Feb 232012

For decades, the United States was considered a leader in international law and human rights, and the American public largely supported their government’s efforts in developing and abiding by international law.

While America’s commitment to international law and human rights has never been beyond reproach, many Americans’ view of international law has recently soured.  According to the Centre for Research on Globalization:

“Americans are increasingly embracing policies that undermine the international rule of law, with self-identified liberals, in particular, seemingly reversing their positions on matters such as the Guantanamo prison camp, extrajudicial assassinations and arbitrary detention.” (link)

This shift in perspective is likely caused, at least in part, by the rise of international terrorism and the Bush and Obama administrations’ practices of long-term detention, use of military tribunals, and targeted assassinations.

Americans’ decreasing support appears to be motivated by fear.  American resistance to international principles stem from a belief that such laws weaken the country’s defense and leave it vulnerable.  Much of this fear is related to many Americans’ negative view of Middle Eastern culture and their fear of Islamic-based Sharia law.  In many respects, Sharia law is oppressive, violent, and a barrier to free society.

While this fear is not wholly unreasonable, it is crucial that America does not retreat too far.  Americans must remember the benefits of international law.

International principles create a framework for nations to negotiate and adjudicate disputes, create economic opportunities, and hold oppressive and abusive political and military leaders accountable.  Unfortunately, this framework becomes more tenuous when dealing with international groups acting independent of a nation state; however, even when one nation or group violates or threatens international standards, America must hold itself and it’s peers to the standards of international law.

Of course, nothing is ever this black and white, especially in the international arena, but America has a legal and moral obligation to support well-founded rules of international law.

Jan 182011

Forgive my foray into the world of youtube, but I have come across some clips from the documentary “Crude” that might be of some interest.

Last week a Federal Judge in New York denied an appeal to shield the documentary film’s footage.  The AP, via the Wall Street Journal, has the story.  Now, more clips from the documentary, which chronicles the ongoing Ecuadorian legal battle between Chevron and the Ecuadorian government, have surfaced.

Regardless of your take on the case, many of these videos are fairly fascinating.  Check them out here.

Also of note is a new column by Michael D. Goldhaber of the AM Law Daily.  The article is titled, The Global Lawyer: Judging Chevron in Ecuador on the Evidence.  It provides a basic overview of the facts of the case and is worth a read.

Jan 032011

Happy New Year!

I begin 2011 with a topic I covered heavily in 2010, the ongoing Chevron litigation in Ecuador.  The New York Times reports on Chevron’s battle to obtain footage from the documentary film, “Crude.”  You can read John Schwartz and Dave Itzoff’s article here, which, among other things reports on the filmmaker’s concern that the ruling will silence  those interviewed for documentaries and other journalistic purposes.  The Chevron/Ecuador litigation is unique, and I highly doubt that the rulings would be construed in a manner that would oppress speech in the future, but take a look for yourself.

Nov 092010

The Chevron/Ecuador litigation continues, and of course, it keeps getting more interesting.

For several weeks, I have been posting about the documentary film Crude. Steven Donziger, an Ecuadorian plaintiff’s attorney, has been accused of fraudulent activity associated with the Chevron case, and Chevron claimed that outtakes from the film offered evidence of said fraud.

Chevron sought to discover footage and documents related to the documentary, the court agreed, and Mr. Donziger ultimately moved to suppress the subpoenas.   Last week, New York District Court Judge Lewis A. Kaplan refused to squash the subpoenas, thus allowing Chevron to continue its discovery.

Now, the public knows a little more about the footage at issue…

I imagine the Ecuadorian plaintiffs’ lawyers are none too pleased because many of the questionable clips have appeared on Law.com’s Corporate Counsel blog.  Head here to watch the clips to discover what Chevron was crowing about.

UPDATE: There are more tapes at Law.com’s Corporate Counsel blog.  Click here for continuing coverage.

Oct 252010

Late last week, a New York Federal Court has ruled that Chevron may dispose Steven Donziger, the lead attorney representing the Ecuadorian plaintiffs in the Ecuador/Chevron litigation.   According to Alison Frankel’s Law.com article:

“The outtakes contain substantial evidence that Donziger and others were involved in ex parte contacts with the court to obtain appointment of the expert; met secretly with the supposedly neutral and impartial expert prior to his appointment and outlined a detailed work plan for the plaintiffs’ own consultants; and wrote some or all of the expert’s final report that was submitted to the Lago Agrio court and the Prosecutor General’s Office, supposedly as the neutral and independent product of the expert,” Kaplan wrote.

