News

Torres Colombian paramilitary violence lawsuit against BP proceeding in UK courts

Highlighting a new lawsuit in UK courts by Colombian trade union leader Gilberto Torres against BP, alleging BP complicity in its funding of a paramilitary brigade that kidnapped and tortured him in 2002.  Details of his story were reported in the Guardian last month:

Torres, then 39, had organised an oil workers strike three months earlier to protest over the murder of another trade union leader, Aury Sara. He was worried, and had even asked the authorities to issue him with a handgun for protection.

As he left the El Porvenir oil-pumping station in Casanare to drive the 12km home, he passed a Mitsubishi Montero and recognised the distinctive van as belonging to security staff at Ocensa, the oil-pipeline company. He tooted his horn in greeting, as was customary.

Five minutes later, the van had turned around and was following his car. It rammed into him. As he looked up, he was staring at the barrel of a gun. His nightmare was just beginning.

His kidnappers were from the Self-Defence Forces of Casanare (ACC) – one of the most powerful and feared of the rightwing pro-government paramilitary brigades during Colombia’s vicious civil war. He was tied up and bundled into the back of the Ocensa van and driven off. . .

After being held for 42 days, he thought his moment had come. “They woke me up at 5am, with the chains and blindfolded, and took me to this hole. They put barbed wire on top of me and I couldn’t lay down. I was kind of dizzy from the pressure of the chains and I had wounds around my body so the ants and insects started to eat my wounds. These big red ants that literally were eating my flesh.”

It rained, and the water came up to his chest. He was convinced he was going to die.

Then, a miracle.

“The commander received a call saying: ‘Send the cattle to be cleaned up. It needs to be sent to the fair.’ So we went to the river. I washed myself, and when I was putting on my rags, the commander said: ‘Not today, engineer. You should wear your nice new clothes, as you are going to be in the media.’”

Unknown to Torres, his trade union colleagues had mounted a strong campaign for his release and were now threatening another expensive national oil strike. Even in Colombia, killing him now would be very difficult for those behind his abduction.

And so he was freed into the arms of the Red Cross. He fled first to Spain and now lives in the Dominican Republic. He is too afraid to go home, and his family has split up as a result.

The UK firm Deighton Pierce Gylnn is representing Torres.  It has been partially crowd-funded through Crowd Justice.  The focus on BP stems from the fact that BP held 15.2% of Ocensa’s shares at the time and allegedly failed to take reasonable precautions to prevent the paramilitaries from abducting, torturing and killing people.  Evidence regarding the link between Ocensa and the paramilitaries emerged from Colombian criminal trials of three of Torres’ kidnappers in 2010.  Lawyers, including Terry Collingsworth and DPG lawyer Sue Willman, are claiming that the Torres case could be the “tip of the iceberg” with respect to complicity claims arising from Colombian paramilitary violence.


New human rights complaint against Auchan

Sherpa and two other French NGOs have filed a new complaint against retailer Auchan alleging the company disseminated misleading information to its customers and the public about its relationship to manufacturers in Rana Plaza.  The new complaint appears to follow the dismissal of an investigation into the same by a prosecutor in Lille.  That investigation, it appears, itself followed an earlier complaint by Sherpa et al. which was more focused on the merits, i.e., alleging that “the retailer had not taken all measures within its power” with respect to Rana Plaza.  I am insufficiently familiar with French procedure, but the BHRRC reports that now that the Lille prosecutor has decided not to pursue charges, the complaint is a means for Sherpa et al. to petition an investigating judge to conduct an inquiry.  Sherpa is linking the complaint to its broader reform efforts, including backing a “duty of care” legislation that is working its way through the French Parliament:

Our organisations also recall that without establishing the legal responsibility of the prime company as regards any damage that could be caused throughout its subcontracting chain, the victims’ access to compensation remains almost impossible. They demand that the bill on the duty of care* is added to the Senate’s agenda without delay. The vote by the National Assembly at its first reading last 30 March constituted a first historic step in the defence of basic rights and of the environment.


