international law

International law provides a rich body of legal norms and judicial precedent that affected individuals and communities can use to understand, articulate, and protect their rights—not just in international courts, but in a variety of local and national courts as well as international agencies, policy bodies, and public forums such as awareness campaigns.

Forum Nobis is at the forefront of efforts to leverage the often under-appreciated tools of international law to help clients achieve meaningful results and social justice outcomes in a timely manner.  The firm offers clients a unique combination of first-rate international legal expertise with a creative, results-oriented style of legal representation and problem-solving.

One of the firm’s strengths is its ability to draw norms and legal precedent from a wide body of international legal authority including but beyond the realm of international human rights law—from multilateral agreements on various subject matters (e.g., transboundary movement of hazardous waste, use of environmental impact assessments, public access to information, intellectual property protection, and many others), to bilateral agreements (e.g., on trade, commerce, energy, security, and other cooperation issues), to international institution norms and mechanisms (e.g., the UN agencies, the ILO, the World Bank, the OECD), to extraterritorial domestic law, such as anti-corruption legislation.  The firm also has a strong command of the important norms and principles found in customary international law.

International law plays a particularly important role in understanding and adjudicating the rights of indigenous peoples—a rapidly-developing area of the law that Forum Nobis has worked extensively in for over a decade.  Forum Nobis also has extensive experience raising issues of human rights and environmental impact in international investment arbitration proceedings, including on behalf of individuals and communities who do not formally have a voice in those proceedings.

The core of Forum Nobis’ international law work, however, is the firm’s ability to put the tools and resources of international law to effective use in the national-level legal proceedings, policy debates, and public opinion dialogues that typically have the most direct impact on affected individuals and communities.  Through its counsel, consulting, and communications practices, Forum Nobis is available to advise affected individuals and communities (and/or their existing legal teams) on international law issues such as:

  • international jurisdiction (including universal jurisdiction), personal jurisdiction, international comity issues;
  • international and comparative choice-of-law/conflict-of-law analysis;
  • forum non conveniens;
  • immunity and justiciability doctrines (political question doctrine; sovereign immunity (FSIA); act of State doctrine; justiciability of human rights generally);
  • domestic application human rights treaties and other international instruments;
  • extraterritorial application of domestic law;
  • corporate liability under international law and other common corporate accountability issues;
  • the international judgment recognition and enforcement process;
  • comparative law analysis;
  • international treaty and customary international law issues.

 

— see: news and commentary related to international law —

 

human rights / indigenous peoples’ rights

The development of international human rights law and human rights institutions was the great global legal work of the last half century.  But the challenge of our time is transforming that law and the work of those institutions into meaningful, timely, positive results for affected individuals and communities whose rights need protecting.  Forum Nobis offers clients unsurpassed legal expertise in the field of human rights combined with a practical, cost-efficient, client-centered approach. Continue reading

environmental justice & indigenous territory

Our natural environment is the foundation of our existence.  The planet and its natural ecosystems are the true commons of humanity.  But according to the widely accepted and alarming concept of the “tragedy of the commons,” individuals acting solely and rationally in their own self-interest will ultimately deplete a shared resource even when it is clear that it is not in anyone’s long-term interest for this to happen.

For most of human history, the world’s abundance was too overwhelming for people to realize this truth on a global scale.  That must change—and is changing.  We must reject a culture founded on pure self-interest and embrace a culture founded on respect, responsibility, justice, and the inherent dignity of living things and natural places.

As the writer and farmer Wendell Berry has said, “there are no sacred and unsacred places; there are only sacred and desecrated places.”  We must ask: “What does this earth require of us if we want to continue to live on it?” Continue reading

accountability & remedies

All individuals, communities, governments, and corporations have the fundamental responsibility to protect and respect human rights, to avoid rights violations in the first instance and safeguard our shared environment.  But these responsibilities are unstable without a third “pillar”: the requirement that, when rights violations do occur, those responsible are held accountable and provide a prompt and adequate remedy to those affected by the violation.  The demand of accountability and remedy is not only a basic requisite of justice for affected individuals and communities, it is an essential element of discipline in moving from rhetoric of rights to the realization of rights in meaningful terms.

