Forum Non Conveniens, Enforcement of Foreign Judgments, and the Chevron Litigation

Douglass Cassel is Notre Dame Presidential Fellow and Professor of Law at the University of Notre Dame Law School. He was also an advocate for Chevron in proceedings before the Inter-American Commission on Human Rights.  Views expressed herein are his personal views, and not necessarily those of Notre Dame Law School, Chevron or any other entity.

My scholarly pursuits in international human rights law have not previously inquired into domestic law doctrines of forum non conveniens and enforcement of foreign judgments. My limited acquaintance with these doctrines arises mainly from a single case: the litigation against Chevron for alleged environmental damage in Ecuador. That litigation supplies an instance of the issues posed in this symposium: namely, the circumstances in which defendants who succeed in dismissing suits in US courts on grounds of forum non conveniens should later be permitted to defeat enforcement of a resulting foreign judgment on the ground that it is illegitimate.

Fortunately, two contributors to this symposium—Christopher Whytock and Cassandra Burke Robertson (“W & R”)—recently published a thoughtful analysis of these broader issues in the Columbia Law Review. Another contributor, Professor Ronald Brand, is a leading expert in the field. In such company, perhaps the most useful contribution I can make is to test the analysis and recommendations made by W & R against the facts of the Chevron case, and to ask whether the comparison suggests any modification or refinement of their analysis.

The Litigation Against Chevron

In 1993 residents of the Amazon sued Texaco in federal court in New York for oil pollution in Ecuador. In 2001 the District Court dismissed the suit on grounds of forum non conveniens. A Chevron subsidiary thereafter merged with Texaco, and Chevron defended the dismissal on appeal. The Court of Appeals affirmed in 2002. The following year a related lawsuit was filed in Ecuador. This led in 2011 to an $18.2 billion Judgment against Chevron, which plaintiffs now hope to enforce.

After Ecuadorian courts upheld the Judgment on appeal early this year, plaintiffs asked the Inter-American Commission on Human Rights to press Ecuador to enforce it against Chevron. I co-signed an amicus brief for Chevron opposing their request, on the ground (among others) that the Ecuadorian Judgment was “illegitimate, involves fundamental due process violations, and was not the product of independent and impartial judges.” (I was compensated for my time; plaintiffs later withdrew their request.)

As I have detailed elsewhere, the Ecuadorian proceedings amounted to a fraud in which some (not all) of plaintiffs’ lawyers colluded with Ecuadorian judges. Strong evidence—never convincingly refuted by plaintiffs—indicates, for example:

  1. Lawyers for plaintiffs forged the signature on the “report” of their expert, Dr. Charles Calmbacher, falsely claiming that he found widespread environmental problems, when in fact he did not;
  2. Plaintiffs’ lawyers and consultants ghost wrote the report of the Court’s supposedly “independent” expert on damages, Mr. Cabrera, even drafting it in English (a language he does not understand, so that his report had to be translated for him at the last minute);
  3. In an effort to conceal their fraud, plaintiffs’ lawyers later paid Cabrera thousands of dollars in hush money from their “secret” bank account;
  4. Once their fraud was discovered, plaintiffs hustled to present “cleansing” witnesses—who nonetheless relied on Cabrera’s fraudulent report; and
  5. The Judgment contains data found nowhere in the judicial record, (see also here) but which appear verbatim in plaintiffs’ internal files, complete with identical mistakes and idiosyncratic symbols and punctuation.

Not surprisingly, several US federal courts have found these machinations to be fraudulent. As summarized by one federal judge, “… [W]hat has blatantly occurred in this matter would in fact be considered fraud by any court.”
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Tinkering with Private International Law as a Response to Alleged Human Rights Violations

Ronald A. Brand is Professor of Law at the University of Pittsburgh Law School. Professors Christopher A. Whytock and Cassandra Burke Robertson, have provided a solid discussion of the doctrines…

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