Endless Litigation Dept: Al Shimari lawsuit dismissed yet again

Al Shimari, one of the few human rights/corporate accountability cases to have survived appellate review after the imposition of Kiobel‘s new extraterritoriality requirements, was recently dismissed, yet again, by Virginia federal judge Gerald Lee on June 18, this time on political question grounds.  In short: “a decision as to the merits of the torture and conspiracy claims alleged in Plaintiffs’ Complaint would require the Court to question the sensitive judgments of the military.”  So, out it goes.

Aggravatingly, the court gets to this conclusion by finding that “the U.S. military chain of command exercised total control over how military and civilian interrogators performed the interrogation mission at Abu Ghraib.”  If this reasoning is upheld, we’ll have nice little circle, given that the government has (largely successfully) disclaimed responsibility because the atrocities were committed by contractors, not military personnel.

CCR and it co-counsel will appeal.  But the Shimari case is now seven years old — part of litigation that has been going on for 11 years, seeking some measure of justice for the victims of the atrocities of Abu Ghraib.   While the fight continues, the case in the meantime continues to stand next to the U.S. government’s refusal to accept responsibility or impose accountability on anyone other than a few rank-and-file so-called “bad apples.”  U.S. “exceptionalsm” at its ugliest.

Why the U.S. even bothers going through the motions of, say, condemning brutalities by dictatorial regimes, or praising the advancement of human rights is beyond me.  To rest of the world it will all be taken as rank hypocrisy, until we address Abu Ghraib and other issues with the seriousness they deserve.


Obama’s ocean-liner pessimism in light of the Obergefell decision

Friday’s U.S. Supreme Court decision finding a place for same-sex couples in the fundamental right to marry is a historic moment for human rights and a shining example of an increasingly rare beast – the vindication of rights through litigation.

It is also a major political victory for Barack Obama.  I took it all in on Friday in the context of finally getting around to listening to Obama’s much-discussed interview with Marc Maron, whose podcast has been a part of my life since I think it’s late teens or early twenties (it’s now at episode no. 615).  In it, Obama defended the incrementalism that has marked his presidency in the most robust terms I have heard.  He likens social change to steering an ocean liner, arguing that ships that big, like societies, don’t turn 40-50 degrees all at once, and you just have to be happy with making a 1-2 degree turn in the right direction and hopefully live long enough to appreciate the change that is made in any significance.

But the same-sex marriage victory suggests Obama’s pessimism might be overplayed.  On this issue, and gay rights generally, he has shown that social change can come about in sweeping fashion, especially where it is driven by principle and conviction by the executive branch.  On gay rights, Obama’s presidency has followed a style entirely unlike the incrementalism and defeatism that has characterized his approach to just about every other issue (at least since health care).  In 2011, the administration announced that it would not defend the Defense of Marriage Act in courts—not just disagreeing with it, but stating that it was unconstitutional and casting it (correctly) as morally repugnant.  In 2012, of course, first Biden and then Obama came out in support of same-sex marriage rights, and the Solicitor General’s office filed briefs in support with the Supreme Court.

But the work that the administration did went far beyond simply expressing a political preference; it used a variety of tools and leadership platforms to unapologetically frame it as the civil rights issue as our time and to frame opposition as oppressive, irresponsible, and disrespectful sometimes to the point of hateful—a harsh characterization but one based on the facts.  In his January 2013 inaugural address, Obama placed gay rights directly in the mainstream of the struggle for sex and race equality: “Seneca Falls, and Selma, and Stonewall.”  In 2013 and 2014, the Justice Dept took aggressive steps to recognize same-sex marriages to the maximum extent possible at the federal level.  And when the Supreme Court stayed a Utah federal court decision in favor of same-sex marriage, thus leaving 1,300 marriages that had been consummated in the interim in the lurch with Utah’s governor openly questioning the legal status of those marriages, the DOJ took the unequivocal position that the marriages were valid and would be respected at the federal level.  The move left Utah looking terrible, bent on ripping consummated marriages out of the hands of loving couples who had finally realized their dreams.  The DOJ took the same position when the situation arose again with Michigan, and even brought similar pressure to bear on the Supreme Court itself.  Throughout the process, the administration kept steadfast despite pressure from sensitive constituencies and allies, like African American pastors.

