A certified English translation of the Lago Agrio Ecuador Appeals Court judgment, together with the original Spanish, was filed with the Second Circuit today and is available here.

As Kevin noted yesterday, on January 3, 2012 an Ecuador Appeals Court affirmed the $18 billion judgment against Chevron in the long-running battle over environmental damage. (Available in English and the original Spanish here). According to an unofficial English translation of the sixteen page opinion, the Court dismissed all of Chevron’s arguments, including the allegations of fraud. Here is a taste:

As for the invalidity of the trial “for procedural fraud and violation of the guarantees of due process” it must be said that the record of the trial court reflects that the Defendants have exercised a vigorous and ample defense in the trial—the thousands of pages that bloat the trial have already been mentioned, in addition to this appeal and litigation; insinuating expert witnesses; requestioning and reexamining these same judicial auxiliaries, and to witnesses, visiting each and each one of the formalities given in the first trial. As such, the trial has been public and, from what can be seen, also transparent, with a horrifyingly uncommon temporal duration, and without a doubt, affecting the interests of those that drive the case, as since the action, more than eight years have passed in Ecuador alone; definitely putting into process the proof and the performances—all of them—requested by the parties in the investigative procedures….

Fraud and corruption were also mentioned, of officials, attorneys, and representatives, the issue of which this Court should not make any reference, only to leave emphasized that the same accusations can be found pending before authorities of the United States in the denouncement that has been presented the same here by the Defendant Chevron, under the RICO act, and the Court does not have competence to resolve the conduct of attorneys, expert witnesses, or other government employees or administrators and judicial auxiliaries, if that is the case….

The logical anticipated consequence, in the case of carrying out the request, was that it was impossible to rely on any expert, and resulted in not being able to have expert proof which paralyzed the trial; thus Chevron has acted up until the outer limits of its defense and the Court considers the particularly precarious situation which could doom the administration of justice should it be allowed during the controlling procedural moments and stages of the suit, making it depend on its decision in the advancing of the cases. The deeds made public considered in the judge’s decision at the first instance, and Chevron was condemned to pay trial costs for manifest bad faith, notorious and obvious; so much so that now suffice it to say that the procedural conduct of the defendant, few times seen in the annals of the administrator of Justice in Ecuador, were abusive to the point that, in terms of attitude, that the Court will not even dedicate any more writings to this portion of the decision, it would be an example of disastrous precedent for other litigants.

Following the judgment, plaintiffs’ attorney Pablo Fajardo indicated that Chevron is authorized to request clarifications of the appellate court decision within the next month or so. According to my conversation with plaintiffs’ representative Karen Hinton yesterday, if Chevron wishes to appeal to the Ecuador National Court in Quito, Chevron must post an appeal bond of approximately 10%, or $1.8 billion. Chevron itself contends that the appeal bond could be 100% of the judgment, forcing it “to deposit, with no likelihood of recoupment, billions into the very court system whose corruption and bias … render the Lago Agrio judgment unenforceable.“

Meanwhile Chevron has filed a motion with the Second Circuit this morning asking the Second Circuit to lift the temporary stay on the district court’s antisuit injunction. The Second Circuit’s principal concern that an antisuit injunction was not ripe has been obviated by the Ecuador Appeals Court judgment. “Without such relief, the [plaintiffs] will be able immediately to commence their extortionate plan to harass Chevron through multiplicative, vexatious enforcement proceedings expressly intended to disrupt the operations of Chevron’s affiliates in foreign countries.”

In its motion, Chevron argues that “The Ecuadorian appellate decision … does not purport to explain or even mention the extensive evidence that the Lago Agrio Judgment was ghostwritten by parties other than Judge Zambrano, who had secret access to the LAP’s internal, unfiled work product.” Among other things, Chevron argues that the Ecuadorian appellate judgment ignores (1) the extensive verbatim overlap between the judgment and the LAP’s unfiled “Fusion memo”; (2) the overlap between the judgment and the LAP’s unfiled record summary; (3) the LAP’s internal emails evidencing their plan to draft the judgment; and (4) expert linguistic testimony that the judgment was not written by Judge Zambrano.

Yesterday Chevron has also filed a motion with the UNCITRAL arbitration tribunal in The Hague requesting that panel to order Ecuador to inform the tribunal of the steps it intends to take to comply with the tribunal’s February 2011 order requiring Ecuador to prevent the Lago Agrio judgment from being enforced.

