Latin & South America

Last week, the government of Bolivia filed an application in the International Court of Justice against Chile arguing that Chile has breached its "obligation to negotiate in good faith and effectively with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean." Is it just me, or is this the weakest case ever filed at the...

Neither the arbitral tribunal's order demanding Ecuador act to stop enforcement of the $18 Billion judgment against Chevron, nor Ecuador's continued brazen refusal to follow the order is really much a surprise. The Chevron-Ecuador Death Cage Match continues unabated and has gotten so out of control that almost nothing shocks me about this case anymore.  A former Ecuadorian judge swearing...

Argentina is, to put it bluntly, one of the world’s greatest sovereign deadbeats, defaulting on its sovereign bonds more than once as well as bearing the distinction of being the world’s number one respondent in ICSID arbitration claims (or at least close to number one).  Last week, the ongoing struggle between foreign creditors and Argentina found a new flashpoint as...

[Stephen G.A. Pitel is Associate Professor at Western University, Faculty of Law] On May 30, 2012, residents of Ecuador started an action in the Ontario Superior Court of Justice seeking to enforce a judgment in their favour of an Ecuadorian court against Chevron.  The amount of the judgment is a staggering $18 billion.  Chevron has announced that it will resist the enforcement litigation in Ontario. Under Ontario’s common law, confirmed relatively recently by the Supreme Court of Canada in Beals v Saldanha, the test for whether a court will enforce a foreign judgment ordering the payment of money has three requirements.  First, the judgment must be final.  Second, the court granting the judgment must have had jurisdiction on a particular basis.  This is sometimes called jurisdiction in the international sense or jurisdictional competence.  Third, the judgment must be for a fixed sum of money and not a tax or penalty.  In general see Stephen G.A. Pitel & Nicholas S. Rafferty, Conflict of Laws at 159-73. On the first requirement, a judgment is considered to be final even though there is time remaining within which to launch an appeal or an appeal has in fact been launched (as is the case here): Nouvion v Freeman (1889), 15 App Cas 1 (HL) at 10-11 and 13.  However, in such a situation it is relatively straightforward for the defendant in the enforcement proceedings to obtain a stay of the action on the basis that the court should await the results of the appeal.  It would seem likely that Chevron could have the Ontario proceedings stayed pending the results of the appeal in Ecuador.  Even if the enforcement proceedings are stayed, starting them can still have advantages to the plaintiff.  The stay does not stop the plaintiff attempting to obtain a Mareva injunction to freeze assets or other forms of interlocutory relief.

The shoe has finally dropped. Ever since the Invictus Memo was released to the public we knew that the Ecuadorian Plaintiffs were considering twenty-seven different countries to enforce the $18.2 Ecuadorian judgment against Chevron. With Chevron's far-flung assets, it was plausible that the Plaintiffs would choose to enforce the judgment in countries with close ties to Ecuador and...

[Doug Cassel is Professor of Law at Notre Dame Law School] Venezuelan President Hugo Chavez on April 30 directed his Council of State (a policy advisory body) to study Venezuela’s “withdrawal” from the Inter-American Commission on Human Rights.  He asked for their recommendation within days, not weeks.  This is the latest move in the Bolivarian Republic’s long record of denouncing the Commission and the Inter-American Court of Human Rights as tools of US imperialism, supposedly biased against socialist Venezuela. But the real reason for Chavez’ pronouncement, say human rights groups – in my view correctly – is that the Commission and Court hold the Chavista regime accountable for its systematic violations of the independence of the judiciary (1, 2), and of freedom of the press, (3, 4), as well as other serious violations of human rights (5, 6). Chavez’ call was promptly cheered by other high officials in Caracas.  It seems a foregone conclusion that the Council will recommend withdrawal.  Since Chavez has already declared that Venezuela should have withdrawn a long time ago, he is all but certain to heed such a recommendation. Withdrawing from the Commission, however, is not so simple.

[Doug Cassel is Professor of Law at Notre Dame Law School] Kevin Jon Heller’s reply to my post on the fraudulent Ecuadorian judgment against Chevron is entitled, “Chevron’s Buyer’s Remorse.” Heller avers that there is “one reason, and one reason only, that this case was heard before an Ecuadorian court: because that is what Chevron wanted.” Actually, that is what Texaco...

I am not going to respond in depth to Professor Cassel's recent post on Chevron's responsibility for the "rainforest Chernobyl" caused by its predecessor's dumping of million gallons of crude oil and billion gallons of toxic waste into the Ecuadorian rainforest.  The plaintiffs' attorneys have prepared a lengthy and thoroughly footnoted reply to his open letter; interested readers can find...

[Doug Cassel is Professor of Law at Notre Dame Law School] Heller’s reply misses the point of my post, Suing Chevron in Ecuador: Do the Ends Justify the Means? I did not ask whether Chevron is an “innocent victim.” I asked whether the ends pursued by plaintiffs’ lawyers (environmental remediation) justify their means (making covert payments to the court’s “independent” expert from their “secret account,” writing his report and then lying about it, meeting secretly with the judge in an abandoned warehouse, etc.). I answered, “No.” Human rights lawyers cannot vindicate rights by trashing the rights to due process and fair trial. Doing so undermines our moral and professional credibility. I hold that view as a career human rights lawyer, not (in Heller’s ad hominem) as an “advocate for Chevron.” My post linked to my longer open letter, which made explicit that I billed Chevron for representing it on an amicus brief, but not for the time entailed in writing the open letter. Heller’s “other side of Chevron” consists of a series of erroneous, tendentious or unsupported accusations, based almost entirely on press statements by plaintiffs’ PR operatives. In the order he raises them:

In his recent guest post, Doug Cassel attempts to portray Chevron as the innocent victim of illegal and unethical conduct by the lawyers for the plaintiffs harmed by its predecessor's dumping of 16.8 million gallons of crude oil and 20 billion gallons of toxic waste into the Ecuadorian rainforest.  Cassel writes as an advocate for Chevron, so he can hardly...

[Doug Cassel is Professor of Law at Notre Dame Law School] In an environmental suit brought by lawyers for some residents of the Amazon, an Ecuadorian court last year issued an $18.2 billion judgment against Chevron. Readers who follow the case only casually may have the impression that this is a classic case of David vs. Goliath, and that Ecuadorian courts...

This week was a blockbuster one in the ongoing battle between Chevron and Ecuador. On Wednesday, the arbitral tribunal adjudicating Chevron's BIT claim issued an Interim Award ordering Ecuador "to take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within or without Ecuador of any judgment against [Chevron] in the Lago...