Through its counsel, consulting, and communications practices, Forum Nobis works with individuals and communities to seek accountability for wrongdoing and remedies for violations of their rights.

Forum Nobis focuses on using the civil justice system to achieve accountability and remedies.  Among U.S. law firms, Forum Nobis is relatively unique in its efforts and abilities at using, whenever possible, the local courts in the country where the rights violation occurred, as opposed to the more “familiar” litigation forum of the United States.  Using local courts can be an important exercise of self-respect, autonomy, and capacity-building for affected individuals and communities—and as more and more jurisdictions see a rise in effectual remedy-seeking legal practice, more and more  law firms are adopting this approach.  But the approach brings with it a host of difficult challenges, which Form Nobis’ extensive experience allows it to confront with a unique degree of strategic insight.

Forum Nobis also focuses on what are often the most difficult—but most important—accountability cases: those seeking to impose accountability on governments and multinational corporations, the most powerful economic and political actors of our time.  These cases too bring with them a unique and complex set of legal and practical challenges.  Forum Nobis works to share its expertise on these issues in a flexible variety of counsel and consulting arrangements with clients as well as existing legal teams.  Common issues and challenges with which Forum Nobis may be able to help include:

  • immunity/justiciability—advice and analysis concerning the numerous immunity and justiciability issues invariably raised in accountability cases, including claims of sovereign immunity, “act of State” immunity, qualified immunity for government employees or contractors and state-owned enterprises, “political question” immunity, and many others;
  • corporate limited liability—advice and analysis concerning application of the “piercing the corporate veil” doctrine and related doctrines of alter ego liability, successor liability, aiding and abetting liability, and others;
  • joint liability—advice and analysis concerning joint and several liability and other issues in joint tortfeasor cases;
  • aggregate and complex litigation—advice and analysis concerning class certification requirements under U.S. law, multi-district litigation (MDL) procedure and practice, and issues with under-utilized aggregate litigation options available in Europe and Latin America;
  • corporate liability under international law—advice and analysis concerning the debate on whether corporations may be held liable for violations of international law, including international criminal liability;
  • recognition and enforcement of judgments—advice and analysis concerning strategies for seeking or resisting the recognition and enforcement of foreign judgments and arbitral awards;
  • responding to public relations campaigns—assistance to affected individuals, communities, and their representatives in responding to the onslaught of sophisticated public relations attacks that, regrettably, many corporations choose to deploy in response to efforts to hold them accountable for human rights and environmental violations.
  • responding to retaliatory litigation (SLAPPs)—assistance to affected individuals, communities, and their representatives in responding to retaliatory litigation (counterclaims, crushing discovery requests, even trumped-up “fraud” or “contempt” proceedings) that some corporations choose to deploy in response to corporate accountability efforts and other acts by individuals in exercise of free expression.

 

— see: news and commentary related to accountability & remedies —

 

free, prior & informed consent

Free, Prior, and Informed Consent (FPIC) has emerged as one of the most important human rights and environmental principles of our time.  It requires that governments, corporations, and other actors, before beginning or continuing natural resource development projects or other operations, first obtain the FPIC of potentially affected individuals and communities through a robust consultation process that includes use of culturally appropriate means and “representative institutions”, allowance of due process for deliberation and dissent, and many other requirements.  In cases where a project potentially threatens the core survival mechanisms of a group, FPIC goes beyond consultation and provides the affected group with an absolute right to withhold consent.  FPIC is not an aspirational principle for the future, but is an on-the-ground requirement applicable to any project right now, and is increasingly being enforced in binding terms by international and national courts.