After almost two decades of litigation, the Chevron Ecuador judgment has reached the critical enforcement stage. The $18 billion question is whether the Second Circuit will stay enforcement of the Ecuador judgment, and if not, whether foreign courts will recognize and enforce the Ecuador judgment. Overshadowing it all is an investment arbitration that may require Ecuador to pay Chevron for any damages it has incurred from the enforcement of a judgment in violation of the Ecuador-United States bilateral investment treaty.

“He looked up again at the portrait of Big Brother. The colossus that bestrode the world! The rock against which the hordes of Asia dashed themselves in vain! … He was back in the Ministry of Love, with everything forgiven, his soul white as snow…. He gazed up at the enormous face…. O cruel, needless misunderstanding. O stubborn, self-willed exile from the loving breast! Two gin-scented tears trickled down the sides of his nose. But it was all right, everything was all right, the struggle was finished. He had won the victory over himself. He loved Big Brother.”

~ 1984

Foreign Policy has just published its rankings of the top 100 Global Thinkers for 2011. As expected, there were the typical assortment of statesmen, economists and activists. But what really stood out was the continued dominance of old media in the shaping of foreign policy. We may be prone to think of 2011 as the year of new media thinkers, with social media outlets giving voice to protesters that toppled dictators and transformed regions.

But for every two new media global thinkers recognized by Foreign Policy, there were three global thinkers recognized for their work in old media: television, books, and journals. By my count, there were 32 FP global thinkers recognized for utilizing traditional television, books, or journals to communicate their message, while there were 21 FP global thinkers who were recognized for using Facebook, YouTube, Twitter, and blogging to spread their message. (Of course, I recognize that many of these public intellectuals use a variety of media to communicate their message; these categories are based on Foreign Policy’s description of their influence).

Here are the two lists:

That’s the question that a Ninth Circuit en banc panel heard yesterday in Movesian v. Versicherung AG. There is no statute, treaty or executive order refusing to recognize the Armenian Genocide, but there have been equivocal statements by various Presidents on the subject and failed attempts to adopt congressional resolutions recognizing the Armenian genocide. Is that enough to constitute a federal policy that would preempt a California statute (CCP 354.4), which provides in relevant part:

Notwithstanding any other provision of law, any Armenian Genocide victim, or heir or beneficiary of an Armenian Genocide victim, who resides in this state and has a claim arising out of an insurance policy or policies purchased or in effect in Europe or Asia between 1875 and 1923 from an insurer described in paragraph (2) of subdivision (a), may bring a legal action or may continue a pending legal action to recover on that claim in any court of competent jurisdiction in this state, which court shall be deemed the proper forum for that action until its completion or resolution.

In December 2010, a Ninth Circuit panel concluded that there was no federal policy that preempted the California statute.

The Ninth Circuit en banc oral argument yesterday is a great case to watch for anyone interested in preemption. My friend and former colleague Lee Boyd argued on behalf of Appellees, who are heirs of Armenian genocide victims seeking to collect on the insurance policies.

Nobel Peace Prize Laureates Ellen Johnson Sirleaf, Leymah Gbowee, and Tawakkol Karman delivered their Nobel Lectures today in Oslo.

It was a great day of celebration for the cause of gender equality and democracy. You should read all three lectures in their entirety to give you the full picture of what transpired. The common theme was the power of women to transform the world in the face of injustice and oppression.

The two Liberian Laureates spoke triumphantly of their victory against injustice in Liberia, while the Yemeni Laureate–the youngest Nobel Peace Laureate in history–spoke confidently of a new emerging Arab spring.

After watching the festivities live, I am confident that all three women will do great honor to the Nobel Peace Prize.

Here’s a few choice excerpts from the Nobel Lectures:

Tawakkol Karman:

Peace within one country is no less important than peace between countries. War is not just a conflict between states. There is another type of war, which is far more bitter, that is the war of despotic leaders who oppress their own people. It is a war of those to whom people have entrusted their lives and destinies, but who have betrayed that trust. It is a war of those to whom people have entrusted their security, but who directed their weapons against their own people. It is the war which today people face in the Arab States.

At this moment, as I speak to you here, young Arab people, both women and men, march in peaceful demonstrations demanding freedom and dignity from their rulers. They go forward on this noble path armed not with weapons, but with faith in their right to freedom and dignity. They march in a dramatic scene which embodies the most beautiful of the human spirit of sacrifice and the aspiration to freedom and life, against the ugliest forms of selfishness, injustice and the desire to hold on to power and wealth.

