Endless Litigation Dept. (cont.)

As has been recently reported (Vice, Courthouse News) the arbitral tribunal hearing Chevron’s baseless “denial of justice” claim against the Republic of Ecuador (through which Chevron hopes to put Ecuador “on the hook” for the environmental judgment that private Ecuadorian plaintiffs won against Chevron in Ecuador’s courts) conducted a series of “judicial site inspections” of the abandoned waste pits and other contamination at Chevron’s former oil operations sites in the Ecuadorian Amazon. The transcripts of the inspection proceedings are available here.

For someone who was intimately involved in the judicial inspections process in the original case back in 2005-2006, reading the transcripts is an experience thick with déjà vu. The same scene: roosters crowing, sudden torrential rains, heat and insects, strained jokes about trying to hold it all together in a jungle setting. The same arguments: the open pits, the hidden pits, the produced water dumping system, the bogus remediation; and from Chevron: the RAP, the RAP, the RAP (i.e., the settlement which Chevron pretends released it from taking responsibility for the majority of the contamination, except that the private claimants in the Ecuador case were not party to it and in fact it expressly stated that it did not apply to their claims).

In between now and then, the same sites — ridiculously obviously contaminated sites — have been examined again and again and again and again, by government investigators, expert teams for various parties in various litigations, various human rights delegations, and countless celebrity and other observers. How long can Chevron continue to drag the world through this charade?

After enough people visit, will we at some point reach a critical mass? As Ted Folkman at Letters Blogatory astutely writes, “there is a bit of res ipsa loquitur that works in favor of the Ecuadoran position” when a person leaves the safe confines of the United States (where Chevron has successfully tainted the story of the Ecuador case with a blizzard of false allegations of fraud and wrongdoing) and arrives to see the pits themselves in all their horrible glory. “There are, of course, experts on both sides of the case, but when you are at the pit, you can see the oil, and a layman can simply look at the topography of the site and see how the oil would likely migrate.”

In fact, with all respect to Ted, what most people see is not migration of contaminants, but toxicity, sickness, and death, especially if their visit is combined to any degree with discussions with local residents about their invariably tragic family histories. To the extent most peoples’ thoughts stray into the legal realm, they typically start with questions of criminality, recklessness, negligence, and a commensurate call for justice.

A decade ago, shortly after I left full-time work on the case, Chevron made a public promise that it would inflict “a lifetime of appellate and collateral litigation” on the plaintiff communities if they dared to continue with their case and push it through to judgment. One cannot argue that an oil company like Chevron is not wise in the ways of the world and the halls of power; it knew it could inflict just such a fate, and it has.

Chevron has laid its cards on the table. It knows what it is doing. Now it’s our turn — “our” most broadly, basically everyone in society who is not Chevron or a reflection of its bottomless self-interest. What are we doing? The world will have to change if this company is going to change course. Maybe it is changing already.

Just clean it up, for f***s sake


What’s Chevron’s Ecuador Play in Canada?

The big news in the ever-ongoing Chevron/Ecuador dispute is the recent decision by the Supreme Court of Canada rejecting Chevron’s ultra-preliminary attack on the Ecuadorian communities’ ability to seek to enforce their historic $9 billion environmental judgment against the company in Canada. The attack was bogus from the get-go; a little noticed fact is that no Canadian court embraced the theory that Chevron ultimately presented to the Supreme Court, but based on a strange petition/counter-petition process it ended up there anyway.

The frustrating part is that this victory — a huge one for the communities, at Canada’s highest court — really only starts the process at what should have been the beginning. Through aggressive (to the point of abusive) lawyering, Chevron wins another three years time evading the Ecuador judgment and wastes a ton of the communities’ resources in the process. A sadly familiar story in this case.

That said, beginning the enforcement process genuinely in Canada is undeniably huge. The litigation shenanigans will continue, but Chevron’s options are dwindling. Chevron is particularly scared of Canada because certain unique features make their primary line of defense — the “corporate veil,” or in Chevron’s case, no less than seven corporate veils between Chevron Corp. and its Canadian assets — potentially irrelevant, a true Maginot Line.

Chevron recently filed its “answer” to the enforcement petition, which outlines its strategy ahead. Some early comments are provided by The Chevron Pit. Chevron’s approach is pretty much as expected. Chevron wants to relitigate every issue that it lost in Ecuador, including issues that are clearly questions of Ecuadorian law for the Ecuadorian courts. Good luck with that.

It is also jump-starting the ol’ “demonization” campaign, in which the company tried to taint the Ecuador judgment and the communities with allegations of bribery and fraud, but did so by relying of paid-for “fact” testimony from a ridiculously corrupt witness (whose testimony has now been disproven by forensic analysis), and by blowing out of proportion a handful of controversial issues in the Ecuador trial process — issues that were raised and addressed on multiple layers of appeal in Ecuador.

As long as the system as a whole got it right — and Ecuador’s system certainly did so in this case — complaints about this or that at the trial level have no bearing on the final judgment and are likely to be ignored by Canadian courts.

The fact that, in Canada, Chevron lawyers appear to be “going all in” on the corrupt bribery witness despite his disproven testimony, and that fact that he was an embarrassment in a related arbitration proceeding, is revealing of just how few options Chevron has left. They would have left this witness in the dust and moved on by now, if they could.

Chevron’s infamous “fight it out on the ice” strategy continues slip-sliding away

 


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.