The Unknown Unknowns, Nov 14, 2016

http://opiniojuris.org/2016/11/14/digesting-trump/

The Unknown Unknowns

by Deborah Pearlstein

While I would like to be able to offer some meaningful insight into what we might expect from the foreign policy of Donald Trump, I don’t think it’s possible to overstate at this stage the depth of current uncertainty surrounding what he will actually do. Part of this uncertainty is a function of his preternatural ability to take every position on every topic. (Latest case in point: After Trump repeatedly criticized NATO as overpriced and obsolete over the course of his campaign, we learned from President Obama today that Trump assured the President in their oval office meeting that “there is no weakening” in America’s commitment “toward maintaining a strong and robust NATO alliance.”) Another part of the uncertainty flows from the apparent depth of Trump’s own ignorance of the possibilities of the executive branch. (Again only the most recent example, the Sunday Wall Street Journal reported of Trump’s meeting with President Obama: “Mr. Trump seemed surprised by the scope [of the duties of running the country], said people familiar with the meeting. Trump aides were described by those people as unaware that the entire presidential staff working in the West Wing had to be replaced at the end of Mr. Obama’s term.”)

And then there is the scope and strength of the federal bureaucracy – the career professional staffs of the Departments of State, Defense, Justice, Homeland Security, the intelligence agencies, and more – who, to judge by both newspaper reporting and my entirely non-scientific and idiosyncratic Facebook feed, are grappling mightily with whether to stay or go in the face of extraordinary new leadership. As U.S. Presidents have found time and again (and as I’ve written about in the context of the military in particular, e.g., here), this apparatus makes it difficult sharply to turn the ship of state even with the clearest of intentions and the greatest of bureaucratic skill. There is little indication (as yet) that the incoming administration has either. This is hardly intended to offer comfort or reassurance; I am incapable of greeting with anything but dread the election of a President who has, for example, openly advocated policies that would violate the law – including torturing prisoners with waterboarding “and a lot worse,” and killing the families of those he thinks threaten the United States. It is intended as a check on my own worst speculative instincts. And as a plea to those who are part of that apparatus to start out, at least, by trying to stay.

UNCLOS Tribunal Rules Against China, Jurisdiction Over Philippines South China Sea Claims

Breaking: UNCLOS Tribunal Rules Against China, Unanimously Finds It Has Jurisdiction Over Philippines South China Sea Claims

http://opiniojuris.org/2015/10/29/breaking-unclos-tribunal-rules-against-china-unanimously-finds-it-has-jurisdiction-over-philippines-south-china-sea-claims/

by Julian Ku   October 29th, 2015

It’s been a rough week for China’s South China Seas policy. In addition to facing a US Freedom of Navigation operation near one of its artificial islands, the arbitration tribunal formed under the United Nations Convention on the Law of the Sea has decided that it has jurisdiction to proceed to the merits on the Philippines’ legal challenge to certain Chinese activities in the South China Sea.

I will blog more about this later, but for now it is worth noting that the tribunal unanimously ruled that it can proceed to the merits on seven out of 15 of the Philippines’ claims, and that it reserves the question of jurisdiction on seven other claims as being so interwoven with the merits that it cannot be resolved without first considering the merits.

I will note that the tribunal reserved the question of jurisdiction over the Philippines’ biggest and most flashy claim: the argument that China’s Nine Dash Line “historic rights” claim is inconsistent with UNCLOS. It held that:

The Philippines’ Submission No. 1 does, however, require the Tribunal to consider the effect of any historic rights claimed by China to maritime entitlements in the South China Sea and the interaction of such rights with the provisions of the Convention. This is a dispute concerning the interpretation and application of the Convention. The Tribunal’s jurisdiction to consider this question, however, would be dependent on the nature of any such historic rights and whether they are covered by the exclusion from jurisdiction over “historic bays or titles” in Article 298. The nature and validity of any historic rights claimed by China is a merits determination. The possible jurisdictional objections with respect to the dispute underlying Submission No. 1 therefore do not possess an exclusively preliminary character. Accordingly, the Tribunal reserves a decision on its jurisdiction with respect to the Philippines’ Submission No. 1 for consideration in conjunction with the merits of the Philippines’ claims.

On the other hand, the Tribunal did find that the question of whether the Scarborough Shoal is a “rock” or an “island” is clearly within the jurisdiction of the Tribunal, irrespective of the merits. It did so because it held that there are no overlapping sovereignty or sea boundary claims that might impact the determination.

Overall, it should never be surprising when an arbitral tribunal finds that it has jurisdiction to hear a case. The Tribunal did throw China a bone by noting that it is still possible that seven of the Philippines’ claims (including the Nine Dash Line challenge) could be dismissed for lack of jurisdiction at the merits stage.

But by reserving the question of jurisdiction, and guaranteeing it will rule on the merits for several other claims, the Tribunal shoves the ball back onto China’s court.  Will China continue to claim it is not bound by the Tribunal for lack of jurisdiction, when the Tribunal has now found it has jurisdiction?  China would more clearly be in violation of UNCLOS now than it was before, because UNCLOS Article 288(4) makes it clear that “[i]n the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.”  My guess is China will pretend that Article 288 doesn’t exist and continue to refuse to participate.  The interesting question is whether China will pay any serious price (in reputational terms) if it does so.