Peace does not mean just to stop wars, but also to stop oppression and injustice. In our Arab region, there are brutal wars between governments and peoples. Human conscience cannot be at peace while it sees these young Arab people, who are in the age of blossoming, being harvested by the machine of death which is unleashed against them by the tyrants. … [O]ur oppressed people have revolted declaring the emergence of a new dawn, in which the sovereignty of the people, and their invincible will, will prevail. The people have decided to break free and walk in the footsteps of civilized free people of the world.

Ellen Johnson Sirleaf:

There is no doubt that the madness that wrought untold destruction in recent years in the Democratic Republic of Congo, in Rwanda, in Sierra Leone, in Sudan, in Somalia, in the former Yugoslavia, and in my own Liberia, found its expression in unprecedented levels of cruelty directed against women.

Although international tribunals have correctly declared that rape, used as a weapon of war, is a crime against humanity, rapes in times of lawlessness continue unabated. The number of our sisters and daughters of all ages brutally defiled over the past two decades staggers the imagination, and the number of lives devastated by such evil defies comprehension.

Through the mutilation of our bodies and the destruction of our ambitions, women and girls have disproportionately paid the price of domestic and international armed conflict. We have paid in the currencies of blood, of tears, and of dignity….

Yet, there is occasion for optimism and hope. There are good signs of progress and change. Around the world, slowly, international law and an awareness of human rights are illuminating dark corners, in schools, in courts, in the marketplace. The windows of closed chambers where men and women have been unspeakably abused are being opened, and the light is coming in. Democracies, even if tentatively, are taking root in lands unaccustomed to freedom.

Leymah Gbowee:

This prize … has come at a time when in many societies where women used to be the silent victims and objects of men’s powers, women are throwing down the walls of repressive traditions with the invincible power of non-violence. Women are using their broken bodies from hunger, poverty, desperation and destitution to stare down the barrel of the gun. This prize has come at a time when ordinary mothers are no longer begging for peace, but demanding peace, justice, equality and inclusion in political decision-making.

I must be quick to add that this prize is not just in recognition of the triumph of women. It is a triumph of humanity. To recognize and honor women, the other half of humanity, is to achieve universal wholeness and balance… “Rape and abuse is the result of larger problem, and that problem is the absence of women in the decision making space.” If women were part of decision-making in most societies, there would be less exclusive policies and laws that are blind to abuses women endure….

We must continue to unite in sisterhood to turn our tears into triumph, our despair into determination and our fear into fortitude. There is no time to rest until our world achieves wholeness and balance, where all men and women are considered equal and free.

My colleague Greg McNeal has just posted on SSRN an article on collateral damage and targeted killing. It is getting rave reviews, with Ben Wittes calling it an “extraordinary article” that “should be required reading for anyone participating in the many debates surrounding targeted killing” and our own Ken Anderson calling it “essential reading … in the law of armed conflict.”

Here is McNeal’s own description of what he is trying to achieve with the empirical piece:

Irrespective of your opinion about the merits of targeted killing, I’m hopeful my paper provides the foundation necessary for scholars and commentators to build upon, and I hope it serves as a helpful corrective to the descriptions of state practice currently circulating in public commentary.

We have certain images in our minds about that first Thanksgiving. It usually involves bountiful harvests, amicable relations with the Indians, and prayerful thanksgiving to Providence for his manifold blessings.

Well, it wasn’t quite that simple. Although there are various versions of the “first Thanksgiving,” one event that has a strong claim to it occurred at Plymouth, Massachusetts in the fall of 1621. Unlike subsequent harvest celebrations (particularly the other “first Thanksgiving” in the summer of 1623), this “first Thanksgiving” had as much to do with a display of force to the Indians as it did grateful hearts to God. Those new immigrants were thankful to God and fearful of neighbor. So what better way to address both concerns than a celebratory display of feasting and saber rattling.

Here is how historian Diana Karter Appelbaum describes it in her book Thanksgiving: An American Holiday, An American History:

Landing at Plymouth in December 1620, the Pilgrims faced winter without an adequate food supply, sheltered from the elements only by such dwellings as they could build quickly. Unseen, dreaded Indians lurked in the woods, their intentions unknown. Faith and prayer sustianed the pious settlers–their first act upon setting foot on dry land was to kneel and pray. Records of the settlement are punctuated by notations of recurrent occasions when “solemne thanks and praise” were offered.

