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Chevron Update/Profile in Washington Post

by Kenneth Anderson

We haven’t blogged recently here about the Chevron Ecuador case, but over the weekend the Washington Post carried a long analysis and profile by Business section reporter Steven Mufson on the state of play – focused particularly on a Washington insider part of the saga, the involvement of DC lobbying-law firm powerhouse, Patton Boggs.  Patton Boggs has been an adviser to the Ecuadorian plaintiffs since 2010; it is now being sued by Chevron, the defendant, on fraud charges. Mufson’s story is about the colorful characters, including the lawyers involved – but it is also about the business of financing lawsuits:

When Patton Boggs signed onto the Ecuador case in early 2010 at the suggestion of a hedge fund looking into financing the litigation, it wrote a memorandum titled “Invictus” — borrowing the title of a 19th-century poem that culminates with the famous lines “I am the master of my fate/I am the captain of my soul.” In it, Patton Boggs outlined a strategy to pursue international Chevron assets to enforce the $18.2 billion judgment, “with the ultimate goal of effecting a swift and favorable settlement.” But this case wasn’t like other sticky problems that Patton Boggs had solved by striking deals. “Tommy thought he and Chevron’s counsel could sit down and work this out,” a prominent Washington lawyer, who spoke on the condition of anonymity to protect his business relationships, said about firm titan Thomas Boggs.

It has not worked out that way – Chevron, as OJ readers know, has dug in and will not cut some kind of deal.  (Regular readers also know, full disclosure, that I think Chevron is right on the merits, but that’s not my interest here.)  Mufson is an outstanding business reporter, and this account is utterly fascinating – Chevron, Ecuador, rainforests, oil, all that aside – for its account of the business of financing lawsuits in US courts in return for a contingency fee – a share of the outcome of any gains.  That’s the reason for the reference to the hedge fund at the beginning; some hedge funds are deeply involved in this (rapidly evolving) business model:

How Patton Boggs ended up here is a tale of how the old boy network works in the elite legal world. And it involves an unusual niche — hedge funds that invest in complex litigation in the hope of sharing a big payday. In November 2009, a New York firm seeking financing for the Ecuadoran plaintiffs contacted Burford Capital, run by Christopher Bogart, a former general counsel of Time Warner and litigator at the white shoe firm of Cravath, Swaine & Moore. Burford is the world’s biggest institutional source of litigation financing, with a $300 million fund. Burford’s partners met Donziger, the plaintiffs’ dogged U.S. lawyer who needed fresh backing. Before investing, however, Burford wanted a “highly regarded U.S. litigation counsel” involved, according to a Bogart court filing. James E. Tyrrell Jr., a partner at the Newark office of Patton Boggs and a member of the firm’s executive committee, was the obvious choice ….

By early 2010, Patton Boggs was in. And that fall, Burford invested $4 million in the case, with plans for two further tranches of $5.5 million each. In return, it would get 5.545 percent of the settlement amount. Even if the settlement fell short of the billions expected, Burford would receive a minimum of $55.5 million, a handsome return on its investment. Bogart in his affidavit cited “our substantial confidence in Jim Tyrrell” and “our special relationship with and respect for Jim and Patton Boggs.”

A little more than a year later, the relationship had gone sour – in essence, Burford believed that it had been materially misled in representations made to it in exchange for funding.  However, the letter making that accusation was addressed to the plaintiffs’ lawyer, Steven Donziger and the Ecuadorian plaintiffs, not Patton Boggs, which had originally drafted the perhaps imprudently titled “Invictus” internal memo that analyzed the business opportunity presented by the litigation.

On Sept. 29, 2011, Burford sent Donziger and the Ecuadoran lawyers a letter complaining about omissions in the Invictus memo, though it did not address the letter to Patton Boggs. “We believe that you and particularly your U.S. representatives engaged in a multi-month scheme to deceive and defraud in order to secure desperately needed funding,” the letter said, “all the while concealing material information and misrepresenting critical facts in the fear that we would have walked away had we known the true state of affairs.”