Law Review Citations to Blogs

Opinio juris ,

Law Review Citations to Blogs

Posted: 24 Jul 2010 03:43 AM PDT

by Kevin Jon Heller

Dave Hoffman has a post today at Concurring Opinions reporting the results of an empirical study of how often law reviews have cited various blogs. According to the study, blogs have been cited 5460 times since 2006, with the following blogs representing the top-10 in terms of citations:

• FindLaw’s Writ — 618 citations
• Volokh Conspiracy — 402
• SCOTUSBlog — 305
• Balkinization — 259
• Patently-O — 211
• Concurring Opinions — 162
• Sentencing Law and Policy — 160
• JURIST Paper Chase — 130
• PrawfsBlawg — 122
• The Becker-Posner Blog — 104

Opinio Juris has been cited 49 times, which makes us the 27th most-cited blog. I think that’s pretty impressive, given how much more specialized we are than most of the blogs in the top-10 (and in the top-20).

The full Excel spreadsheet is available here.

P.S. My own search reveals 57 citations, which would place us 25th.

A Priest, Rabbi, Imam and Sheik Went to Law School

Posted: 30 Jun 2010 08:50 AM PDT

by Roger Alford

I am in Israel this week on a nationwide tour with Jewish, Christian and Muslim leaders from Los Angeles to examine in detail the current state of Israeli-Palestinian relations. We have heard from Arab and Jewish members of the Knesset, visited hot spots along the Green Line, toured holy sites together, spoken with journalists who report from both sides of the conflict, and met with leading economists, lawyers, academics, business professionals, educators, humanitarians, and religious leaders. The event is sponsored by the Jewish Federation of Greater Los Angeles and the Board of Rabbis of Southern California. It has been a whirlwind tour through the eye of the Middle East hurricane.

I will report on my impressions of the experience in later posts, but I wanted to flag for our readers one really impressive example of cooperation among religious leaders. There is a young, entrepreneurial law school in Israel known as the Ono Academic College. It’s not as prestigious as the major law schools in Israel, but it has launched a new program that is nothing short of remarkable. Ranan Hartman, Founder of Ono (and son of the famous Rabbi David Hartman) recognized that many of the top religious leaders in the country were routinely providing religious legal judgments and even acting as judges in the top religious courts of the country. Yet they had no formal legal training. So he had the audacious idea of reaching out to top Imams, Rabbis, Sheiks, and Priests in Israel to offer them the opportunity to take classes (at deep discounts) for three years together to earn a law degree. Even more amazing, they agreed. So for the past three years approximately forty Muslims, Christians, Druze and Jews have been studying together every Tuesday to earn their law degree. Now that the inaugural class has just graduated Ono will matriculate a fresh crop of Muslims, Christians, Druze and Jews this coming fall. Hartman hopes to reach the cream of the crop of religious leaders in Israel.

Picture the scene. This morning I was sitting in a bland classroom near Tel Aviv with Muslim, Jewish and Christian leaders from Los Angeles as we met with Orthodox (and other) Rabbis, Imams, Druze Sheiks and Catholic priests affectionately discussing their law school experience. These are not young leaders of the future, these are the current religious leadership in Israel, including judges of the Supreme Muslim Council of Israel, the Israeli Rabbinical Courts (Beth Dien), the Druze judicial courts, and Catholic judicial authorities. (For details read this story from the Jerusalem Post or watch this video clip from Israeli national television).

One Catholic priest said that the experience was miraculous in two respects. First, that the religious leaders would choose to attend law school; second that they would grow so close to one another in the process. Not surprisingly, they disagreed about many, many things. As President Ranan Hartman put it today, “I know that my dream may be your nightmare and your dream may be my nightmare, but that doesn’t stop us from learning together and liking one another.” Powerful. I would venture that there’s nothing like it anywhere else in the world.

The Politics of the ICJ’s Kosovo Opinion: Kosovo Can’t Win, But It Could Lose

Posted: 08 Jul 2010 02:37 PM PDT

by Julian Ku

Morton Abramowitz and James Hooper have a very interesting analysis in the National Interest of the likely effect of the soon-to-be released ICJ advisory opinion in Kosovo. The analysis is not legal, but political. And the bottom line, Kosovo is far from out of the woods, even if the judgment is favorable to Kosovo statehood:

No one knows what the court will do, but:

—If the opinion favors Kosovo, that will bring the new state more recognitions to the significant but still underwhelming sixty-nine they have received to date. But they will not win recognition from Serbia nor admission to the UN because of a Russian veto. Nor will Serbia give up its demand for the northern part of Kosovo inhabited mostly by Serbs. Kosovo will have an improved limbo status.

—If the opinion is against Kosovo, the fledgling state will keep its independence but lose some recognitions and the hope of getting into the UN or EU. It will be left in a more dangerous limbo and some serious popular violence against Serbs in Kosovo is quite possible.

—If, as many expect, the court, understandingly fearful of the consequences of its decision, comes down on neither side, many states that have sat on the sidelines of the recognition debate will be more open to recognition, which Serbia well understands. Facing declining international leverage from their resolute opposition, Belgrade will likely seek to open negotiations with Pristina over their future relations. Kosovo, like it or not, will have to engage because its Western patrons will insist. This scenario has both risk and promise and serious ramifications not only for Kosovo and Serbia but also for neighboring Macedonia and Bosnia

Chevron v. Ecuador

WSL July 31, 2008,

Jungle Litigation: A Look at Chevron’s Ecuadorian Court Battle . . .

