Why didn’t the Boliden case settle?

Reprinted from CSRWire Talkbalk

Sometime later this year or early next, lawyers for Swedish mining giant Boliden will head to court in northern Sweden to square off with lawyers for over 700 community members from Arica, Chile.

A Clean-up Gone Wrong

The dispute concerns some 20,000 tons of arsenic-laden smelting waste that Boliden off-loaded in the mid-1980s to an inexperienced Chilean enterprise that claimed it could “process” the waste, but in fact just dumped it on the outskirts of town. Boliden claims the dumping wasn’t its fault; the Chileans say Boliden was negligent.

The lawsuit is a vindication of the affected Arica community’s decades of effort to demand justice, but at the same time presents them with new uncertainties: a jurisdictionally complex case, a new round of legal costs (albeit to be borne by the lawyers), the prospect of lengthy appeals, and litigation’s well-deserved reputation for driving even the most embattled parties farther apart.

Boliden, which in its latest Annual Report talks about wanting to “highlight the positive role that a responsible mining industry plays in society,” can’t be looking forward to the spectacle either.

What Happened to Negotiation?

Indeed, no sane business wants litigation—especially litigation involving alleged human rights and environmental abuses. That’s why CSR observers often find litigation itself less interesting than picking through the wreckage of failed pre-trial Boliden-minenegotiations to try to figure out what went wrong. The Boliden case is a particularly interesting and mysterious debris field because a number of factors suggest that the conditions for a negotiated settlement were ripe. Continue reading

Under Fire, Chevron CEO Quietly Moves Annual Shareholder Meeting to Remote Town In Texas

Reprinted from The Chevron Pit

Chevron CEO John Watson seems nervous about the Ecuadorian villagers who won a $9.5 billion judgment against his company for dumping toxic waste into the rainforest.

Apparently Watson is so nervous that he and Chevron General Counsel R. Hewitt Pate are making elaborate plans to move the company’s 2014 annual meeting from company headquarters near San Francisco to a rented petroleum museum in Midland, in the hinterlands of west Texas and a five-hour drive from the nearest metropolitan area of Dallas-Ft. Worth.

It is worth noting that Watson and Pate are making these elaborate plans – which will include flying in top management and Board members on a corporate jet — despite the company’s self-proclaimed “victory” in March in a New York civil fraud case against the villagers and their lawyers.  As we recount here, the verdict is nothing more than a Pyrrhic victory resulting from the obvious biases of an activist American judge who tried to overrule Ecuador’s Supreme Court on questions of Ecuadorian law.  We predict the decision will not survive appeal and in any event will either backfire against Chevron in enforcement courts abroad or be ignored.

Why are Watson and Pate are going to such great lengths to find a friendly location? Continue reading

Changing the Culture

The key to deep, lasting social change is changing the intellectual and social culture that serves as a platform for the politics, the norms, the ingrained assumptions and expectations, and certainly the day-to-day exchange of interests and playing of tactics.

In the broader field of U.S. society, conservatives did this in the 1980s with a linked limited government/family values discourse, and liberals did it a generation earlier through the civil rights and anti-war movements.  In the legal field, which both follows and leads broader societal changes, “conservative” legal thinkers (the labels are harder here) changed the culture in the 1990s with a linked strict-constructionist and law-and-economics discourse, but only after “liberals” changed it a generation earlier through critical legal theory and the clinical legal education discourses.

Sometimes these culture-changing developments are easy to follow: key cases, articles, or political or social events.  But far more often they occur under the radar, subtly but (I believe) intentionally masked, and very often using controversial methods and tactics, such as, for those with money and power, lobbying and interest-sharing deals, or for those that don’t, street protests and civil disobedience.  These are only examples: part of what makes the culture-change analysis so fascinating is the amazing variety of methods and tactics that interest and ideology groups employ.

A great illustrative article on how this has been done by Google was published recently in the Washington Post.  Google is a great subject to really explore the difficulties here because of its unique identity — I would submit that the vitality of Google’s halcyon-days promise to not be “evil” is the defining question of the technological/political/legal moment we are witnessing.  What is going on here is a damning indictment, from one perspective, and a celebration of social dynamics, from another perspective.  Food for so much thought. 