The heart of Burford’s complaint was the Cabrera expert witness report on damages allegedly caused by Chevron (i.e., then-Texaco’s) operations in Ecuador; again, regular readers will recall (and those new to this can read an excellent summary in Mufson’s article) the controversies that have swirled around Cabrera’s report, the claims of improper influence and communications, etc.:

The gravity of the doubts surrounding the Cabrera report had not found its way into the 2010 Patton Boggs Invictus memo. There, Patton Boggs had dismissed Chevron’s “bluster” and “singular fixation” on the report. It said that Chevron had declined opportunities to provide Cabrera with information of its own. “The damage is plain to see,” the memo said, adding that Chevron “cannot undermine the soundness of plaintiffs’ science.” But as new details [casting doubt on the Cabrera memo] emerged, Burford’s partners grew upset and believed Tyrrell had deceived them. In his recent affidavit, Bogart attached notes of a January 2011 telephone conversation with Tyrrell, who said that Donziger “was a fool” and that Patton Boggs was “evaluating what to do.” But Tyrrell added, according to the notes, that it was “difficult to believe that no award of significant damages” would come about. Meanwhile Burford has sold its stake to still another private investor group, recouping its $4 million investment.

I’m not doing justice to Mufson’s account of the new twists and turns in the case.  But what I find most fascinating here is the intertwining of the rapidly growing business of speculative litigation financing, through essentially sale and resale of bits of the contingency fee, with a case with extraordinary political facts combined with an extraordinary amount of money at issue.

Question to readers: Are there other places in the world that allow this kind of third party financing of lawsuits?  I think of it as a peculiarly American practice, though I’m not expert in this area and might be quite wrong.  Added:  See my post (several) above re Julian op ed on this in the WSJ; also, a couple of informative comments to this post on the apparently burgeoning business of litigation finance in several places in the world.  Some good written materials, too – see comments and thanks to commenters.

Obama Thinks We’re All Rubes

by Kevin Jon Heller

There is a classic jury instruction that reads, “[a] witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” I immediately thought of that instruction when I read Obama’s national-security speech today, because it contains such a blatant lie that it is impossible to take anything else that Obama said seriously:

And before any strike is taken, there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.

The United States, of course, has used drones to attack wedding parties. And funerals. And rescuers. And densely populated villages. Yet Obama has the temerity to claim that the US does not launch attacks unless there is “near certainty” that no civilians will be harmed. Has there been a bigger — and more obvious — lie since John Brennan’s risible claim in 2011 that drone strikes had not caused “a single collateral death”?

What is most perverse about Obama’s purported requirement is that, from a legal standpoint, it is completely unnecessary. International humanitarian law does not demand perfection; it demands proportionality. Innocent civilians die in legitimate military attacks. They always have, and they always will — no matter how “precise” weapons like drones become. Every military commander in every country in the world accepts that basic fact of warfare. But not Obama, winner of the Nobel Peace Prize. He cannot bring himself to acknowledge that the US is — like every other country — willing to launch attacks that are likely to kill innocent civilians when it believes the targets are important enough. He would rather pretend, in public and seemingly without shame, that the US is more virtuous and has cleaner hands than everyone else, friend and foe alike. Never mind that if the US took his targeting standard seriously, its drone fleet would be gathering dust in a hangar somewhere.

Obama gives a good speech. But, as the jury instruction goes, “[a] witness who is willfully false in one material part of his or her testimony is to be distrusted in others.” I think it is safe to say that we should be deeply distrustful of all the claims Obama made in his speech today, not just the wilfully false one. We simply cannot count on him to tell us the truth about the US’s national-security policy.

Should We Care that the Convention on the Rights of Persons with Disabilities is Coming Back to the U.S. Senate?

by Julian Ku

Last December, the U.S. Senate failed to give consent to U.S. ratification of the Convention on the Rights of Persons with Disabilities (CRPD).  Since the election hasn’t really changed the composition of the Senate all that much, I kind of thought this treaty was dead, or at least dormant, for a while here in the U.S.  Maybe not!

Groups opposed to US ratification of the CRPD are saying that the Senate Foreign Relations Committee will hold hearings on June 4 to discuss ratification of the treaty.  And the critics are ready. In the latest critique, Iain Murray and Geoffrey McClatchey argue that the CRPD really does go beyond what U.S. law requires under the American with Disabilities Act by suggesting all entities must give all individuals accommodations, whereas the ADA has a number of important exemptions.  I am not sure about this, and it seems like a fairly technical matter that could be interpreted narrowly or broadly. Since the CRPD would be non-self-executing, I am not sure this would be a huge problem for Congress, which could easily say that the ADA is enough to comply with the CRPD.

