The case of the day is Washington State Investment Board v. Odebrecht S.A. (S.D.N.Y. 2018). The Washington State Investment Board sued Odebrecht, a Brazilian company, for securities fraud. It sought leave to serve process on Odebrecht by service on Quinn Emmanuel, Odebrecht’s US lawyers in a related criminal case.
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The Higher Regional Court of Frankfurt has affirmed a lower court decision rejecting a claim by an Israeli citizen who resided in Germany and who was forbidden to buy a ticket from Frankfurt to Bangkok via Kuwait City on Kuwait Airways.
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Steven Donziger, the American lawyer for the Lago Agrio plaintiffs, has filed a petition with the Inter-American Commission on Human Rights, alleging that the United States has violated his human rights in connection with the RICO case Chevron filed against him and also his suspension from the practice of law. Aaron Marr Page, a regular Letters Blogatory contributor, submitted the petition on Donziger’s behalf. The petition retells Donziger’s basic story, casting not just Chevron but the United States itself as the bad guy: Chevron, desperate to get out from under the Ecuadoran judgment, undertook a campaign to demonize him, which included taking discovery in the United States via Section 1782, bringing the RICO action against him in New York, vastly outspending him in that case, presenting the supposedly false testimony of Judge Guerra, and once the court had entered judgment against him, suspending him from the practice of law without an opportunity for an evidentiary hearing.
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The case of the day is Outokumpu Stainless USA, LLC v. Converteam SAS (11th Cir. 2018). Outokumpu operated a steel plant in Alabama. It contracted with Fives for the purchase of three cold rolling mills for use in the plant. The contract had an agreement to arbitrate calling for arbitration in Germany under the ICC Rules. GE Energy Conversion France SAS was identified in the contract as a potential subcontractor; its job, in the event, was to provide the motors for the mills. Although the contract defined the buyer and the seller as the “Parties,” it also said that the word “seller” includes sub-contractors, unless expressly provided. GE and Fives were also party to an “Agreement for Consortial Cooperation,” unknown to Outokumpu at the time of the execution of the main contract, which provided that “any and all stipulations of the [main contract] shall apply mutatis mutandis to each party for its own scope of supply and services,” and which contained an agreement to arbitrate disputes in Paris under the ICC Rules.
When the motors failed, Outokumpu sued GE in the Alabama Circuit Court. GE removed the case to the Southern District of Alabama, asserting jurisdiction under FAA § 205. Outokumpu moved to remand, and GE moved to compel arbitration. The district court denied the motion to remand and granted the motion to compel arbitration. Outokumpu appealed.
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Long-time Letters Blogatory commenter Alessandro Spinillo, an Argentine lawyer, has a new post at the Kluwer Arbitration Blog on The Madrid High Court of Justice and the Setting Aside of…
Amazonia Recovery Ltd. was a Gibraltar company set up to hold the proceeds of the Lago Agrio judgment, or maybe the judgment itself. As I’ve reported previously, Chevron obtained a default judgment against the firm in Gibraltar, and in the New York RICO case, the final judgment required Steven Donziger, the LAPs’ American lawyer, to execute a stock power assigning to Chevron his interest in Amazonia.
This injunction has led to a strange satellite litigation. Chevron claimed that Donziger, when executing the stock power, had attached an “addendum” that asserted that the transfer of the shares was impermissible. The addendum asserted that the Amazonia entity was “null and void,” and perhaps that it did not even exist anymore.
Judge Kaplan therefore made a very specific order, requiring Donziger to provide the stock power without any addendum, signed and acknowledged before a notary. There was some more skirmishing—I have read the papers so you don’t have to. But at the end of the day, Chevron is claiming that Donziger has only sent an addendum-less signed stock power, not an addendum-less signed stock power with a notarial acknowledgment. It has moved to hold Donziger in contempt and to impose monetary sanctions and even imprisonment in order to compel Donziger to do what the court has ordered him to do. Donziger has seemed resigned to this at times, defiant at other times. In an email dated September 10, he told Chevron he would sign the document, but on September 13, he wrote:
Can u please indicate your view of the legal basis for your request that I re-execute the Amazonia transfer form and have it notarized, when I already did this several weeks ago.
And in a recent press release, his supporters wrote:
Donziger said he would not comply with any gag order to the extent it runs afoul of his legally-protected Free Speech rights under U.S. and international law. … Chevron is seeking the gag order to prevent Donziger from making a written submission challenging its effort to force him to abandon his interest or legal fee in the pollution judgment as part of a highly flawed U.S. “racketeering” decision from 2014. That decision, issued by U.S. federal judge Lewis A. Kaplan, was based largely on false testimony from an admittedly corrupt Ecuadorian witness paid at least $2 million by Chevron.
This is all very mysterious.
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I’m not sure why I didn’t know of it sooner, but I recently discovered the International Litigation Blog, and I want to recommend it to readers. It’s edited by Quentin Declève, a Brussels lawyer in private practice. Quentin has recently recruited a group of contributors who will be writing regularly from both sides of the Atlantic.
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This is the third post about the new arbitral award in the Chevron/Ecuador case. The first post addressed the tribunal’s finding that the Lago Agrio judgment was ghostwritten. The second addressed the issue of estoppel as it related to the question whether Chevron had an investment in Ecuador so as to implicate the bilateral investment treaty between the United States and Ecuador. Today I am going to take a look at some of the remedies the tribunal ordered. I am planning a fourth and final post about the release Texaco obtained from the Ecuadoran government at the time it did its remediation. In case anyone is wondering, I don’t really plan to write about the merits of the claims under the investment treaty at all, since it’s not really my thing. Jarrod Hepburn at Investment Arbitration Reporter and Diane Desierto at EJIL Talk! have interesting takes.
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Letters Blogatory congratulates the Hague Conference on Private International Law on its 125th anniversary! As Letters Blogatory readers know, the Hague Conference organizes diplomatic meetings and meetings of experts that lead to the promulgation of private international law conventions such as the Service and Evidence Conventions and many others. The Conference then monitors the operation of the conventions and periodically releases conclusions and recommendations on their operation. The Permanent Bureau of the Conference publishes helpful materials on the Conventions and assists states and the bar in other ways.
The case of the day is G2A.com Sp. z.o.o. v. United States (D. Del. 2018). G2A was a Polish company. The Polish government requested judicial assistance from the US government under the US/Poland Tax Treaty in connection with a Polish tax investigation concerning G2A. Specifically, the Polish government sought evidence from the Corporation Trust Co., a firm that acts as registered agent and provides other services for many Delaware entities, concerning Gate Arena LLC, a Delaware company. I’m just speculating, but perhaps the Polish government believed there was a connection between Gate Arena and G2A that was not publicly known but that discovery could prove.
The IRS served an administrative third-party summons on CT, and G2A moved to quash. One of G2A’s arguments was that the IRS’s service of the summons on G2A in Poland by mail was invalid under the Hague Service Convention.
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