Forum Nobis helps indigenous, tribal, and other potentially affected communities understand and protect their FPIC rights.  Through its counsel, consulting, and communications practices, Forum Nobis works with affected individuals and communities on FPIC issues and projects such as:

  • demanding and conducting genuinely robust “good faith” FPIC consultation processes;
  • assessing and critiquing “consultation” processes that fall short of the appropriate standard;
  • holding local votes and other democratic deliberation processes to the highest international standards;
  • using FPIC to understand threats to, and avoid losses to, traditional territories and environmental resources;
  • using FPIC to understand the scope of potential threats of social disintegration and related human rights abuses;
  • using FPIC to make the right choices for their future free from unfair outside pressure or influence.

 

— see: news and commentary related to free, prior & informed consent —

socioeconomic rights

Socioeconomic rights to water, food, housing, education, health, a healthy environment, and others are enshrined in the Covenant on Economic, Social, and Cultural Rights and well-established in international human rights law.  Governments (and private organizations providing traditional government services) must avoid discrimination in access to these basic rights, ensure minimum core obligations, and take progressive steps towards the broader full realization of the rights.  Importantly, recent national and international legal developments have shattered the long-held presumption that these rights are not “justiciable”—that is, directly protectable by legal mechanisms of remedy.  Although the law varies significantly by forum, adjudication of socioeconomic rights is now common in many legal contexts, and additional mechanisms for the protection of these rights are found in a variety of policy and public opinion forums.

Forum Nobis’ close dedication to and experience in this rapidly-changing area of the law allows it to deliver a unique degree of expertise and insight to help individuals and communities understand their rights and develop related litigation strategies, institutional advocacy approaches, research and briefing papers, or other public materials.

 

— see: news and commentary related to socioeconomic rights —

cultural rights & property

A community’s cultural and intellectual assets and resources are inherited, developed, and passed on from generation to generation.  They often form a fundamental part of that community’s cultural or spiritual identity.  They include plant and human genetic resources; traditional knowledge including specialized agricultural, medicinal, ecological, or other skills, practices, or know-how; traditional cultural expressions and practices, such as art, music, dance, designs, names, signs and symbols, performances, ceremonies, and architectural forms; historical arts and heritage property; and many other domains.  International and national laws increasingly recognize the inherent intellectual property rights—in contract, patent, trademark, copyright, origin designation, and newer forms of IP rights—that communities have with respect to all these assets and resources.

Forum Nobis works with indigenous communities—and many other communities—to understand the extent to which this body of law is available to protect their rights and property and to develop strategies and approaches for articulating and advocating for those rights in a variety of forums.  Through its counsel, consulting, and communications practices, Forum Nobis works with clients (and/or their existing legal teams, allies, organizers, or representatives) on traditional knowledge and intellectual property issues and projects such as:

  • engaging with existing international authorities including the World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity, national-level IP authorities such as the U.S. Patent and Trademark Office (USPTO), and existing traditional knowledge databases and documentation processes;
  • preparing database submissions, cultural property declarations, and other documents consistent with international standards;
  • resisting exploitation and expropriation of traditional knowledge and IP;
  • developing and implementing appropriate policy outreach and communications strategies;
  • developing licensing and other contract-based strategies to IP protection;
  • investigation and advocacy on issues related to geographical designations and origin appellations on products;
  • investigation and advocacy on issues related to improperly obtained cultural and heritage property.

— see: news and commentary related to cultural rights & property —

freedom of expression

Freedom of expression, as articulated and protected by countless international instruments, national constitutions, and customary international law, includes the right to free speech and free thought, the right to publicly assemble and demonstrate, the right to petition government directly or through the courts, the right to participate in public affairs, the right to receive information from free and pluralistic media institutions (including online media), the right to access information held by public bodies, even the right to anonymity or privacy as necessary for the exercise of free speech.  These rights are particularly critical as “gateway” rights: essential not only for themselves, but also to ensure the functioning and effective protection of other human rights which are threatened by the secrecy and impunity that prevails absent robust freedom of expression.