Google, once disdainful of lobbying, now a master of Washington influence, Wash Post, Apr. 13, 2014.  Describes how Google has developed a massive lobbying shop, but in particular focuses on how Google orchestrated a series of apparently independent academic symposium on the state of competition in the online search field at the same time as it was facing an FTC investigation on the same and used the symposium to mount a massive de facto lobbying campaign on key congressional and FTC contacts.

The behind-the-scenes machinations demonstrate how Google — once a lobbying weakling — has come to master a new method of operating in modern-day Washington, where spending on traditional lobbying is rivaled by other, less visible forms of influence.

That system includes financing sympathetic research at universities and think tanks, investing in nonprofit advocacy groups across the political spectrum and funding pro-business coalitions cast as public-interest projects.

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The company has also pioneered new and unexpected ways to influence decision-makers, harnessing its vast reach. It has befriended key lawmakers in both parties by offering free training sessions to Capitol Hill staffers and campaign operatives on how to use Google products that can help target voters.

Through a program for charities, Google donates in-kind advertising, customized YouTube channels and Web site analytics to think tanks that are allied with the company’s policy goals.

Google “fellows” — young lawyers, writers and thinkers paid by the company — populate elite think tanks such as the Cato Institute, the Competitive Enterprise Institute and the New America Foundation.

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An early sign of Google’s new Washington attitude came in September 2011, when executives paid a visit to the Heritage Foundation, the stalwart conservative think tank that has long served as an intellectual hub on the right, to attend a weekly lunch for conservative bloggers. . . .

A few weeks after the blogger session, Heritage researcher James L. Gattuso penned a critique of the antitrust investigation into Google, praising the company as “an American success story.”

That winter, Heritage joined the chorus of groups weighing in against the anti-piracy legislation.

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[re GMU] For the past several years, the free-market-oriented law center has received an annual donation from the company, a grant that totaled $350,000 last year, according to the school. . .

Even as Google executives peppered the GMU staff with suggestions of speakers and guests to invite to the event, the company asked the school not to broadcast its involvement.

“It may seem like Google is overwhelming the conference,” [Google’s lawyer] fretted in an e-mail to the center’s administrative coordinator, Jeffrey Smith, after reviewing the confirmed list of attendees a few weeks before the event. She asked Smith to mention “only a few Googlers.”

Smith was reassuring. “We will certainly limit who we announce publicly from Google,” he replied.

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Cato was not always in sync with Google’s policy agenda. In previous years, the think tank’s bloggers and scholars had been sharply critical of the company’s support for government rules limiting the ways providers such as Comcast and Verizon could charge for Internet services.

But, like many institutions in Washington, Cato has since found common ground with Google.

And the think tank has benefited from the company’s investments, receiving $480,000 worth of in-kind “ad words” from Google last year, according to people familiar with the donation.

welcome

Welcome to the new Forum Nobis website.  The site accurately describes the firm and its practice areas, but in many respects is still “in beta” and being re-checked both in terms of technical matters and content.  Please stay in touch and keep apprised of developments via our twitter feed.

Some thoughts on the minutes of the Dec. 2013 “single-stakeholder” (business only) meeting at the UN Forum on Business and Human Rights

An excellent and comprehensive set of minutes is available from the Office of the High Commissioner for Human Rights.  Even though it was an exclusive meeting, the transparency provided by the reporting is admirable and helpful to the process.

The meeting was a “second pillar” meeting, i.e. addressing the obligation on business to “respect” human rights imposed by the “Protect, Respect, and Remedy” framework  of the UN Guiding Principles.

Hence the quantities of baroquely intricate corporate language, such as the first speaker’s discussion of the “period of ‘absorption’ [that] has been taking place whereby leadership companies are working to integrate the UNGPs into management systems and core business processes.”

To be fair, there was discussion of specific examples and practices.  A speaker from Microsoft described two human rights impact assessments his company conducted with respect to beginning and expanding operations in Myanmar and China, respectively.

The minutes note several efforts to think about fresh and/or practical ways to engage businesses that are not yet conceptually invested in the notion of human rights.  For example, expanding from Health, Safety & Environment (HSE) programs, which most companies have, maintain respect for, and which have an obvious overlap with key human rights areas.

Similarly, the participants note that the most progress thus far has been made via sector-specific initiatives: companies in a sector understand their shared challenges with sufficient concreteness to conceive of potential practical steps, and may have sufficient experience working with each other to get collective efforts going in a more reasonable time.  Sector-specific work is by far the most realistic possibility for meaningful results in the near future and should be prioritized. Continue reading