More problematically, the senators who offered their opposition last summer in the SFRC committee hearings are deeply troubled by the refusal of the Obama Administration to clarify that the language requiring equal treatment in the provision of “health care” for “sexual and reproductive health” in the CRPD’s Article 25 does not include abortion services. Again, I think the practical impact is fairly small, but I don’t fault senators who are pledged to oppose expansion of abortion services to be worried about this.  Senator Marco Rubio’s proposed “declaration” to attach to advice and consent would seem to solve this.

The United States understands that the phrase “sexual and reproductive health” in Article 25(a) of the Convention does not include abortion, and its use in that Article does not create any abortion rights, cannot be interpreted to constitute support, endorsement, or promotion of abortion, and in no way suggests that abortion should be promoted as a method of family planning.

I don’t see this is a big deal, but if it would remove one obstacle to ratification and get the necessary votes, I don’t see why CRPD proponents wouldn’t just agree to take this language on.

Overall, I do think critics of the CRPD are overstating the likelihood that the treaty will have a meaningful impact on U.S. law and policy.  There could be an impact, but the institutional protection is that any changes required by the CRPD will have to clear Congress in the form of another statute. This is a non-trivial institutional protection.  Sure, the Disabilities Committee will probably crank out some interpretations of the CRPD that the U.S. Congress will disagree with, but the chances of those interpretations seriously affecting U.S. law seem fairly small.

On the flip side, I also think the proponents of the CRPD are exaggerating its benefits.  It may have some small impact on the practice of foreign countries, but there is little evidence it would lead to wholesale changes in other countries either.

As I have argued before, the potential problems in this treaty are just not serious enough for me to get worked up about it.  On the other hand, the benefits are not exactly large enough to get excited about either. Still, the upcoming battle for the CRPD is a proxy for the entire U.S. attitude toward the various U.N. human rights treaties. So it matters, even if this particular treaty is not a big deal.

US Congressional Bill to Be Introduced for New Kill-Capture Oversight

by Kenneth Anderson

Rep. Mac Thornberry (R-Texas), member of the US House of Representatives Armed Services Committee, plans to introduce a bill that would increase Congressional oversight over kill-capture operations conducted outside of Afghanistan by the US military.  Bobby Chesney discusses the proposed legislation over at Lawfare, and gives a section by section commentary.  Whether this is an important step or not depends on one’s starting point, of course; I agree with Bobby that it is a big deal and a welcome step – though if one’s view is that all these operations are unlawful, or that  they require judicial oversight, or something else, then you won’t be much moved.

Seen within the framework of US law and oversight of overseas use of force operations, however, this is an important step.  A couple of observations; see Bobby’s post for a detailed discussion.  First, this legislation is with respect to operations conducted by the US military; it does not cover CIA activities.  Second, it covers US military operations with respect to the lines of oversight running back to the Armed Services committees; it does not alter existing oversight processes of Congressional intelligence committees governing covert action as defined in US Code Title 50, but extends and increases oversight over military operations.  These limitations run to several different things.

Counterintuitive as many might find it, the CIA is subject to far greater oversight, and at a far higher level of government, in its conduct of Title 50 covert activities than the US military is in its conduct of armed operations under Title 10.  There are good reasons why the military is not subject to direct oversight in essentially tactical decision-making in its traditional military activities once a decision has been made to commit to the use of force.  These decisions have long been understood to be within the discretion and responsibility of commanders who have the expertise to carry them out.  Oversight through the Armed Services committees is robust, including its closed sessions, but is not considered the same as that which Title 50 requires for covert activities.  However, the expansion of the US military into clandestine activities – which might or might not meet the legal definition of “covert” under Title 50 and so trigger those oversight functions – has raised new questions as to whether Armed Services committees oversight, traditionally conceived for conventional conflicts, keeps Congress sufficiently informed and permits sufficiently timely oversight in the case of activities carried by JSOC. (more…)

International Law, Law of the Hegemon, the ATS, and Kiobel

by Kenneth Anderson

Peter beat me to the punch in commenting on Samuel Moyn’s interesting take on the ATS and Kiobel in Foreign Affairs, but I’m going to add a somewhat different point from Peter’s about what the body of ATS law has meant over the past few decades. I didn’t intervene in the earlier discussion about Kiobel because that discussion seemed to me properly focused mostly on the internal legal aspects of the decision – everything from jurisdiction to state courts, and much else besides.  I want to raise something external to Kiobel and the ATS as “law” – the distinction between international law and what (in various postings here and there) I’ve referred to as the “law of the hegemon.”