Through its counsel, consulting, and communications practices, Forum Nobis works with affected individuals and communities on freedom of expression issues and projects such as:

  • assisting individuals experiencing censorship or threatened by improper prosecution, intimidation, or harassment based on their free expression;
  • fighting Strategic Lawsuits Against Public Participation (SLAPPs) by corporations and other private parties against human rights and environmental defenders, in particular a new generation of corporate “counter-attacks” by corporations on victims and lawyers in corporate accountability cases;
  • advising lawyers and community representatives on how to avoid—and, as necessary, plan for—these types of “counter-attacks”
  • working with civil rights organizations to improve and expand existing anti-SLAPP laws;
  • defending individuals improperly arrested or detained for participating in protests and demonstrations, and obtaining injunctions and just compensation for such detentions when warranted;
  • working with communities and organizations to seek access to information on key environmental and other public policy issues.

 

— see: news and commentary related to freedom of expression —

access to information

At the international level, the rights of listeners and receivers of information are expressly protected along with and in equal measure to the rights of speakers.  While the right to receive information has many facets, in practice it has emerged most powerfully from the proliferation of Freedom of Information and other access-to-information laws now in place in over 90 national jurisdictions.  Indeed, it is now a basic tenet of international law that individuals have a concrete right to access government-held information, subject to certain enumerated exceptions such as security and individual privacy.  This right, like the right to free expression generally, is a critical “gateway” right necessary to protect other fundamental democratic rights such as public participation and government accountability and anti-corruption.  As the Supreme Court of India has stated, “[w]here a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing.”  Even more succinctly stated by the Inter-American Court: “a society that is not well-informed is not a society that is truly free.”

The right to access information can also serve as a critical gateway right to the protection of a range of other rights pertaining to health, land, natural resources, FPIC, self-determination, and more.  Information is power, and too often information disparity is used to further marginalize and manipulate affected individuals and communities.  The right to access information can extend to information of critical importance to protecting one’s right, irrespective of who holds the information, especially in cases where private parties are allowed by government through “indirect methods or means” to exercise control over information of a fundamentally public or rights-concerning nature.

Through its counsel, consulting, and communications practices, Forum Nobis works with affected individuals and communities to gain access to critical information through Freedom of Information petitions, legal cases, and other available means.  Forum Nobis has particular experience fighting efforts by governments and corporation to withhold critical public information under the pretext of “trade secret,” corporate privacy, or similar rationales that may in application be inconsistent with the right to access information.

 

— see: news and commentary related to access to information —

technical assistance

A key aspect of Forum Nobis’ accountability & remedies practice is the firm’s relatively unique emphasis on using the local courts where the rights violation occurred, as opposed to other potentially available foreign national forums such as the United States.  A related aspect is the firm’s emphasis on collaborating with “local” lawyers and support staff with existing experience with the affected community or the overall context of the dispute.

However, especially in disputes involving multinational corporations—which are able to develop highly sophisticated defense techniques both on account of their wealth and their experience litigating many cases in many jurisdictions—the gap in experience between the ideal local team and a defendant can be extreme and highly prejudicial to a fair resolution of the dispute on the merits.  Moreover, the reality of modern litigation, especially in collective actions and/or environmental cases, is that the “technical” expenses of proper litigation management and burden-of-proof requirements can dwarf the purely legal expenses such as lawyer fees.

To address this reality, Forum Nobis’ legal consulting practice works with its project partners to provide technical assistance to local teams on a variety of litigation management and burden-of-proof issues.  These can include:

  • litigation support including management of discovery obligations, effective and efficient use of discovery materials, electronic document management;
  • coordination of expert testimony (and preliminary and rebuttal advice from non-testifying experts) in a range of fields, including environmental science generally, geology, hydrology, biology, anthropology, epidemiology, toxicology, medical specialties, economic analysis, and more;
  • coordination of environmental field work, laboratory analysis, data analysis, and logistics services;
  • design and implementation of Environmental Impact Assessments (EIAs) and Social Impact Assessments (SIAs), as well as assessment of existing EIAs and SIAs;
  • investigation and assessment of potentially applicable environmental remediation technologies and methods;
  • assistance regarding damages assessments, including valuation and quantification of damages to complex assets such as ecosystem services, biodiversity, traditional knowledge and practices, cultural institution services, life cycle analysis of resources, replacement value of resources, and valuations of intellectual property and profitability, as well as related complex damage categories such as environmental impacts, mental pain and suffering, loss of earning potential, lost opportunities, and more;
  • design and implementation of medical monitoring regimes in cases of potential exposure to toxins;
  • preliminary factual investigation in anticipation of litigation or other advocacy;
  • regulatory, code-of-conduct, supply chain, and other compliance investigations, as well as assessment of existing investigations;
  • assistance with fundraising efforts, litigation finance options, and financial resource management;
  • assistance with organization and workflow management, campaign management, technology implementation, record-keeping, accounting, and other regulatory compliance;
  • communications issues (public relations, media relations, government relations), media creation and publishing strategies, and related technology consulting.