By Dan Slater

Since we’ve been doing so much globe-trotting today, let’s keep it going and pay a visit to South America. TheAmerican Lawyer just put out a story that takes us “20 miles south of the jungle territory patrolled by Colombian leftist guerrillas” to the “ramshackle” Ecuadorean city ofLago Agrio. It is there, reports AmLaw, “in a dilapidated courthouse,” that a Jones Day team led by Thomas Cullen Jr. is representing Chevron in its battle with 30,000 residents of Ecuador’s Amazon Basin, known as theAmazon Defense Coalition, whose Web address is “www.texacotoxico.org.”

The ADC is represented by by Philadelphia plaintiffs firmKohn Swift & Graf, and a solo practitioner in Ecuador, Pablo Fajardo, who was profiled in this Vanity Fair article.

The group reportedly hopes to hold Chevron accountable for alleged environmental abuses committed by Texaco, which Chevron bought for $35 billion in 2001. Texaco spent 30 years in the region, pumping billions of gallons of oil hundreds of miles west over the Andes to Ecuador’s port cities for shipment to the U.S. (Click here for a past AmLaw feature on the case — Aguinda v. Texaco.)

But the reason for AmLaw’s follow-up, apparently, is a recent Newsweek piece about the case entitled “A $16 Billion Problem.” (That’s how much Chevron might have to cough up.) “The ultimate issue here is Ecuador has mistreated a U.S. company,” Newsweek quotes one unidentified Chevron lobbyist as saying. “We can’t let little countries screw around with big companies like this — companies that have made big investments around the world.”

Newsweek reports that after plaintiffs attorney Steven Donziger, of counsel at New York’sPerlmutter & Gimpel, made a presentation to Barack Obama several years ago, the senator co-wrote a letter with Democratic senator Patrick Leahy to U.S. Trade Representative Rob Portman, urging Portman to allow the plaintiffs to have “their day in court.” An Obama spokesperson confirmed to Newsweek that Obama’s position on the matter remains the same

WSJ , SEPTEMBER 15, 2008 ,

Chevron Lawyers Indicted in Connection with Ecuador Case

By Dan Slater

In July we told you about some jungle litigation in Ecuador that takes us, according to an AmLaw report, “20 miles south of the jungle territory patrolled by Colombian leftist guerrillas” to the “ramshackle” city of Lago Agrio. Some 30,000 residents of Ecuador’s Amazon Basin, known collectively as the Amazon Defense Coalition, hopes to hold Chevron accountable for alleged environmental abuses committed by Texaco, which Chevron bought in 2001.

On Friday, reports AmLaw, Chevron’s legal worries in Ecuador grew when in-house lawyer Ricardo Reis Veiga and outside counsel Rodrigo Perez Pallares were accused of being part of a conspiracy to fraudulently certify that Texaco had completed the cleanup of more than 100 mines in the Ecuadorean rainforest in the 1990s. The government released Chevron from liability on the basis of those certifications.

“The politically motivated indictments mark a renewal of the Ecuadorean state’s attempts to disavow contractual obligations owed to Chevron from contracts signed in 1995 and 1998,” Chevron said in a statement. “Recent events in Ecuador leave no doubt that there is improper collaboration between the government and plaintiffs lawyers [in the civil case]. ”

A lawyer for the Republic of Ecuador, C. MacNeil Mitchell of Winston & Strawn, told The Am Law Daily that the government is not involved in the environmental tort litigation — and that Chevron’s attempt to link the indictments to the environmental suit is part of the company’s strategy to discredit the Ecuadorean courts.

“Chevron isn’t stupid,” said Mitchell. “We may look at individual things they do and say, ‘That doesn’t make sense.’ But they have an overall game plan. They know there’s going to be a big judgment against them in Ecuador. They want to avoid paying it. One way to do that is by saying the Ecuadorean system is corrupt and their rights were trampled.”

New York lawyer Stephen Donziger and Philadelphia plaintiffs firm Kohn Swift & Graf are handling the litigation for the ADC. A Jones Day team led by Thomas Cullen Jr. is repping Chevron in Ecuador.

WSJ , JULY 20, 2009 ,

Chevron Looks For Home-Field Advantage In Ecuador Fight

By Amir Efrati

What’s the strategy of a company when it’s pretty sure it’s going to lose a high-profile lawsuit overseas? That’s the dilemma facing Chevron in its long-running legal battle in Ecuador, where residents of the country’s oil-producing Amazonian rainforest are suing the oil giant for environmental contamination of their land. (LB coverage here and here.)

An expert appointed by the Ecuadorian court has recommended the judge award the plaintiffs, who filed suit in 1993, $27 billion in damages. That would be the biggest environment judgment against an oil firm to date. Of course, after judgment comes the hard part: collection.

However, according to today’s WSJ, the Ecuadorians can’t seize any assets from Chevron in their country because the original defendant in the case, Texaco, which Chevron bought in 2001, stopped doing business there in 1990. So they’ll have to take the fight to the U.S.

Chevron, which expects to lose the case in Ecuador, has been telling its shareholders it doesn’t expect to be forced to pay any judgment. “We’re not paying and we’re going to fight this for years if not decades into the future,” the company told WSJ.