Moreover, the judge concluded, the outtakes contained evidence that Donziger lobbied for criminal charges against the former Chevron lawyers in order to pressure Chevron in the Lago Agrio case.

Based on that evidence, the judge found, the need to obtain evidence from Donziger outweighed the general prejudice against deposing adversary counsel in civil litigation, particularly because Donziger was not acting only as a lawyer for the Ecuadorian claimants (whom he cannot actually represent in Ecuador).

“His principal functions have included lobbying, media and press relations, and politics,” Kaplan wrote. “He has acknowledged in the outtakes that the purported civil litigation in Ecuador ‘is not a legal case. It’s a political battle’ in which ‘we need to get the politics in order in a country that doesn’t favor people from the rainforest.’”

This step is highly unusual, as opposing counsel is typically not deposed in litigation.  This deposition will further Chevron’s claims against the Ecuadorian counsel and make it more difficult for the Ecuadorian plaintiffs’ to ultimately enforce any judgment against Chevron in the United States.

Oct 052010

My mind is reeling from the string of news articles suggesting that developing countries could sue nations for damages incurred from global climate change.

Many nations claim harm from global climate change, including small nation islands facing rising ocean waters.  According to the Foundation for International Environmental Law and Development, developing countries claiming to be harmed by climate change could sue industrialized nations.  Theoretically the countries could sue for injective relief (forcing industrialized nations to curb emissions), financial damages, or both.

This seems unlikely for many reasons.

As Edward Cameron, former advisor to the Maldives, said in a New York Times article, there are issues relating to how the suit is brought and what political consequences bringing such a suit may have on a developing nation (i.e., the withdrawal of foreign aide, etc.).  On the flip side, Cameron speculates that threatened litigation may push countries like the US to adopt climate change reform rather than face the uncertainty of international litigation.

I do not see how such a case could ultimately succeed.  Assuming you passed all of the procedural and evidentiary hurdles, will global power players (and chief polluters), i.e. industrialized nations, allow a judgment against a nation knowing that they would likely face the same liability?

Sep 202010

Ecuadorian judge Leonardo Ordonez has declared the conclusion of the Chevron trial.  The judge is set to consider the evidence and make a ruling by March 2011.  Mercedes Alvoro covers the story for the Wall Street Journal.

This case has stretched two continents and multiple jurisdictions since 1993, and a ruling by the Ecuadorian judge will not be the end of the case.  Even if the Ecuadorian judge rules in favor of the plaintiffs, there will be multiple appeals, and any final judgment must be enforceable in a jurisdiction where Chevron has sufficient assets (i.e., the United States) to fulfill the judgment.

Continuing issues of relevance in the case include the fraud claims made by Chevron and the plaintiffs, choice and conflicts of laws analysis, and how to get a foreign judgment enforced by a US court.  The latter issue is often one of great concern.  After all, what good is a paper judgment if it cannot be enforced?

Enforcement of foreign judgments is a tricky issue, but there are some great texts on the topic.  Later this week I will highlight some of them, including a great book by Professor Robert E. Lutz.

Meanwhile, all eyes in this case are on judge Ordonez and the many judges hearing claims in US courts.

Sep 152010

As Chevron continues to fight an Ecuadorian lawsuit in US courts, the Ecuadorian plaintiffs have begun fighting Chevron using the same tactics.  Ecuador has asked a San Francisco court to allow discovery regarding an allegedly secretly-videotaped ex parte conversation with an Ecuadorian judge.

Businesswire covers the news as does Daniel Fisher’s blog on Forbes.com.

Ecuador and the Ecuadorian plaintiffs argue, as Businesswire suggests, that Chevron has engaged in extensive fraud, including attempting to trap a judge in scandal.  The attorney for Ecuador claims that both Chevron and Ecuadorian agents met ex-parte with court officials, and that it does not violate any Ecuadorian legal regulations.

The plaintiffs may indeed show fraudulent activity by Chevron’s agents; however, Chevron’s fraud theory is not solely based on the existence of ex-parte communication, but whether there was collusion between the Ecuadorian court and the plaintiffs/plaintiffs’ attorneys on key elements of the trial, namely the court-appointment of a crucial expert witness.