 

— see: news and commentary related to technical assistance —

 

What counts as victory in Resolute v. Greenpeace?

Headlines from the growing anti-SLAPP movement on the recent decision by Judge Tigar in N.D. California dismissing most of Resolute’s bogus claims against Greenpeace, some of its employees, and STAND.earth:

A Win for Advocacy: Court Dismisses SLAPP Suit Against Environmental Activists [CIEL]

District Judge Dismisses Corporate-Led Racketeering Claims Against Activist Groups [Taskforce]

DISMISSED! Vast Majority of Lawsuit Defeated! [Greenpeace]

That last one hints a little bit at the problem that remains: the court didn’t dismiss the Resolute’s SLAPP suit entirely, it left a few defamation claims hanging. That means that litigation against Greenpeace (and certain of its individual employees caught up in this sludge match) are heading into intrusive discovery, burdensome summary judgment proceedings, and potentially trial. Per Resolute’s lawyer: “We are pleased that the Court has correctly held that Resolute has properly alleged defamation and unfair competition claims and we will be proceeding aggressively through discovery to trial.”

I get the inclination to declare victory, build momentum and positive energy, and start framing Resolute’s tactics as failing practically as well as ethically. It is also important that Judge Tigar took RICO off the table entirely and returned the lawsuit, however sordid, to the routine realm of defamation. Greenpeace has an incredibly strong case and will almost surely win on summary judgment. So starting the march toward “victory” is perhaps the right move and perhaps the one I would be making if I were representing these defendants.

But for the larger anti-SLAPP movement, it is far too quick and far too simple. As an advocacy matter, the recent anti-SLAPP campaign work of course has a larger focus than just RICO attacks, which are rare. The focus is on all litigation of a certain purpose and on a certain tactical logic, namely using the burden and anxiety produced by litigation to chill speech and vigorous participation by advocates on public issues like environmental defense. These characteristics can apply to defamation claims just as well as RICO. From this perspective, the ugly reality is that the headlines could read: Judge allows lawsuit targeting Greenpeace environmental advocacy to proceed.

And while it is good that the case is narrower, Resolute’s ability to impose burden and intrude on Greenpeace’s constitutionally protected associational activity dramatically escalates past the motion-to-dismiss stage. Resolute will seek dozens of depositions, where its lawyers will stray from the relevant, narrow topic — but the rule at depositions is that you have to answer a question (and challenge it only later) unless you are asserting a privilege. Resolute will also ask for the universe in terms of documents, and while it is easier to narrow document productions on the basis of privilege objections, if Greenpeace resists on the basis of its constitutional rights or privileges, it will have to engage in significant additional legal briefing and maybe even compile an incredibly burdensome log of all documents they claim are privileged.

Finally, it is hard not for conspiracy-minded among us (or those of us who have unfortunately learned to respect the deviousness of the warlike legal teams these companies hire) not to wonder if this was Resolute’s plan all along. As mentioned, the defamation claims are weak. So weak. They should have been dismissed. But by packing them next to a scarecrow army of 296 utterly batshit RICO claims, the weak defamation claims start to look reasonable.

It also appeals to the solomonic instinct, which is strong in every judge I’ve ever been in front of in 15 years of practice. Give a little bit to one side, a little bit to the other. When you issue a decision and both sides claim victory, that’s a smart judge.