Only 55 of the 102 immigrants lived through that first winter, but when spring came, all 55 committed themselves to life in the New World and resolutely watched the Mayflower sail back to England without passengers. Tisquantum, an Indian of the Wampanoag tribe who had once been carried off by fishermen to England, where he learned to speak the settlers’ tongue, befriended the colonists. They called him Squanto, and under his direction the colonists learned how to plant New World crops of corn and squahs, where to catch fish and how to hunt. Squanto also served as negotiator and interpreter, helping to conclude a treaty that kept the peace for 50 years between the Pilgrims and the Wampanoag sachem, Massasoit.

The first autumn, an ample harvest insured that the colony would have food for the winter months. Governor Bradford, with one eye on the divine Providence, proclaimed a day of thanksgiving to God, and with the other eye on the local political situation, extended an invitation to neighboring Indians to share in the harvest feast. In order to guarantee that the feast served to cement a peaceful relationship, the three-day long meal was punctuated by displays of the power of English muskets for the benefit of suitably impressed Indian guests.

This “first Thanksgiving” was a feast called to suit the needs of the hour, which were to celebrate the harvest, thank the Lord for His goodness, and regale and impress the Indians. We have Edward Winslow’s testimony that the feast was a success:

Our harvest being gotten in, our Governour sent foure men fowling, so that we might after a more special manner rejoyce together, after we had gathered the fruit of our labours; they foure in one day killed as much fowle, as with a little helpe beside, served the Company almost a weeke, at which time among other Recreations we exercised our Armes, many of the Indians coming amongst us, and amongst the rest their greatest King Massasoyt, with some ninetie men, whom for three days we entertained and feasted, and they went out and killed five Deere which they brought to the Plantacion and bestowed on our Governour, and upon the Captaine, and others.

… They worked with the resources at hand, and although they successfully fed the hungry men, the feast bore little resemblance to the modern Thanksgiving dinner. Partridges, ducks, geese, and turkeys could be shot along the shores of Cape Cod Bay in the fall, and it may be that those who went a-fowling brought back some of each to be roasted or stewed. Although there is no proof that turkey was eaten at Plymouth that day, it is certain that there was venison and equally certain that some items were missing. There was no apple cider, no milk, butter or cheese (no cows had been aboard the Mayflower), and no bread–stores of flour from the ship had long since been exhausted and years would pass before significant quantitaties of wheat were successfully cultivated in New England.

What they did have were pumpkins and corn; these grew abundantly, and colonists ate them until they were cordially tired of both. With no flour and no molasses, there was no pumpkin pie, but there was plain, boiled pumpkin to eat. Corn was more versatile. It was boiled as “hasty pudding,” kneaded into ersatz bread and fried in cakes. Cranberries may have been boiled for a honey to sweeten the sour, red berries. Nine little girls and 15 boys were in the company, and they, or some of the hunters, may have gathered other wild fruits or nuts. Oysters, clams and fish rounded out the abundant, but far from epicurean, feast that the celebrators would have been more likely to call a “harvest home” than a “thanksgiving” celebration.

Thanksgivings were holy days of solemn prayer in the Puritan lexicon, days akin to sabbaths and fast days on which “Recreations” and “exercising Armes” would not have been countenanced. Had the governor proclaimed a day of thanksgiving to Almighty God, Edward Winslow, one of the Pilgrim Fathers, would have written about the religious services the settlers held. Thus this feast was more harvest celebration than prayerful day of thanksgiving.

Hope you have a wonderful day of thanksgiving, fowling, and recreation. Presumably you will have no need to exercise arms to suitably impress the neighbors.

(Republished from previous post)

Again and again, my fellow citizens, mothers who lost their sons in France have come to me and, taking my hand, have shed tears upon it not only, but they have added, “God bless you, Mr. President!” Why, my fellow citizens, should they pray God to bless me?

I advised the Congress of the United States to create the situation that led to the death of their sons. I ordered their sons overseas. I consented to their sons being put in the most difficult parts of the battle line, where death was certain, as in the impenetrable difficulties of the forest of Argonne.

Why should they weep upon my hand and call down the blessings of God upon me? Because they believe that their boys died for something that vastly transcends any of the immediate and palpable objects of the war. They believe and they rightly believe, that their sons saved the liberty of the world.

They believe that wrapped up with the liberty of the world is the continuous protection of that liberty by the concerted powers of all civilized people. They believe that this sacrifice was made in order that other sons should not be called upon for a similar gift–the gift of life, the gift of all that died.