One way of looking at the ATS, including the body of cases built up over the years, is that it is “international law.”  Of course that’s not literally true; it is a domestic statute that refers to international law as the basis of some form of liability; violations of treaties or the law of nations.  But in a broader sense – the sense in which its supporters have long seen it – the ATS offers a domestic law vehicle by which to work out, interpret, express and, perhaps most important, make effective the requirements of international law.

This is surely the sense that, for example, Judge Jack Weinstein had when he opened the ATS hearing in the Agent Orange case ten years ago – this court sits, he said, in some fashion as an international court.  Sitting in the courtroom, it was entirely plain that he both took seriously and took real pleasure in seeing this District Court as sitting in judgment on the same types of crimes as raised at Nuremberg. There are several practical problems for this broader view, of course – how to figure out the relationship between the domestic law piece of the statute and the international law piece, for one.

Another, however, is that if this is supposed to be the working out in some broad sense of “international law” in American courts and using the tools available to American law, how does one keep the link between international law and its sources, processes, standards of interpretation, etc., as they exist in the international arena – and the application of this in an American law setting that has its own sources of authority, standards of interpretation, etc.  It’s fine to say that the ATS is the working out of international law in US courts, but international law is made in the international framework and evolves according to things that are different from and quite alien to the American legal system.  A telling example of the problem is found simply in the status of US court cases interpreting the ATS and, in the process, interpreting features of international law in ways that bear little relationship to how the international community might do it, now or in the future.  Yet in an American domestic law system, those distinctively US cases have greater authority than the international authorities.

One can say that this is precisely the problem of the American court system in dealing with human rights cases; it ought to recognize the international law sources and authorities as such, rather than privileging its own processes.  But this is hard, given that plaintiffs want simultaneously to reach to the special features of the US litigation system to achieve their aims; those special features of the US litigation system include many things, such as civil liability, corporate liability, etc., that don’t obviously exist in the international system.  It isn’t likely that one can pick and choose in the most favorable way – whether one is the plaintiff or the defendant – and if you go with the American system, you take its doctrine of sources, methods of interpretation, and much else besides, even as it applies to international law questions.  But those don’t match up very well with how the “international” actors in international law see those fundamental questions.  The questions are not substantive or procedural in the usual sense – they are, rather, the fundamental doctrines of authority, precedent, methods of interpretation.

A better way of seeing the law of the ATS, it has long seemed to me, is to treat it not as a particular state’s working out of international law in its courts, but rather a quite different category.  It seems to me best understood as the hegemonic power working out the law of the hegemon in ways that are intended to be somewhat parallel to “international law” on these issues.  There is a shared impulse rooted in morality, but what the hegemon does is within the terms of its own legal system.  It depends in large part upon the extent to which the hegemonic power is willing to allow the capital of its power to be exercised roughly to these ends – and the extent to which other important actors are willing to go along as a sort of rough way of getting international law actually enforced. (more…)

Ontario Court Dismisses Ecuadorian Enforcement Action Against Chevron

by Roger Alford

An Ontario court in Yaiguaje v. Chevron has dismissed the Ecuadorian plaintiffs’ efforts to enforce the Ecuadorian judgment against Chevron Canada. Essentially the dismissal rests on the doctrine of the separate legal identities of parent and subsidiary corporations.

Chevron has no assets in Canada, and the subsidiaries’ assets there cannot be attached to enforce a judgment against the parent company. This is not a particularly controversial proposition. Therefore the fight over the recognition and enforcement of the dubious $19 billion Ecuadorian judgment should be resolved elsewhere.