Here, all it means it that well over two years after it was filed, now thousands of pages of filings and millions of dollars of legal fees later, we are going to have to keep watching the Resolute v. Greenpeace case. Greenpeace obviously has the energy and resources to keep fighting — and most critically, it has the unwavering support of the environmental and human rights communities. But for most of the rest of the advocates in those communities, watching the case, the SLAPP dynamic is still hard at work.

As Michael Marx told Inside Climate News last year:

An attack against Greenpeace and Stand, two groups that have been really at the forefront of corporate campaigns, is not just an attack on those groups but is an attack on the strategy that NGOs have used to really bring corporations back under control in terms of their social and environmental behavior.

With huge respect to Greenpeace’s victory for what it was, the recent decision is unlikely to dent growing corporate enthusiasm for SLAPP tactics. In fact, perhaps the opposite. Thus an equally valid strategic response might have been to decry it as a failure to confront the main problem presented by the case. Yes, a federal judge needs to fairly process a litigant’s claims. But Resolute’s lawyers used their bogus claims, and the hyperbolic attack language in their briefs, to frame the perception of reasonableness around the facts of the case (and the larger identity of Greenpeace and movement activism) powerfully in their favor. Anti-SLAPP efforts should be aimed at correcting that shift, which in turn could require more loudly defending the principled outer-ring argument on their end, i.e. no SLAPPs on advocacy, period, go home. From this perspective, the early celebrations of victory can be seen as validating the result of a framework that is still dangerously skewed against vigorous  advocacy.

Donziger Petition: Briefing Memorandum

U.S. attorney Steven Donziger, who has represented indigenous and other Ecuadorian Amazon communities in the historic environmental case against Chevron Corporation for over 25 years, is petitioning the Inter-American Commission on Human Rights, claiming that by embracing Chevron’s retaliatory litigation and “demonization” campaign against him, U.S. judicial bodies and other public authorities have inflicted and enabled severe violations of his rights to due process, freedom of expression and association, privacy, and property under applicable international human rights instruments. This Briefing Memorandum serves to apprise the public of the content of the petition, the disturbing facts of the persecution suffered by Mr. Donziger, and the larger context of the threat that such attacks pose to human rights and environmental advocacy more broadly.

Inter-American Human Rights Petition Filed on Behalf of Steven Donziger

 PRESS BULLETIN [.PDF]

U.S. Attorney Steven Donziger Files Human Rights Petition Claiming U.S. Judicial Authorities Failed to Protect Him from Vicious Chevron Retaliation Campaign

Case Raises Larger Issues of Corporate “SLAPP” Retaliation Lawsuits Against Critics and Human Rights Advocates; Global Witness, Greenpeace, and UN Agencies Monitoring Situation and Raising Alarms

Washington, D.C. / Sept. 25, 2018 – Renowned U.S. human rights attorney Steven Donziger, who has helped impoverished communities in the Ecuadorian Amazon maintain a global litigation and advocacy effort against Chevron for over 25 years, filed a petition with the Inter-American Commission on Human Rights (IAHCR) on Monday. The petition details how Donziger has suffered a massive campaign of retaliatory litigation and media attacks from Chevron that has been facilitated by U.S. judicial and other institutions. Chevron has openly bragged of its efforts to “demonize Donziger,” has frozen Donziger’s bank accounts, and recently asked a U.S. court to imprison him.

The new petition raises broader issues of the ability of corporations to abuse the legal process to silence critics and punish adversaries with “Strategic Lawsuits Against Public Participation,” or SLAPPs. The SLAPP problem has been identified for decades, but recent years have seen a massive uptick in such cases. Greenpeace, Human Rights Watch, and other organizations recently launched a national campaign to raise awareness and push back on SLAPPs, using the Twitter hashtags #SLAPPtaskforce and #ProtectTheProtest. The groups identify Chevron’s attacks on Donziger as the seed from which a whole new generation of attacks has grown.

