Saturday, July 2, 2011

IntLawGrrls join other international law professors to weigh in on transnational environmental case

A group of international law professors has filed an amicus brief on behalf of the Ecuadorian defendants in Chevron v. Donzinger, which is currently before the U.S. Court of Appeals for the Second Circuit.
The case involves Chevron’s attempt to block a judgment handed down in Ecuador, which awarded indigenous Ecuadorians $18 billion in damages for the devastations associated with oil production in their traditional lands.
On March 7 of this year, Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York issued a preliminary injunction that prevented the Ecuadorian plaintiffs from enforcing the judgment. In a remarkable step, the injunction barred the plaintiffs from enforcing the judgment (which incidentally had not yet been issued at the time the injunction was granted) in any jurisdiction in the world. The U.S. court thus asserted worldwide exclusive jurisdiction to determine whether an Ecuadorian judgment should be recognized and enforced.
The amicus brief on behalf of international law professors, ably led by Don Anton of the Australian National University College of Law, takes issue with this unprecedented and sweeping assertion of jurisdiction. IntLawGrrls Rebecca Bratspies, Naomi Roht-Arriaza, and Linda Malone were among the signatories. As my colleagues and I wrote:

The action of a single American trial judge, essentially ordering the preclusion, in pre-emptive fashion, of all courts in the world outside of Ecuador from independently deciding the issues of recognition and enforcement is an extraordinary breach of comity.

While not part of the amicus brief, which focuses only on international law issues and not on the underlying merits, the deep hypocrisy of Chevron’s actions is worth noting.
The case, which has lasted 18 years, was originally filed in New York (the home jurisdiction of Chevron’s predecessor in interest, Texaco). The only reason it wound up in Ecuador was that Chevron/Texaco argued vociferously that Ecuador, rather than New York, was the appropriate forum. In its court filings, Chevron touted the ability of the Ecuadorian courts to “provide a fair and alternative forum.”
Chevron ultimately persuaded the U.S. courts to dismiss the claim on forum non conveniens grounds. However, that dismissal was conditioned on Chevron's explicit written assurances that it would accept jurisdiction in Ecuador, and would satisfy any judgment rendered by an Ecuadorian court. Nevertheless, when it seemed clear that Chevron would lose in Ecuador, the oil company immediately ran back to New York and sought an injunction staying the Ecuadorian judgment.
A good synopsis of the case’s convoluted history can be found here.

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