Here’s the key language (paras. 110-111):

By way of summary, Chevron does not possess any assets in this jurisdiction at this time. The evidence also disclosed that no realistic prospect exists that Chevron will bring any assets into this jurisdiction in the foreseeable future…. The plaintiffs’ contention that the assets of Chevron Canada ‘are’ the assets of Chevron has no basis in law or fact…. Accordingly, any recognition of the Ecuadorian Judgment by this Court would have no practical effect whatsoever in light of the absence of exigible assets of the judgment debtor in this jurisdiction.

…. Chevron is on record saying: ‘We will fight until hell freezes over and then fight it out on the ice.’ While Ontario enjoys a bountiful supply of ice for part of each year, Ontario is not the place for that fight. Far from it…. The evidence disclosed that there is nothing in Ontario to fight over…. In my view, the parties should take their fight elsewhere to some jurisdiction where ultimate recognition of the Ecuadorian judgment will have a practical effect.

Chevron’s press release responding to the ruling is here. The Ecuadorian plaintiffs’ press release is here.

New Book on Terrorism and the Right to Travel

by Kevin Jon Heller

9780472118588I want to take a moment to spruik (if you don’t know the word, look it up!) Jeffrey Kahn‘s new book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists, which has just been published by the University of Michigan Press. Here is the publisher’s description:

Today, when a single person can turn an airplane into a guided missile, no one objects to rigorous security before flying. But can the state simply declare some people too dangerous to travel, ever and anywhere? Does the Constitution protect a fundamental right to travel? Should the mode of travel (car, plane, or boat) or itinerary (domestic or international) make a constitutional difference? This book explores the legal and policy questions raised by government travel restrictions, from passports and rubber stamps to computerized terrorist watchlists.

In tracing the history and scope of U.S. travel regulations, Jeffrey Kahn begins with the fascinating story of Mrs. Ruth Shipley, a federal employee who almost single-handedly controlled access to passports during the Cold War. Kahn questions how far national security policies should go and whether the government should be able to declare some individuals simply too dangerous to travel. An expert on constitutional law, Kahn argues that U.S. citizens’ freedom to leave the country and return is a fundamental right, protected by the Constitution.

As an American who lives abroad but likes to see his family, I will avoid casting aspersions on terrorist watchlists. I’ll leave that to Jeff. Make sure to check out his book!

Breaking: US Supreme Court Affirms Second Circuit Dismissal of ATS Suit in Kiobel v. Royal Dutch Petroleum Co.

by Kenneth Anderson

The US Supreme Court released its long-awaited Kiobel decision this morning, affirming the Second Circuit’s dismissal of the plaintiffs Alien Tort Statute claims.  Chief Justice Roberts wrote the opinion, joined by Justices Scalia, Alito, Thomas, and Kennedy.  Justice Kennedy wrote a separate concurrence; Justice Alito did likewise, joined by Justice Thomas. Justice Breyer concurred in the judgment, joined by Justices Ginsburg, Sotomayor, and Kagan.  I’m posting this primarily in order to supply the link to the opinion asap, so I’ll refrain from commenting on it for now.  The SCOTUS opinion in Kiobel v. Royal Dutch Petroleum Co. can be found here.

Hey, NRA! Hold Your Fire on the Arms Trade Treaty

by Julian Ku

The U.N. General Assembly has voted in favor of the Arms Trade Treaty, which would do what exactly?  Its proponents say it will create an international mechanism to regulate the international sale of arms and other weapons.  Its critics say it will infringe on the individual rights of citizens and nations to buy and possess weapons by requiring member states to keep national registries of end users.

I am probably more sympathetic to gun rights and the U.S. Constitution’s Second Amendment than most of my fellow co-bloggers, but my general take is that the National Rifle Association should not bother fighting this treaty. Earlier versions of this treaty could have given extra legal and political power to Congress for creating a more aggressive national gun and ammunition registry, but the final text is pretty weak on this point. It requires records of exports, but it only “encourages” records of imports.  For instance,

Article 12 Record keeping
1. Each State Party shall maintain national records, pursuant to its national laws and regulations, of its issuance of export authorizations or its actual exports of the conventional arms covered under Article 2 (1).
2. Each State Party is encouraged to maintain records of conventional arms covered under Article 2 (1) that are transferred to its territory as the final destination or that are authorized to transit or trans-ship territory under its jurisdiction.
3. Each State Party is encouraged to include in those records: the quantity, value, model/type, authorized international transfers of conventional arms covered under Article 2 (1), conventional arms actually transferred, details of exporting State(s), importing State(s), transit and trans-shipment State(s), and end users, as appropriate.
4. Records shall be kept for a minimum of ten years.