Judicial harassment of human rights defenders by corporations and governments is also a high-profile issue for human rights organizations and UN agencies at the global level. The UN has a dedicated research office or “rapporteur” focused on the problem, and organizations including Amnesty International, Global Witness, and Frontline Defenders regularly issue reports expressing alarm at the growing incidence of retaliation. Global Witness recently indicated that it would be closely monitoring the Donziger case.

While the retaliation and outright “demonization” of Donziger has been driven by Chevron, acting as a private party hoping to “taint” the legitimacy of the $12 billion environmental liability that four layers of Ecuadorian courts have imposed on the company, the petition asserts that ultimately responsibility lies with the U.S. institutions which have tolerated, facilitated, and at times openly encouraged the attacks.

In one example of the problematic judicial conduct in the case, in September 2010, U.S. federal judge Lewis A. Kaplan mocked Donziger from the bench as a supposed “plaintiff’s lawyer” with a big “imagination” for daring to sue Chevron in Ecuador. Shortly thereafter, Chevron filed a civil “racketeering” lawsuit against Donziger and the U.S. judge, Lewis A. Kaplan, took extraordinary steps to assign it to himself. At the first hearing in the racketeering case, Kaplan praised Chevron as “a company of considerable importance to our economy” and worried that U.S. consumers would be hurt by enforcement of the Ecuadorian environmental liability. “I don’t think there is anybody in this courtroom who wants to pull his car into a gas station to fill up and finds that there isn’t any gas there because [Donziger’s clients have enforced their environmental judgment] in Singapore or wherever else,” the judge said.

Kaplan refused to seat a jury—unprecedented in a racketeering case—and ultimately decided the merits of Chevron’s claims himself, in a 500-page decision that concluded that the Ecuadorian environmental judgment was tantamount to “extortion” by Donziger against Chevron. The court acknowledged it could not stop efforts to enforce the judgment in other countries, but issued the lengthy decision in response to Chevron’s calls for “a freestanding determination” of the facts as Chevron saw them, that the oil company could then use to try to shut down enforcement efforts elsewhere.

Kaplan’s judgment was decided under a low civil standard of proof—“more likely than not”—even though it purported to find Donziger responsible for criminal acts under U.S. federal law that normally require findings “beyond a reasonable doubt.” Other authorities, such as the lawyer “grievance” committee in New York which regulates the licensing of attorneys, are now seeking to strip Donziger of his license to practice law based on this alleged criminal responsibility. The New York state court hearing the matter has preliminarily decided it can invoke “collateral estoppel,” refusing to hear any of Donziger’s evidence or claims of innocence on account of Judge Kaplan’s decision, even though many of Kaplan’s findings have been contradicted by four layers of Ecuadorian courts and effectively disproven in collateral proceedings.

“What seems to be happening to Steven Donziger, given evidence in the public domain, is a serious case of judicial harassment – a sham process, wrapped up by the gentile world of the New York Bar as legitimate,” said Simon Taylor, a co-founder and director of Global Witness. “Instead, the attacks on Steven seem to have all the hallmarks of the kind of bullying and persecution we have documented and witnessed in countries around the world, where threats to corporate interests result in vicious counter-attacks.  I am particularly concerned about what appears to be a continuing effort, invoking collateral estoppel, to deny Mr Donziger a public hearing to defend himself and to provide evidence.

“Mr Donziger now appears to have joined a long list of the persecuted, and I am particularly shocked that this is taking place in New York—a jurisdiction with a proud reputation for its fight against corruption and the corrupt,” Mr. Taylor added. “The fact that this is happening on the basis of highly suspect evidence, and possibly false witness testimony, raises the distinct possibility that Mr. Donziger is being framed.  It is critical that this ‘process’ be monitored by all concerned to protect the rule of law and the maintenance of free, open, and accountable societies – and that is precisely what we will be doing.”