The company’s legal strategy: convince a U.S. judge it didn’t get a fair trial in Ecuador, where the country’s president supported the plaintiffs. Legal experts say that won’t be easy, according to WSJ. Complicating matters is the fact that the suit was initially filed in the U.S. and Texaco fought hard to move it to Ecuador.

Some shareholders have urged the company to settle, but the company told WSJ it won’t be “bullied.”

WSJ , SEPTEMBER 1, 2009 ,

Chevron, Through Videos, Alleges Corruption in Ecuador Case

When Chevron Corp. landed videos purportedly showing an Ecuadorean judge saying he’d already decided to rule against the company in a long-running environmental legal battle, it didn’t just use the videos to try to disqualify the judge, it went viral. The company recently put the videos up on its Web site, on YouTube, and made them the centerpiece of a public-relations push.

Will it pay off? Hard to tell. But for now, the videos have put the judge and the plaintiffs on the defensive. In an interview with the WSJ, Judge Juan Núñez denied making the statements but said he had met with the two businessmen who appear in the video. “I have never said that I will dictate a ruling in favor nor against Chevron nor the plaintiffs,” Núñez said. “What I have said is that the sentence could be released in October or November or as late as January 2010.” Click here for a story from the American Lawyer; here for a story from the Washington Post.

The backstory: A group of indigenous residents of the country’s Amazon basin claims that Chevron should pay for pollution caused by the oil operations of Texaco, which Chevron acquired in 2001. Chevron says Ecuador released it from liabilities after a clean-up by the company.

The company claims the two recordings of a total of three meetings show an alleged representative of the country’s ruling party seeking $3 million in bribes in return for handing out “environmental remediation contracts” to two businessmen after a verdict is handed down by Judge Núñez later this year. Of that sum, one million would go to Núñez, one million to “the presidency” and another one million to plaintiffs in the case.

According to Chevron, the recordings were made between May and June of this year. The judge’s statements show bias and he should be “disqualified from the case,” Charles James, a Chevron executive vice president, said in an interview.

The judge is still accepting evidence in the case. On the video, he agrees with the two men when they state Chevron is culpable and he will act in October or November.

Alexis Mera, subsecretary for judicial affairs in the office of President Rafael Correa, raised questions about Chevron’s role in the videos, and said the government has asked the office of the prosecutor to review them. “Chevron, through its lawyers, is benefiting from a crime of intercepting conversations without authorization, with the aim of damaging Ecuador,” Mr. Mera said.

“The lawyers don’t have anything to do with the alleged video or bribe,” said Julio Prieto, a lawyer for the plaintiffs in Ecuador. “I believe that it is a forged video and also fabricated to seek to implicate the government in acts against the law.”

The company said it has taken “reasonable steps” to verify the videos are legitimate.

The Wall Street Journal , September 24, 2009 Thursday ,

Corporate News: Chevron Files Suit Against Ecuador --- Looking to Protect Itself in Longtime Battle, Oil Giant Seeks Aid Through Trade Pact

By Ben Casselman and Angel Gonzalez

Chevron Corp. is stepping up its offensive in its long-running legal battle in Ecuador, suing Ecuador's government under international trade law.

Chevron is the defendant in a multibillion-dollar lawsuit that seeks to hold the company responsible for environmental damage allegedly caused by Texaco Inc., which Chevron bought in 2001. Chevron has denied the allegations.

Seeking to protect itself from what it says is likely to be an adverse ruling in Ecuador, the California-based oil giant said Wednesday it had filed suit under the terms of a 1997 trade pact between the U.S. and Ecuador. The suit amounts to a request for arbitration through a process set up by the United Nations Commission on International Trade Law to adjudicate disagreements.

The arbitration process is separate from the original lawsuit, which will continue. But under its pact with the U.S., Ecuador must accept the arbitrators' rulings as binding under international law.

In its filing, Chevron argues Ecuador's government is responsible for any environmental damage and should pay any penalties assessed in the lawsuit, which could total $27 billion, according to a court-appointed expert. Chevron also asks that arbitrators force Ecuador's government to pay the company's legal fees and to award "moral damages" due to the government's alleged interference in the case, intimidation of Chevron representatives and other "outrageous and illegal conduct."

The move seeks to capitalize on the release last month of videos that Chevron says reveal a bribery scheme possibly involving the Ecuadorean judge who has been overseeing the lawsuit. Ecuador says it is investigating Chevron's allegations, as well as any potential involvement by Chevron in the scheme. The judge, who has sought to recuse himself from the case, has denied any wrongdoing, and the videos don't show him accepting or soliciting a bribe. On Tuesday, a local court ruled that the judge's withdrawal petition was "unfounded" and ordered him to stay in the case.

Chevron believes the controversy has given new weight to its claim that it cannot get a fair trial in Ecuador.

"We have believed for some time that it would be impossible for Chevron to get a fair hearing in Ecuador," Chevron General Counsel R. Hewitt Pate said.

Eric Bloom, a U.S. attorney representing Ecuador in the dispute, said Chevron has been trying to discredit Ecuador's judicial system for years, and he questioned the videos' authenticity.

"Chevron either got very, very lucky on the eve of a verdict and actually tripped across a legitimate concern, or they helped to stage-manage a fictitious event," Mr. Bloom said. "Both possibilities have to be investigated."

Chevron has denied doctoring the videos or participating in the scheme and has said it took steps to verify the videos' authenticity.