I don’t know what Obama’s position is on whether or how much credit he deserves for Friday’s historic marriage decision.  In my view, he deserves a lot—he and his team showed exemplary, unflagging, and inspiring leadership on the issue and it made a huge difference.  It turned the ship around, not by incremental degrees but in a sweep of change in, really, the space of only 3-4 years.  But the analysis also shows, in my view, the larger tragedy of the Obama administration.  If he had shown the same leadership on other issues that (I suspect) he believes in but that he has instead swathed in ocean-liner pessimism—torture, militarization, immigration, environmental protection, human rights—imagine where we could be.


Advocacy & analysis, litigation & arbitration: A response to Roger Alford

My response to Roger Alford’s recent post on Opinio Juris, in which he highlights a letter he wrote with colleagues in response to an earlier letter by other law professors (hosted or published by the Alliance for Justice) on issues of investor-State arbitration in the run-up to upcoming debates about TTP and TTIP/TAFTA.  As I note, the debate itself is an important and urgent one — but Alford’s attempt to elevate himself and his views to some privileged privileged position of truth above “political advocacy” is grating and unconvincing.

While I’m not surprised that the author of one letter thinks his letter is better than his opponents’, I think Mr. Alford goes too far by dismissing what he calls the Alliance for Justice letter as “political advocacy,” while characterizing his own as “a memorandum by scholars offering legal analysis.”  I would say both are 80% the former, 20% the latter.

The “analysis” provided by the Alford letter, as I read it, is that the world of international investment disputes is simple and objective: when a state has acted badly, it will be held liable; when it hasn’t, it won’t.  What’s the problem?

The problem is that litigation is litigation, even when it’s arbitration.  While “objective” facts matter, the system is driven by a competitive inter-subjectivity where the parties’ underlying resources and commitment to the dispute are often (some would say always) determinative of the outcome.  States can be trusted to continue to claim they act in the global public interest; corporations can be trusted to aggressively and creatively package state regulatory actions as arbitrary, discriminatory, etc.  The “truth” can be trusted to continue reside somewhere in between.

The case Alford et al choose to highlight as an example, S.D. Myers, is an example indeed.  Alford et al suggest that this is an easy case of state discrimination, asserting that the objective truth is that “Canada’s goal in imposing the [PCB export] ban was not to protect the environment, but to protect Canada’s PCB waste disposal industry, as acknowledged by Canada’s Minister for the Environment in a speech that she gave to the House of Commons.”

In fact, the ban was the product of more than a decade of deliberation by numerous Canadian authorities involving numerous complicated factors and considerations, including as just one example whether the ban was required for compliance with the Basel Convention.  The gloss in Alford’s letter would throw all this out this window in favor of a “truth” purportedly revealed when a cabinet minister, who was obviously not solely responsible for the ban, responded to a question during a parliamentary session with the off-the-cuff summary that “it is still the position of the government that the handling of PCBs should be done in Canada by Canadians.”  I’m not saying this remark was not a legitimate piece of evidence, but playing it for its “ah ha” value, as Alford et al do and as the claimant did in the arbitration, is an example of litigation — and advocacy — that should remind us that we know this process (and its relation to truth) all too well.

And in fact, even accepting the “in Canada by Canadians” position as the government’s official position doesn’t turn the case into a simplistic story of greedy nationalism.  That policy, to the extent it played a role, was substantively justified by the state’s legitimate interest in maintaining capacity and control in an area critical to citizen and environmental health and safety, especially in light of the possibility that the U.S. disposal facilities might become unavailable or were the border to be closed, which had happened  in the past.

The Alford letter tries to take the AFJ letter to task for focusing on what “might” happen.  It’s response, apparently, is to tell us with resounding confidence, is a standalone paragraph, what ”will” happen:

“Corporations cannot and will not gain victory simply by arguing reduced investment value. Rather, legitimate government conduct will be upheld as a proper exercise of sovereignty.”

