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.

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.