(Emphasis added).  A similar approach is followed in Article 3 (exports of ammunition) and Article 4 (exports of gun parts).  There is also no mandatory dispute settlement system, and a weak Secretariat with no enforcement or oversight powers.  With all due respect to Ted Bromund over at Heritage, I am not as worried about the philosophical issues he raises in this critique.

The bottom line is that as a practical matter, I don’t think this treaty can be used to regulate domestic use of firearms, or even the domestic registry of firearms.  In fact, I have doubts that this treaty will do much of anything for anyone given how weak its provisions are.  I have never heard the NRA worry about regulation of gun exports, and in any event, I am sure their members care little about that.

I would hope that the NRA will hold its fire on this treaty, and save its political credibility for laws that really would constrain the right of self-defense and the right to bear arms.  We’ll see.

The Lord Works in Mysterious Ways – KJH and OLC Edition?

by Kenneth Anderson

Was our very own Kevin Jon Heller, and one of his OJ posts, responsible for causing David Barron and Marty Lederman (widely taken as authors of the Justice Department’s OLC opinion on the lawfulness of targeting Anwar Al-Awlaki with lethal force) to rewrite their memorandum?  Wells Bennett at Lawfare points to an extraordinary passage appearing in a lengthy story in today’s New York Times on targeting Awlaki, by Scott Shane, Mark Mazzetti, and Charlie Savage.  Notes Wells:

[T]he article says that OLC’s legal workup was influenced by “a legal blog that focused on a statute that bars Americans from killing other Americans overseas.”   It is unclear to what legal blog the authors refer (and hard to know for sure what affected OLC’s thinking)—but the timing and content suggest this Opinio Juris post by Kevin Jon Heller.

Congratulations to Kevin for having re-shaped the contours of US government thinking, if that’s true.  I’m not sure whether Kevin would regard this as the Lord Works In Mysterious Ways, or instead the Devil Quoting Scripture for His Own Purposes, but in any case, congratulations. (And thanks to Peter Margulies for telling me about this; I haven’t been on blogs all day, because the day in DC has been beautiful, and I Have A Life, not to mention a chapter owed to Ben Wittes.)

Ancillary Discovery in Aid of Foreign or International Proceedings

by Roger Alford

I have posted on SSRN my latest article, “Ancillary Discovery to Prove Denial of Justice” just published in the Virginia Journal of International Law. It analyzes Section 1782 discovery proceedings in the context of BIT arbitration and argues that there is now uniform agreement among federal courts that investment arbitration panels are “international tribunals” within the meaning of Section 1782.

But the article has salience outside that context, and could be applied to many foreign or international proceedings. One plaintiff involved in a French proceeding, for example, served a discovery subpoena on a French party while he was visiting a museum on vacation in the United States, thereby incorporating American discovery into the French proceeding. A German defendant in a German proceeding issued a Section 1782 discovery subpoena on the American plaintiff, and thereby incorporated non-reciprocal American-style discovery into the German proceeding.

The article presents several conclusions regarding the growing use of ancillary discovery in international adjudication, particularly in the context of investment arbitration claims against respondent states.

First, ancillary discovery under Section 1782 reflects a congressional intent to allow interested parties to avail themselves of liberal discovery under the Federal Rules of Civil Procedure, resulting in the indirect incorporation of American-style discovery into foreign or international proceedings. If this trend continues, American discovery will become an important ancillary mechanism to gather evidence, in addition to and perhaps in lieu of the traditional evidence gathering procedures utilized by foreign or international tribunals. For example, I outline in the article how all the important fraud information Chevron received against Ecuador came from Section 1782 proceedings, not evidence gathering pursuant to foreign or international proceedings.

Second, liberal discovery pursuant to Section 1782 promotes evidentiary forum shopping, encouraging parties to pursue ancillary discovery in the United States rather than rely on the discovery procedures available in foreign or international proceedings. If parties can rely on the liberal discovery standard of FRCP Rule 26, requiring only that the requested information is “reasonably calculated to lead to the discovery of admissible evidence,” then why opt for narrow discovery approaches of foreign or international tribunals?

