardozo in Loucks v. Standard Oil, 120 N.E. 198 (N.Y. 1918), wherein “courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness” and even more importantly “are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home.”

Of course, such restraint and humility does not always prevail. In the Chevron case, last year we saw a district judge issue an unprecedented global injunction under the Declaratory Judgment Act enjoining any attempt to enforce the Ecuadorian judgment in any country in the world, after making a finding on two weeks’ briefing (and relying “almost exclusively on the declaration of … an avowed political opponent of the country’s current President, Rafael Correa,” see Naranjo, infra) that Chevron was likely to be able to show that Ecuador “does not provide impartial tribunals or procedures compatible with the requirements of due process of law.” Try explaining that piece of judicial workmanship to your foreign national lawyer colleagues: not easy.

But that injunction was subsequently, and rather sternly, vacated the day after oral argument on appeal by the Second Circuit, which emphasized in its published opinion a very “Cardozian” sort of humility, applicable not just when a court considers declaring “that another country’s legal system is corrupt or unfair” but also before it considers pronouncing on issues pertaining to the legitimacy of a foreign judgment under foreign law and how “the laws of France, Russia, Brazil, Singapore, Saudi Arabia or any [other] countries with widely varying legal systems” might address those issues. Chevron Corp. v. Naranjo, 667 F.3d 232, 244 (2d Cir. 2012); see also In re Chevron Corp., 650 F.3d 276, 294 (3d Cir. 2011) (“Though it is obvious that the Ecuadorian judicial system is different from that in the United States, those differences provide no basis for disregarding or disparaging that system. American courts, though justifiably proud of our system, should understand that other countries may organize their judicial systems as they see fit.”).

In summary, while I think that Whytock/Robinson’s proposal of more rigorous FNC standards and subsequent estoppel is the right approach to the “gap” they identify, and further that estoppel is certainly appropriate wherever Chevron will attack Ecuadorian judicial adequacy as a general proposition (as it must in New York, which has not adopted the new grounds of the revised Uniform Act), the larger reality is that the Ecuadorians don’t need estoppel to prevail in enforcement proceedings, and estoppel if applied still won’t deal with Chevron’s repackaging its frustrated underlying complaints into “fraud,” violations of “public policy” or “natural justice,” or whatever else the enforcement exceptions of the local jurisdiction require. The Ecuadorians will dispense with these objections on their merits, even though, after 20 years of litigation, we are getting perilously close to the “lifetime of litigation” “until hell freezes over” that the company’s general counsel promised years ago and its still the company’s official policy today (a bald-faced abuse of process that warrants its own consideration). All the Ecuadorians need, fundamentally, are enforcement jurisdictions that exercise the basic tenets of mutual respect for the rule of law as they exist in different jurisdictions, and a dose of the humility that Judge Cardozo described. In one of Chevron’s early U.S. discovery actions, the Ecuadorians’ lawyer asked the judge to at least suspend his judgment on the merits of Chevron’s various fraud claims until the Ecuadorian court of primary jurisdiction (and with expertise in the applicable law) could make its own determination. “Believe me, if this were the High Court in London, you can be sure I’d wait,” the judge responded—his way of telling the lawyer that, no, he was not likely to wait on anything from anybody in Ecuador. (“About the same as the likelihood that the Ecuadorian Air Force is going to take over New Jersey,” to borrow another of his quips.) This sort of double standard is inappropriate and troubling. To be blunt, it is seen by the Ecuadorians as part and parcel of the arrogant and even racist mentality that led Chevron to dump 16 billion gallons of produced water into the waterways of a delicate ecosystem relied on by indigenous groups and other residents for their sustenance, rather than injecting it into underground formations as it would have in the United States (or in London).

For international lawyers, I think it is not too much to say that this mentality is poison for the efficient functioning and long-term survival of a what is fundamentally a comity-based system (and likely to remain so for quite some time) in an increasingly global and multipolar environment. As Letters Blogatory and my fellow symposium participants have been quick to recognize, the final chapter of the Chevron case is going to tell a powerful story about the international law of our time. Stay tuned.

The post A Response to the Whytock/Robertson Proposal appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.