Great!  We’re done then.  Or perhaps not quite, because how do we know this will happen.  It actually does tend to happen this way in the United States with respect to takings claims under the U.S. Constitution, but that’s because we have a strict interpretation of the takings clause by the highest court in the land, which interpretation is binding on all other (federal) courts, i.e. Tahoe/Lucas/Penn Central and the requirement that only “permanent obliteration of value” can result in a finding of regulatory taking.  Not only is there not a similar doctrine in international investment law, but the disaggregated system as currently established would be incapable of developing and enforcing it.  It could be included in the text of any upcoming treaty, but the leaked treaty texts see the them going in the other direction, setting up a system where regulatory acts will be evaluated according to their “legitimacy” – again, in a disaggregated system where each panel decides for itself, expressly not bound by any larger system of jurisprudence  or higher authority.

This is one of the reasons the AFJ letter complains of the lack of an appeals process.  The Alford letter respond that at least in the ICSID context there is the annulment process.  But  it acknowledges that annulment is available only where the arbitrators have “manifestly exceeded their authority or departed from a fundamental rule of procedure.”  This is akin to the standard for issuance of the writ of mandamus in the common law.  If we were to ditch the availability of appeal in this country and say, let’s just use mandamus to correct the most egregious cases, I doubt people would be satisfied with this as sufficient due process.

It’s also worth noting the details of the Alford et al assurance that states will have to pay foreign corporations for exercise of state regulatory functions “only if their acts are arbitrary, discriminatory, or otherwise violate the investment guarantees to which states have previously agreed.”  Pay attention to that last clause.  Countless tribunals have read “umbrella clauses” into investment treaties, meaning that any violation of even a purely domestic contract by the state thus gives rise to international liability under the treaty.  So we end up back in the realm on typical commercial contract litigation – except, as the AFJ letter notes but the Alford letter ignores, it’s a one-way street, because system only allows corporations to sue states, not vice versa.

We cannot blind ourselves to the fact that litigation often has a strategic dimension. Companies file lawsuits to pressure their opponents to settle, or to improve their negotiating position in ongoing and evolving relations.  Indeed settlement is probably the dominant feature of commercial litigation, where cases almost never go to trial.  Corporate claimants are certainly aware of this, and have particularly powerful leverage in the form of the system’s built-in sky-high costs and fees.  Remember, in arbitration you’re not just paying for counsel, you’re paying for the judge – in fact for three of them, and typically around $1,000 an hour.  The tribunal wants to hold a motions hearing?  That’s probably $20,000 just to get started, not counting travel and other expenses.   A two-week trial?  Do the math.  And while the U.S. has a fantastic in-house lawyers teed up and ready to litigate these cases, most countries don’t, and end up having to go to the club of elite law firms who specialize in this work and charge correspondingly elite-level fees for the privilege.

The issue of settlement raises particular concerns in the sovereign context because it goes beyond the issue of states using taxpayer money to pay off potentially meritless corporate claims.  States will often be tempted to “settle” a claim by revising the challenged regulation to suit the claimant.  The Alford letter faux-naively suggests that the regulatory taking concern is limited because “nothing in investment treaties requires states to change their domestic regulations” – instead, they can just pay damages.  Come on.  The idea that states are free to keep regulations on the books and just happily pay off private parties (at whatever damages figures those parties’ lawyers can sell to private tribunals) for the privilege is ridiculous.   The budgetary issue will almost always be determinative – by law, every regulation in the US is rigorously evaluated for its budgetary impact – and corporations know it.

As to a number of other issues in the AFJ letter, the Alford letter just ignores them.  The controversial cases such as Philip Morris’ tobacco labeling challenges or the gold-mining cases in El Salvador?  No comment.  The rotating lawyer/arbitrator system, in which a tiny club of individuals sit on panels and represent parties before those panels?  No comment.  The fact that arbitration often allows corporations to bypass domestic court systems?  No comment – except that the letter cites (for a different proposition) the BG Group case, where it was eventually decided that arbitrators were within their rights to relieve a claimant of the requirement to exhaust domestic remedies, even though that requirement was expressly stated in the treaty.

Alford is right that these battle lines are not new.  But his suggestion that he and his colleagues are not part of the fray, or are somehow above it – that his letter is “legal analysis” while his opponents only offer “political advocacy” – is unconvincing.  Just like litigation is litigation, advocacy is advocacy – it’s the butter on the bread of public discourse and Alford is more than welcome to spread it as thick as he likes.  But I for one can’t believe it’s not butter.