Steven Donziger, an attorney for the plaintiffs in the original lawsuit, said the filing will have "minimal impact" on his case, but he said it is a sign Chevron is becoming desperate.

The plaintiffs in the lawsuit couldn't immediately be reached for comment.

Chevron's decision to seek international arbitration is the latest example of the company's increasingly aggressive strategy in the case, which includes a Web site to rebut plaintiffs' claims and an effort to lobby Congress to revoke Ecuador's trade privileges because of the government's alleged interference in the dispute.

Since Chevron has almost no assets in Ecuador, the plaintiffs will have to seek enforcement of any ruling in their favor in the U.S. or another country where Chevron operates.

Separately, the international arbitration process could take years. In its arbitration filing, Chevron claims that by allowing the lawsuit to go forward, the Ecuadorean government is violating a 1998 agreement that released the U.S. company from environmental liability in return for a $40 million cleanup paid for by Texaco.

The plaintiffs, a group of Ecuadorean residents, argue their case has nothing to do with the Ecuadorean government, so the agreement doesn't apply to their lawsuit. Ecuador's government says it has no control over the judicial process, although Chevron has argued the Ecuadorean judiciary is heavily influenced by President Rafael Correa.

If arbitrators reject Chevron's argument, it could make it harder for the company to fight enforcement of an adverse ruling. But if arbitrators agree that Chevron has no liability, legal experts said, it will be very difficult for plaintiffs to collect on any damages outside Ecuador.

Corporations have increasingly turned to international arbitrators in recent years to resolve disputes with governments. Companies often see the arbitration process as fairer than local courts.

Opinio Juris, September 25th, 2009 ,

Chevron Strikes Back Against Ecuador

by Julian Ku

I’ve only been vaguely aware of the ongoing battle between Chevron and Ecuador. Ecuador courts are currently entertaining an enormous lawsuit against Chevron, but Chevron has really taken the offensive by releasing videos suggesting that the Ecuadorian judge has been accepting bribes. And in its latest salvo, Chevron has filed an investor-state claim under the United States- Ecuador Bilateral Investment Treaty (I think it is 1993 but the WSJ says there is a 1997 one). In any event, it is a novel claim since it seeks to flip all liability for damages back to the government of Ecuador, and even seeks moral damages.

This could be a tremendous case, given its unusual facts. Offhand, it actually resembles Loewen, which challenged a domestic court proceeding (in the United States) as an effective expropriation and unfair and inequitable treatment. It seems like a good move by Chevron, in any event, since it keeps Ecuador on the defensive.

Luke Peterson offers a detailed analysis of Chevron’s request for arbitration here: http://kluwerarbitrationblog.com/

Thanks for the link Roger. Perhaps the most interesting thing about the Chevron claim (as well as another massive arbitration recently threatened by Cemex against the USA) is that, contrary to the Loewen case, the claimants are not even waiting for domestic legal proceedings to be resolved. Rather, the claimants are going to international arbitration in a proactive attempt to get indemnification against any unfavourable results in lower courts. As someone who makes his living tracking and reporting on these cases, this seems like a relatively brave new world to me.

Also, on the date of the US-Ecuador BIT, the confusion arises because the treaty was signed in 1993, but ratified in 1997.

Luke Eric Peterson, Editor
InvestmentArbitrationReporter.com

Opinio Juris , April 1, 2010 -- Ecuador Rejects Arbitration Award

Chevron Wins Round One Against Ecuador

by Julian Ku

This is just the first round of a potentially huge investor-state arbitration claim filed by Chevron against Ecuador. $700 million now, but up to $27 billion later. (For some background, see here and here about a federal court’s refusal to stay one of the arbitration proceedings.).

Chevron Corp (CVX.N) won a three-year-old arbitration fight against Ecuador over a commercial dispute as it battles the country separately over an environmental claim that may result in $27 billion in damages against the company.

An arbitration panel ruled on Tuesday that Ecuador’s courts violated international law by delaying rulings on commercial disputes between the U.S. oil company and Ecuador’s government, and awarded Chevron $700 million.

The arbitration panel partially resolved seven claims that Texaco, bought by Chevron in 2001, filed in Ecuador from 1991 to 1993, Chevron said. The panel found that the courts had breached a U.S.-Ecuador treaty by not ruling on the cases.

WSJ , APRIL 5, 2010,

Misspelling Leads to Big Discovery in Chevron/Ecuador Case

By Ashby Jones

Note to expert witnesses: If someone else is going to file allegedly fraudulent reports in a lawsuit in your name, for heaven’s sake, make sure they spell your name right.

It might sound like common sense. But the misspelling of an expert’s name in a multibillion-dollar environmental lawsuit filed against Chevron is what tipped off Chevron’s lawyers to the fact that the reports may have been fudged, a fact that has now been conceded by the expert himself. Click here for the WSJ story, by Ben Casselman and Angel Gonzalez. Click here, here andhere for earlier LB posts on the Chevron case.

The disclosure comes in the midst of a huge lawsuit accusing Chevron of causing widespread environmental damage in the Ecuadorean rain forest. In 2004, the plaintiffs hired an American biologist named Charles Calmbacher to help oversee soil and water tests in Ecuador.

Reports signed by Calmbacher showed high levels of toxins at two sites and estimated the contamination would cost more than $40 million to clean up at these sites alone.