Woodrow Wilson, Pueblo Speech of September 25, 1919

That was the candid assessment of outgoing ICC Prosecutor Luis Moreno-Ocampo at the recent ASIL Midyear meeting held at UCLA this past weekend. In a free-flowing and unusually frank discussion of the International Criminal Court to a packed assembly, Moreno-Ocampo admitted that there is “one standard for 119 member states, and another standard for every other country.” He welcomed the enhanced role of the Security Council in referring cases to the ICC, something that he said was unthinkable in 2003. But he openly admitted that the Security Council exercised political discretion in picking and choosing which countries to refer to ICC prosecution. Why did the Security Council refer the situation in Libya to the ICC, but not the situation in Syria? The only distinction, he suggested, was the geopolitical position of the two countries. The ICC is becoming the vehicle for the Security Council to punish countries that are politically unpalatable.

If this is the case, should that impact the way the ICC prosecutor handles the matter? “No,” he said. Once the matter was referred to the ICC, Moreno-Ocampo was quick to disabuse any suggestion that the prosecutor exercised its discretion in a political fashion. When someone in the audience intimated that the pace of the Libyan prosecutions was politically motivated, the prosecutor denied it, saying that “he is criticized if he goes too slow and criticized if he goes too fast.” The only reason that the Libyan investigation and arrest warrants were so expeditious was due to the assistance from numerous sources both inside and outside of Libya.

When asked about the circumstances of Muammar Gaddafi’s death and whether the ICC would investigate crimes perpetrated by rebel forces, Moreno-Ocampo admitted that Gaddafi’s death was not “clean”, but said that, consistent with complementarity, the ICC must let the national court proceedings complete their work before the ICC considers taking any action.

As for the choice of which prosecutions to initiate against ICC member states, Moreno-Ocampo stated in an earlier lunch Q&A that the gravity of the offense was the deciding factor. “We look at how many hundreds were killed or raped, and prioritize investigations on that basis.”

The keynote address by Moreno-Ocampo was the highlight of what otherwise was a stellar performance by panelists at the ASIL midyear meeting. Now in its second year, the midyear meeting is fast becoming an important venue for the presentation of international law scholarship. The notable feature of this meeting as compared to the annual meeting is the heavy focus on the discussion of working papers, a sharp contrast from the traditional short presentation from a group of panelists. Just check out this feast of papers presented.

Today is an historic day in world population statistics, marking the day that planet reaches seven billion inhabitants. What is amazing is, despite the phenomenal growth in population, the citizens of the world are becoming healthier and wealthier every year. Gapminder has an incredibly interesting timeline that shows the progression of life expectancy (y axis) and income per person (x axis) from 1800 to the present. Push the play button and watch the world’s inhabitants grow healthier and wealthier than ever before in the history of the world.

Donald “Trey” Childress has the scoop:

Today, the United States Court of Appeals for the Ninth Circuit issued a mammoth en banc opinion in the case of Sarei v. Rio Tinto. All 166 pages of the court’s splintered analysis deserves careful consideration. Here is a short review of the court’s conclusions.

First, the Ninth Circuit holds that the Alien Tort Statute may be applied extraterritorially notwithstanding recent Supreme Court caselaw requiring a clear statement of extratteritorial intent. Slip op. at 19337-19339.

Second, the Ninth Circuit holds that there can be corporate liability under the ATS. Slip op. at 19341.

Third, the Ninth Circuit holds that there may be aiding and abetting liability under the ATS. Slip op. at 19342.

Fourth, the Ninth Circuit holds that there is arising under jurisdiction in ATS cases and that courts may develop federal common law in such cases. Slip op. at 19343; id. 19347.

Fifth, the Ninth Circuit holds that prudential exhaustion may be required in ATS cases and that the district court did not abuse its dicretion in refusing to dismiss the case for lack of exhaustion. Slip op. at 19353.

Sixth, the Ninth Circuit holds on the facts of the case that the political question doctrine, international comity, and the act of state doctrine do not require dismissal. Slip op. at 19358.

Seventh, the Ninth Circuit holds that a claim for genocide and war crimes may be pled under the ATS against a corporation when there is purposeful conduct alleged. Slip op. at 19375. The court reserves judgment on whether a lesser standard is applicable given the purposeful allegations in this case. Id.

Eighth, the Ninth Circuit holds that a claim of racial discrimination is not cognizable under the ATS, although a claim of apartheid is cognizable by assumption. Slip op. at 19380.

Read the whole post here.