I want to thank all of the contributors to today’s symposium. I’m really pleased and honored to be able to host what I think has been a very good discussion of a significant current issue.
I want to comment briefly on what Whytock and Robertson have to say about estoppel. As I understand their position, the doctrinal reason that a defendant who makes representations about the quality of a foreign judiciary can’t be estopped (given the law as it is today) is that the standards a court uses in deciding whether the foreign court is an adequate forum are different from the standards the court uses in deciding whether a foreign judgment is entitled to recognition and enforcement. As they write in their paper: “The difference between the existing foreign judicial adequacy standards at the forum non conveniens stage and the enforcement stage allow defendants to argue consistently that a foreign court is both adequate for forum non conveniens purposes and inadequate for enforcement purposes.” Equitable estoppel or judicial estoppel require truly inconsistent assertions of fact. I think Whytock & Robertson are basically right in their description of the law of equitable estoppel today. But while the law of recognition and enforcement itself is now statutory, both forum non conveniens and estoppel are judge-made doctrines. So it seems to me that if you’re concerned about the access to justice issue Whytock and Robertson identify, it’s just as plausible to say that the law of estoppel should be broadened as it is to say that the law of forum non conveniens should be narrowed. Maybe there is or should be a new species of estoppel that is more like promissory estoppel than equitable estoppel insofar as there is no requirement of a true inconsistency in asserted facts. In cases where the US defendant makes a stipulation about its willingness to abide by the foreign court’s judgment as a condition of obtaining the FNC dismissal, maybe promissory estoppel works here without modification. Or maybe the courts should develop a new kind of estoppel that is sui generis, as the “boomerang litigation” issue is sui generis. It’s equity, man! Equity should be flexible enough to deal with new situations such as this when they arise without being completely bound by formulations of equitable doctrines created to deal with different kinds of problems.
Having made this suggestion, I guess it’s incumbent on me to say whether I think there is a real equitable imperative to close the “access to justice” gap in the first place. I think that there is. The distinction our symposium participants have drawn between flaws in the foreign judiciary that existed at the time of a FNC dismissal versus flaws that only came into existence later seems somewhat artificial to me. The Chevron/Ecuador case provides a good example, I think. Doug Cassel points to “radical and not reasonably foreseeable changes” to Ecuador’s judiciary in 2004. Fair enough, but let’s put that in context. According to the Cingranelli-Richards Human Rights dataset,1 the Ecuadoran courts were rated as “partially independent” in every year from 1981 (when the dataset begins) to 2009, with the exception of 1982, when it was rated as “independent”, and 1991, 1992, and 2006, when it was rated as “not independent.” So I think it is fair to say that in seeking an FNC dismissal, Chevron took a calculated risk that the political winds in Ecuador would continue to blow its way. It does seem to me to be inequitable not to require parties in the position Chevron found itself at the FNC stage to bear the risk they took. Even if Chevron could not have known the particulars of what would happen in 2004 and beyond, it knew that it was seeking to have the case sent to a country with a less-than-sterling record of judicial independence. No doubt there are some countries where the courts are so clearly independent that a US defendant could truly claim surprise.2 But not all countries are in that category.
As a reminder, each symposium participant will have the chance to submit a post for publication tomorrow responding to anything anyone else has written. In addition, they—and you!—can comment on any of the posts.
Thanks again to the participants for making day 1 of this symposium a success!
- the Lago Agrio plaintiffs rely on this dataset to make the case that the Ecuadoran judiciary is independent, but as I have written elsewhere, I don’t think the data support their case, either: the Ecuadoran courts hardly get a glowing endorsement from the data.
- If the Canadian revolution breaks out tomorrow and the courts there are replaced with People’s Revolutionary Tribunals, I think it would be fair to say that any US defendant would be surprised by the change.