But in a sworn deposition last week, Calmbacher said he didn’t write the reports submitted over his signature, which said the sites were highly polluted and needed remediation.

“I concluded that I did not see significant contamination that posed immediate threat to the environment or to humans or wildlife around it,” Calmbacher said, according to a transcript provided by Chevron.

Steven Donziger, a New York-based attorney for the plaintiffs said Calmbacher’s reports were only a small part of the overall case, and that other tests have shown contamination at dozens of sites. (Click here for a story about Donziger and the case published last September, from the American Lawyer.)

Chevron has said it expects to lose the case in Ecuador but plans to challenge enforcement of any ruling in the U.S., where it is the second-largest oil company by revenue.

Now, back to the allegedly forged signature. Gibson Dunn’s Andrea Neuman, the Chevron lawyer who conducted the deposition, said Chevron became suspicious after Calmbacher apparently misspelled his own name in letters to the Ecuadorean court asking for an extension in filing his reports.

In his deposition, Calmbacher said he had flown back to the U.S. early due to illness, and had therefore sent pre-signed pages back to Ecuador with the understanding his findings would be printed over his signature. But he said the reports that were filed didn’t reflect his conclusions.

He said he never saw the final version of the reports that were submitted to the court until he was shown them during the deposition.

“I did not reach these conclusions and I did not write this report,” he said in the deposition

I Think It’s Time to Remove Moreno-Ocampo

by Kevin Jon Heller

I don’t make that claim lightly. Despite my belief that Moreno-Ocampo has been a disaster as a prosecutor, I have consistently opposed calls for his removal, whether because of his retaliation against an employee for accusing him of sexual harassment or because he decided to pursue genocide charges against Bashir. I even opposed his ouster when his misuse of confidentiality agreements threatened to destroy the Lubanga trial, because I believed there was a difference between a prosecutor being stupid (by trying to keep documents not only from the defense, but from the judges, as well) and a prosecutor committing the kind of “serious misconduct” or “serious breach of duties” that would justify his removal under Article 46 of the Rome Statute.

Moreno-Ocampo’s latest offense, however, is a different story. Here is how Dov Jacobs explains itat Spreading the Jam (his emphasis):

Yesterday, Trial Chamber I of the International Criminal Court ordered another stay of proceedings in the Lubanga case because the Prosecutor is consistently refusing to apply orders made by the Court to disclose to the Defense the identity of an victims intermediary, following claims of misconduct. The Chamber had found that there was no security risk for the intermediary in the event of a partial disclosure to selected persons, confirmed by the Victims and Witnesses Unit. Despite this, the Prosecutor argued that:

The Prosecution is sensitive to its obligation to comply with the Chamber’s instructions. However, it also has an independent statutory obligation to protect persons put at risk on account of the Prosecution’s actions. It should not comply, or be asked to comply, with an Order that may require it to violate its separate statutory obligation by subjecting the person to foreseeable risk. The Prosecutor accordingly has made a determination that the Prosecution would rather face adverse consequences in its litigation than expose a person to risk on account of prior interaction with this Office. This is not a challenge to the authority of the Chamber, it is instead a reflection of the Prosecution’s own legal duty under the Statute.

To which the Chamber answered:

27. No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations. The judges, not the Prosecutor, decide on protective measures during the trial, once the Chamber is seized of the relevant issue, as regards victims, witnesses and others affected by the work of the Court, and the prosecution cannot choose to ignore its rulings. It is for the Chamber to determine whether protective measures are necessary (following consultation with the VWU under Article 68(4) of the Statute); their nature; and whether they are consistent with the accused’s right to a fair trial. These are issues for the Court, and the Court alone, to determine, having heard submissions and having considered all the information the judges consider necessary and relevant. The Prosecutor now claims a separate authority which can defeat the orders of the Court, and which thereby involves a profound, unacceptable and unjustified intrusion into the role of the judiciary.

28. The Prosecutor has chosen to prosecute this accused. In the Chamber’s judgment,he cannot be allowed to continue with this prosecution if he seeks to reserve to himself the right to avoid the Court’s orders whenever he decides that they are inconsistent with his interpretation of his other obligations. In order for the Chamber to ensure that the accused receives a fair trial, it is necessary that its orders, decisions and rulings are respected, unless and until they are overturned on appeal, or suspended by order of the Court.

As a consequence:

31. Therefore, the Prosecutor has elected to act unilaterally in the present circumstances, and he declines to be “checked” by the Chamber. In these overall circumstances, it is necessary to stay these proceedings as an abuse of the process of the Court because of the material non-compliance with the Chamber’s orders of 7 July 2010, and more generally, because of the Prosecutor’s clearly evinced intention not to implement the Chamber’s orders that are made in an Article 68 context, if he considers they conflict with his interpretation of the prosecution’s other obligations.Whilst these circumstances endure, the fair trial of the accused is no longer possible, and justice cannot be done, not least because the judges will have lost control of a significant aspect of the trial proceedings as provided under the Rome Statute framework.

