Sunday, June 5, 2011

On the Need for International Investment Rules

The dispute in Ecuador between Chevron and certain "environmental" groups - which I've mentioned a few times previously - continues to provide a perfect example of why international investment rules might actually be quite necessary for a large portion of cross-border investment (as I've repeatedly argued).  As you'll recall, these rules have been highlighted by anti-traders as evidence of the horribleness of free trade agreements and international investment treaties.  In short, these folks claim that the investment disciplines provide evil multinational corporations with scary new powers to subvert domestic law via shady international tribunals and thereby enforce their greedy wills on a powerless populace.  (Insert ominous music here.)

On the other hand, people who, you know, actually practice international investment law often defend these rules by stating that, while certainly not perfect and occasionally producing some distressing outcomes, the treaties act as an absolutely essential check on the abuse of developing countries' less-than-robust local courts and legal systems by unseemly groups (and their lawyers) who are seeking to shakedown multinational corporations for millions billions of dollars.  Thus, without these disciplines, many companies would be far less likely to do business in developing countries that desperately need the capital, expertise and, of course, jobs that such business brings.

And speaking of that abuse, let's get back to the Chevron case and catch up on what's going down in Ecuador, first courtesy of HotAir's Jazz Shaw:
American lawyers have been helping the “environmentalist” groups and the government of Ecuador, currently attempting to pick Chevron’s perceived deep pockets. This continues despite the fact that, “Five US federal courts have found evidence that the Ecuador trial has been compromised by plaintiff’s lawyer’s fraud.”

Steven Donziger, attorney for the plaintiffs, was caught on tape and in court obtained documents providing the following memorable quotes,
“Because at the end of the day, this is all for the courts. This is a bunch of smoke, mirrors and (expletive.) It really is.”

“The only language that I believe this judge [in Ecuador] will understand is one of pressure, intimidation and humiliation.”

“This is Ecuador, OK? You can say whatever you want, and at the end of the day, there’s a thousand people around the courthouse and you’re going to get what you want.”

“… the problem, my friend, is that the effects are potentially devastating in Ecuador. (Apart from destroying the proceedings, all of us, your attorneys, might go to jail.)”

“The business of getting press coverage is part of a legal strategy. The business of plaintiff’s law is to make (expletive) money.”
Lovely, eh?
 Shaw also posts the following video which is just must-watch stuff:

Pretty sketchy, eh?  And here's a little more on what's going on stateside with respect to the Ecuadorian plaintiffs' attorney, Mr. Donziger:
For months, Chevron and its lawyers at Gibson, Dunn & Crutcher have been engaged in an unprecedented effort to obtain discovery in the U.S. courts with the aim of discrediting any potential award against the company in the Lago Agrio environmental contamination case in Ecuador. Now, with the Ecuadorian court poised to deliver a judgment that's expected to be in the tens of billions of dollars, Chevron has produced a 207-page complaint in Manhattan federal district court that pulls together the evidence it has obtained into an assertion of a conspiracy to extort a multibillion-dollar settlement from the oil company.

The civil Racketeer Influenced and Corrupt Organizations Act suit names as defendants (among others) plaintiffs lawyer Steven Donziger; two Ecuadorian plaintiffs lawyers; the 47 plaintiffs who purportedly filed the long-running Lago Agrio action in Ecuador; the nonprofit Amazon Defense Front, and Stratus Consulting, which provided expert scientific services to the plaintiffs. The complaint also identifies as nondefendant coconspirators other law firms that have represented the Ecuadorian plaintiffs--Emery Celli Brinckerhoff & Abady and Patton Boggs--and firms that have provided financing for the Lago Agrio suit, including Kohn Swift & Graf, Motley Rice, and Burford Group.

The allegations in the new suit are familiar to anyone who's been following Gibson Dunn's astonishingly productive 28 U.S.C. section 1782 discovery campaign, in which, as Michael D. Goldhaber has discussed in Global Lawyer posts for the Litigation Daily (here and here), Chevron has prevailed in all nineteen of the discovery motions it has filed against individuals associated with the Ecuadorian plaintiffs. The fruits of Chevron's discovery campaign include hundreds of hours of outtakes from a documentary film about the Lago Agrio litigation, as well as virtually all of Donziger's work product--e-mails, diaries, strategy memos, and more--from the Lago Agrio case.

The new RICO suit claims, among other allegations, that Donziger, with early financing from Kohn Swift, drummed up the Lago Agrio litigation with the goal of reaping hundreds of millions of dollars of legal fees. Chevron asserts that Donziger is an accomplished political operative who established a relationship with the Ecuadorian government in order to further the litigation. The complaint details Donziger's alleged efforts to work with Stratus to produce a ghostwritten report for the purported Ecuadorian court-appointed neutral expert, alleged coconspirator Richard Cabrera. It also contains assertions that Donziger influenced Ecuadorian prosecutors to bring criminal charges against two Chevron lawyers who signed an agreement attesting to the remediation of contamination in the Lago Agrio region; and offers evidence that Donziger and the other conspirators schemed to deceive Congress, the U.S. media, and Chevron shareholders about the merits of the Lago Agrio case.
Updates on these actions are available here and here; needless to say, it doesn't look too good for Donziger, and his clients (former clients?) are looking kinda desperate.

But, look, I have no dog in this fight, and maybe the Ecuadorian plaintiffs here have a real case against Chevron.  I have no idea (although the dispute definitely smells funny).  But if the plaintiffs really do have a case, then isn't that also a good reason to for them to secure a judgment from a reputable international investment tribunal and thus remove all doubt as to the merits of their allegations?  Seems like a no-brainer to me.  On the other hand, if their claims really are as baseless and corrupt as Chevron makes them appear, then why on earth would a major multinational corporation ever want to risk investing in Ecuador ever again if its only legal recourse were that snazzy domestic court featured in the video above?  If it were me, I'd avoid that place like the plague.

So either way, it seems that recourse to a reputable third-party arbiter pursuant to reputable international investment rules would benefit everyone involved.

Except skeevy plaintiffs and their lawyers, of course.

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