Third, the use of Section 1782 in aid of international tribunals reflects sensitivity to the comity of courts, not the comity of nations, such that federal courts determining whether to order ancillary discovery should consider the international tribunal’s receptivity to such assistance, but not the attitude of the foreign sovereign responding to allegations of international law violations. International tribunals thus far have been extremely passive in their role in this regard, whereas respondent state’s have protested vigorously, but to no avail.

Fourth, in the specific context of investment arbitration, providing foreign investors with a remedy for denial of justice, together with a robust means to prove such a violation, alters the host State’s incentives and requires it to play a two-level game that reconciles international obligations with domestic political preferences. Robust evidence gathering at the international level increases the likelihood that respondent states will be liable for international law violations.

Finally, the article outlines the possible abuse of ancillary discovery under Section 1782. Chevron’s recent subpoena of Kevin Jon Heller’s email logs is an example. Email providers such as Google, Yahoo, and Microsoft are becoming obvious targets for discovery by parties seeking access to email account information of individuals involved in domestic, foreign, or international proceedings. Section 1782 is particularly vulnerable to abuse where one party is situated (or transiently found) in the United States, while all the relevant information of the other party is located abroad.

A Native American Mutual Defense Treaty Against Tar Sands Projects

by Duncan Hollis

Last week, a Ceremonial Grand Council was held on Ihanktonwan homelands (located within the boundaries of the U.S. State of South Dakota) which concluded and negotiated the “International Treaty to Protect the Sacred from Tar Sands Projects”.  I can’t find a specific list of participants, but news reports suggest signatories included representatives from an array of U.S native American Tribes and Canadian First Nations.  The treaty (see here for the text) is seven articles long, most of which involve establishing the authority of indigenous peoples’ over their remaining land, including the authority to oppose tar sands oil projects (tar sands are unconventional oil deposits in sand and sandstone that are saturated with a particular form of petroleum; oil is produced from these deposits either by strip mining or using wells that inject steam, solvents and/or hot air into the sand).  The treaty signatories oppose oil work on tar sands for manifold reasons, including their degradation of the “the soil, the waters, the air, sacred sites, and our ways of life”.  In Article VI, the signatories

[A]gree to mutually and collectively, as sovereign nations, call upon the Canadian and United States governments to respect our decision to reject tar sands projects that impact our sacred sites and homelands; to call upon the Canadian and United States governments to immediately halt and deny approval for pending tar sands projects because they threaten the soil, water, air, sacred sites, and our ways of life; and, confirm that any such approval would violate our ancestral laws, rights and responsibilities.

Article VII then goes on to establish a mutual defense commitment of sorts, wherein the signatories

[A]gree to the mutual, collective, and lawful enforcement of our responsibilities to protect our lands, waters, and air by all means necessary, and if called on to do so, we will exercise our peace and friendship by lawfully defending one another’s lands, waters, air, and sacred sites from the threat of tar sands projects, provided that each signatory Indigenous Nation reserves and does not cede their rights to act independently as the tribal governments see fit to protect their respective tribal interests, further provided that each signatory Indigenous Nation reserves its inherent sovereign right to take whatever governmental action and strategy that its governing body sees fit to best protect and advance tribal interests affected by the pipeline project consistent with the agreements made herein and subject to the laws and available resources of each respective nation.

I find this treaty enormously interesting from a constitutional and international law perspective.  Of course, the treaty implicates other issues as well — environmental degradation, indigenous peoples’ rights, Canadian law, etc., but I’m not enough of an expert to opine on such questions.  Whatever its merits, though, I wonder what legal authority U.S. Native American tribes had to consent to conclude this treaty, let alone consent to be bound by it in the future (which the treaty says will occur via ratification by the “governing bodies of the signatory nations”).

[Update: Stephanie Farrior writes in with an important clarification.  Although the United States, Canada, New Zealand and Australia all initially opposed the the UN Declaration on the Rights of Indigenous Peoples, all four states have since formally expressed their support for the Declaration: Australia in 2009, and Canada, New Zealand and the United States in 2010]