This is completely unacceptable — and I think there is little doubt that Moreno-Ocampo’s actions would justify the Assembly of States Parties removing him from office. Rule 24 of the Rules of Procedure and Evidence defines “serious misconduct” and “serious breach of duties” as follows:

1. For the purposes of article 46, paragraph 1 (a), “serious misconduct” shall be constituted by conduct that:

(a) If it occurs in the course of official duties, is incompatible with official functions, and causes or is likely to cause serious harm to the proper administration of justice before the Court or the proper internal functioning of the Court, such as:

(i) Disclosing facts or information that he or she has acquired in the course of his or her duties or on a matter which is sub judice, where such disclosure is seriously prejudicial to the judicial proceedings or to any person;

(ii) Concealing information or circumstances of a nature sufficiently serious to have precluded him or her from holding office;

(iii) Abuse of judicial office in order to obtain unwarranted favourable treatment from any authorities, officials or professionals; or

(b) If it occurs outside the course of official duties, is of a grave nature that causes or is likely to cause serious harm to the standing of the Court.

2. For the purposes of article 46, paragraph 1 (a), a “serious breach of duty” occurs where a person has been grossly negligent in the performance of his or her duties or has knowingly acted in contravention of those duties. This may include, inter alia, situations where the person:

(a) Fails to comply with the duty to request to be excused, knowing that there are grounds for doing so.

(b) Repeatedly causes unwarranted delay in the initiation, prosecution, or trial of cases, or in the exercise of judicial powers.

I have bolded what I think are the most relevant provisions. In terms of the first, it is difficult to imagine conduct that more directly threatens “serious harm to the proper administration of justice before the Court or the proper internal functioning of the Court” than refusing to comply with a court order — especially one that a Trial Chamber believes is necessary to protect a defendant’s right to a fair trial. In terms of the second provision, given Moreno-Ocampo’s earlier grossly negligent misuse of confidentiality agreements, I think it is fair to say that he has now “repeatedly” caused unwarranted delay in the Lubanga trial.

I have no idea whether the Assembly of States Parties will even consider removing Moreno-Ocampo because of his latest travesty. But at this point, it certainly should.

July 9th, 2010

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ICC Orders Lubanga’s Release; Will Moreno-Ocampo Back Down? Posted: 16 Jul 2010 05:45 PM PDT by Julian Ku The showdown between the ICC and its prosecutor Moreno-Ocampo over the trial of Thomas Lubanga Dyilo continues, as the Court orderedLubanga’s release. I assume Moreno-Ocampo will appeal (he has five days), but if his appeal is rejected, this could turn out to be a huge embarrassment for the prosecutor. In any event, it is certainly messy. Judges at the International Criminal Court have ordered the release of a Congolese militia chief who used child soldiers in the Democratic Republic of the Congo’s civil war. Sonia Robla, a court spokeswoman, said the decision was rendered Thursday after the prosecution refused to identify the identities of two witnesses during proceedings last week in the case of Thomas Lubanga Dyilo.

Samantar Insta-Symposium

Posted: 02 Jun 2010 10:48 AM PDT

by Roger Alford

The most interesting aspect of the Samantar v. Yousuf opinion yesterday was the final section addressing the “artful pleading” problem. The Court stated that “[e]ven if a suit is not governed by the [FSIA], it may still be barred by foreign sovereign immunity under the common law. And not every suit can successfully be pleaded against an individual official alone.” It then raised three limitations to possible suits against individuals under the common law: (1) absence of personal jurisdiction; (2) dismissing the suit because of a necessary party; and (3) treating the state as the real party in interest where an individual’s conduct was done in his official capacity. (Slip op. at 18-19).

I think the last limitation could prove to significantly limit future suits against government officials. The Court stated that “it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest. Cf. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (’[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.’”).

A quick search suggests that lower courts were split on the question of whether individuals acting in their official capacity enjoyed sovereign immunity. The Court yesterday rejected the argument that individuals fall within the FSIA, but affirmed that they could fall within common law immunity.

Henceforth the central focus of litigation against government officials will be whether they were acting within their official capacity. Defendants will seek to show they were acting with authority or under orders when they tortured or killed, while plaintiffs will argue the opposite. Unlike head of state immunity, it matters not whether they are government officials at the time of suit. All that matters is if their alleged unlawful conduct was taken as a government official. If so, then the state is the real party in interest, and sovereign immunity is triggered.

Posted: 02 Jun 2010 06:51 AM PDT

by Curt Bradley

[We are pleased to share comments on the U.S. Supreme Court's decision yesterday in Samantar v. Yousuf from Professor Curtis Bradley, who has written a great deal on the issue considered by the Court yesterday. We hope to share comments from other informed observers on the decision over the next couple of days ].

As I bask in the glow of not having a single Justice in Samantar accept the theory of the FSIA that Jack Goldsmith and I had proposed, the following thoughts occur to me:

1. The decision strikes me as a perfectly reasonable construction of the FSIA’s text. I’ve always liked and admired Justice Stevens, but I’ve also thought that he had a tendency sometimes to gravitate towards the eccentric. This decision, however, is very lawyerly and does a nice job of addressing most of the counter-arguments. It is easy to imagine that Stevens’ opinion might have persuaded some Justices who were leaning the other way, especially Justices committed to textualism.

2. Supporters of broad executive power should be pleased with the decision. The Court describes with approval the pre-FSIA practice whereby an executive suggestion of immunity would cause courts to “surrender their jurisdiction,” and it appears to view that executive authority as part of the “common law” regime that it says has been preserved for suits against foreign officials despite the enactment of the FSIA. The Court says, for example, that “[w]e have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in determinations regarding individual official immunity.”