The central evidence in the racketeering trial against Donziger was testimony from a witness recruited by elite corporate espionage firms on behalf of Chevron. The witness had an acknowledged history of paying and receiving bribes and had actively sought to “sell” false testimony and corrupt outcomes to both parties in the Ecuadorian environmental lawsuit. Chevron has paid him in excess of $2 million, despite legal and ethical prohibitions on paying “fact” witnesses. While Judge Kaplan credited the witness’ testimony in the racketeering trial, the witness later admitted to intentionally lying on the stand in that trial, and the core of his testimony (claiming that a bribe was agreed to but never paid in the Ecuador case) was disproven by a forensic analysis of the Ecuadorian judge’s courthouse hard drives.

Donziger presented the petition with the assistance of Forum Nobis PLLC, a human rights firm in Washington, D.C. that also represents the Ecuadorian communities that brought the environmental lawsuit in Ecuador. Aaron Marr Page, the managing attorney at the firm who also litigates cases involving the denial of human rights in U.S. state and federal courts, said that the case illustrated the critical role of the Inter-American Commission as regards national justice systems, especially in cases involving “important” domestic political and economic interests, situations of vast disparities of resources, and other factors involved in the Donziger case.

“Americans hate to hear this, but our court systems, including our appellate and other curative mechanisms, aren’t flawless,” said Page.  “Just as in other systems in the hemisphere that we have no problem criticizing, cases in our own system do sometimes go off the rails. The involvement of ‘a company of considerable importance to our economy,’ as the courts characterized Steven’s case, can in particular often lead to skewed results.”

Page added that certain features of the U.S. justice system made it particularly vulnerable to abuse, including the availability of the “civil racketeering” action—called by one judicial critic “the litigation equivalent of a thermonuclear device”—as well as the enormous financial costs of litigating in a system distinguished by its elaborate document discovery protocols and motion practice burdens, which can make it impossible less well-resourced human rights defenders to fight off even the most bogus claims . “It all leads to the cynical aphorism all lawyers dislike but recognize: ‘you get the justice you pay for,’” said Page. Chevron is reported to have spent well over $1 billion in legal fees and expert costs in its prosecution of the civil case against Donziger.

In the four years since the racketeering judgment, Chevron has kept up a steady press of discovery requests, contempt motions, and other legal harassment techniques to keep Donziger tied up in court. “I know this is all an attempt to silence legitimate advocacy and help Chevron escape from its responsibility for the hundreds of toxic waste pits abandoned at its former operations sites in Ecuador,” Donziger said. “But that doesn’t make it any easier to bear personally, especially when the attacks are starting to threaten my ability to provide for my wife and son.”

A particularly disturbing feature of the racketeering trial was that Chevron, two weeks prior to trial, agreed to forfeit “all money damages claims” against Donziger because that allowed Judge Kaplan to refuse to seat a jury and instead decide the merits of Chevron’s claims himself. It was widely reported at the time that mock juries assembled by Chevron’s legal team were rejecting the company’s claims. Despite having forfeited its money damages claims, Chevron later moved Kaplan to order $33 million in money judgments against Donziger. After Judge Kaplan began granting these requests, Chevron froze Donziger’s bank accounts and has recently asked Kaplan to send Donziger to jail until he complies with certain requests to transfer his property to Chevron.

The Inter-American petition raises claims of denial of due process on multiple grounds, and violation of the rights to freedom of association, expression, privacy, and property, as guaranteed by the American Declaration of the Rights and Duties of Man and other international agreements. The petition already has received significant attention from the leading civil society groups already mentioned, as well as leading First Amendment lawyers, environmentalists, and Indigenous leaders around the world.

The following media articles detail the treatment by Mr. Donziger by U.S. authorities over the last few years:

The following videos discuss the merits of the underlying environmental litigation that Mr. Donziger assisted with in Ecuador:

For more information, contact:

Aaron Marr Page
Managing Attorney
Forum Nobis PLLC
Tel. 202-618-2218
aaron@forumnobis.org

Back to Basics: Revisiting Chevron’s abandoned oil fields in Ecuador — and the people who live there

A new documentary largely successfully avoids the infinite distractions generated by Chevron’s colossal retaliatory litigation campaign and re-focuses back on what happened–and what is happening today– in Ecuador…