3. Those who would describe this decision as a big victory for international human rights litigation are getting ahead of themselves. For a long time, the Filartiga line of cases simply ignored the issue of individual official immunity. That had started to change with some recent lower court cases (e.g., cases brought against Israeli officials), and now the issue will be front and center. The Court in Samantar emphasizes the “narrowness” of its holding and makes clear that it is deciding only the issue of the FSIA’s applicability. It also says that it “does not doubt that in some circumstances the immunity of the foreign state extends to an individual for acts taken in his official capacity,” and it repeatedly suggests that the common law may offer immunity to individual officials. As noted above, the Court also seems to indicate that the executive branch can issue binding suggestions of immunity in suits against foreign officials. Finally, it says (somewhat surprisingly given its textual analysis of the FSIA), that “it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest.”

4. The Court, like the executive branch in its amicus brief, says remarkably little about international law. Contrast that with the British House of Lords’ 2006 decision in Jones, where the court was faced with a similar statutory construction issue and focused extensively on the international law backdrop (and concluded that the Filartiga line of cases was in violation of the customary international law of immunity). Contrast it as well with Justice Stevens’ own opinion in Hamdan v. Rumsfeld, which relied heavily on international law in construing the Uniform Code of Military Justice.

5. Regardless of your views of the impact of the decision on executive power, human rights litigation, or international law, the decision is good for lawyers and law professors. With its undefined references to common law immunity, and its lack of clarification regarding the role of international law, the Court has invited years of litigation and law review articles. Amusingly, one of the reasons the Court cites for declining to construe the FSIA to cover foreign official immunity is that the courts that have adopted this construction “have had to develop, in the complete absence of any statutory text, rules governing when an official is entitled to immunity under the FSIA.” But now that is still going to happen, albeit this time with even less effort by courts to connect their decisions to the policy choices that Congress has made. For discussion of one of the many areas of likely debate in the coming years, see here.

Posted: 04 Jun 2010 06:12 PM PDT

by Peter Rutledge

[Peter "Bo" Rutledge is Associate Professor of Law at the University of Georgia Law School and the author, with Gary Born, of International Civil Litigation in United States Courts]

I’ve been thinking a lot about Samantar since its release as I expect it’ll occupy an important place in the next edition of Gary’s and myInternational Civil Litigation (we’re working on it right now – should be in proof stage by Spring 2011, in book form for Fall 2011 classes). In addition to the several comment, I offer some thoughts on the profoundly unsatisfying decision in the case. To be clear, like Bill and Chimene, I don’t think that the Court necessarily reached the wrong result. Rather, like Roger and Beth, I believe the way it went about resolving the case leaves far too many unanswered questions that, I can attest from recent work on a difficult sovereign immunity case, desperately need some clarification:

1. What’s the scope of the common law immunity for foreign officials? The ultimate section of Samantar can be read to support the notion that this common law immunity survives the FSIA. But prior to Samantar a great deal of confusion persisted among the lower courts over how it operated with respect to such matters as scope of employment, the treatment of highl-level ministers close to the head of state, former employees, and conduct committed in violation of international law. Samantar supplies no guidance on these matters.

2. Whatever the scope, what’s the source of law? Federal common law one might naturally say. But not so fast. How do we square that with the scope of employment prong under the non-commercial tort exception? Some lower court case law suggests that state law, not federal law, informs the question. Other case law looks to the law of the sovereign itself. Consequently, we end up in a situation where different sources of law inform the same inquiry, an unfortunate result.

3. What’s the authority for the federal common law? Most of you are familiar with the very good Seventh Circuit cases arising out of theEnahoro litigation that discuss this question. After Erie and maybe Sosa too, one might reasonably wonder what’s the residual scope of a federal court’s common law making authority in the field. Clearly, there’s some. But just as Sosaleft a lot of people scratching their heads about how extensive it was, this case does too. Of course, one might distinguish between a federal common law to create a cause of action vs federal common law making power to generate an affirmative defense (like immunity). But the defensibility of that distinction depends critically on the value underpinning one’s view of federal common law power. If the underlying value is comity, then perhaps the distinction makes sense. But if the underlying value is separation of powers (or simply a more modest view of judicial lawmaking power), then the two are not so easily distinguished.

4. What do we do about forum shopping? However textually twisted it might have been, the FSIA-based approach to individual immunity at least had the functional value of keeping these cases in federal court. As a result of Verlinden, one could avoid the risk of inconsistent results in federal and state court through the FSIA’s removal provision. But after this case, the risk of forum shopping become rampant – to keep a case in state court, just file align the parties in a way to avoid 1332 removal and structure your causes of action to avoid federal claims. Wouldn’t that be a pretty airtight way of keeping a case out of federal court despite the potentially profound impact of the case on foreign relations (though I agree with Duncan this actually clears a barrier for folks who wish to go the ATS route)? The effect, I suggest, may be greater pressure to find substantive federal common law with preemptive effect in state court (much like we saw in a couple of post-Sabbatino act of state cases)

Unfortunately, the Court simply blew past much of this. Instead of confronting them either in the opinion, or at least some well written separate opinions, they regurgitated the tired old debates over legislative history which don’t meaningfully illuminate things.

Grateful in advance for any reactions (on- or off-line) to these comments as well as, more generally, suggestions in the sovereign immunity chapter in the book. Cheers!