Disaster in the amazon: Dodging "boomerang suits" in transnational human rights litigation

California Law Review

Volumn 97, Issue 3, 2009, Pages 857-904

  Kenney, Cortelyou ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 70349568376     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (357)

1. Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534 (S. D. N. Y. 2001), aff d, 303 F.3d 4/0 (2d Cir. 2002).
2. William Langewiesche, Jungle Law, Vanity Fair, May 2007, at 228;
3. Scott Wilson, Rare Class-Action Pits Indians Against U. S. Oil Company, Wash. Post., Oct. 13, 2003, at A18 (calling the case the "trial of the century");
4. Lago Agrio Legal Team, Amazon Def. Coal., Rainforest Catastrophe: Chevron's Fraud and Deceit in Ecuador 4 (2006), available at http://www.texacotoxico.org/docs/PDF%20Files/rainforest-catastrophe.pdf.
5. Complaint, at 3-5, 20, 70, Aguinda v. Texaco, Inc., 850 F. Supp. 282 (S. D. N. Y. 1994);
6. Lago Agrio Legal Team, supra note 2. Raw petroleum comprised only a small fraction of these eighteen billion gallons. Most waste took the form of "produced" or "production" water. See infra note 48.
7. Literally, "an unsuitable court." Black's Law Dictionary 680 (8th ed. 2004).
8. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 100 (2d Cir. 2000). FNC can be used to transfer cases domestically (from a state or federal forum to its counterpart in another jurisdiction). However, for international human rights cases dismissal is generally to the nation or nations where the alleged violations occurred.
9. Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion to Dismiss Based upon Forum Non Conveniens at 3-8, 8 n. 8, Aguinda v. Texaco, Inc., 945 F. Supp. 625 (S. D. N. Y. 1996) (No. 93 Civ. 7527 (JSR)), vacated sub nom., Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998) (alleging, in addition, that "[i]n matters involving the petroleum industry, the Ecuadoran judiciary lacks sufficient independence" because "[t]he Ecuadoran military is still funded exclusively from oil revenues, and those in Ecuador who protest the oil industry's substandard practices face serious reprisals from the military" and that "many of the significant documents are in Texaco's possession in the United States").
10. Aguinda v. Texaco, Inc., 142 F. Supp. 2d 537-38 (S. D. N. Y. 2001), aff d, 303 F.3d 470 (2d Cir. 2002).
11. See Dow Chem. Co. v. Castro Alfaro, 786 S. W.2d 674, 689 (Tex. 1990) (Doggett, J., concurring) ("At present, the tort laws of many third world countries are not yet developed. Industrialization is 'occurring faster than the development of domestic infrastructures necessary to deal with the problems associated with industry."') (citations omitted), superseded by statute, Act of Feb. 23, 1993, ch. 4, 1993 Tex. Sess. Law Serv. 10-12 (Hein) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 71.051 (b) (Vemon 2005)), as recognized in '21' Int'l Holdings, Inc. v. Westinghouse Elec. Corp., 856 S. W.2d 479, 484 (Tex. App. -San Antonio 1993);
12. Judicial Protection of Human Rights: Myth or Reality? (Mark Gibney & Stanislaw Frankowski, eds., 1999) (collecting essays on foreign judicial systems' mixed human rights track records);
13. cf. Julius Jurianto, Forum Non Conveniens: Another Look at Conditional Dismissals, 83 U. Det. Mercy L. Rev. 369, 406 (2006) (discussing how civil law jurisdictions are often prohibited by the doctrine actor sequitur forum rei from hearing suits against nondomiciliaries, including multinational corporations, absent consent);
14. M. Ryan Casey & Barrett Ristroph, Boomerang Litigation: How Convenient is Forum Non Conveniens In Transnational Litigation?, 4 B. Y. U. Int'l L. & Mgmt. Rev. 21, 22 (2007) (addressing jurisdictional "blocking statutes" enacted by several Latin American countries that prevent cases dismissed on an FNC basis from being heard abroad);
15. Rejeev Muttreja, Note, How to Fix the Inconsistent Application of Forum Non Conveniens to Latin American Jurisdiction-And Why Consistency May Not Be Enough, 83 N. Y. U. L. Rev. 1607, 1619-21 (2008) (same).
16. See, e.g., David W. Robertson, Forum Non Conveniens in America and England: "A Rather Fantastic Fiction", 103 L. Q. Rev. 398, 418-20 (1987) (conducting a postal survey of plaintiffs' lawyers whose cases had been dismissed on an FNC basis and demonstrating that the majority decided not to file suit abroad or settled for less than 10% of the claims' estimated value);
17. noting Robertson's results showed "higher costs and lower returns abroad", plaintiffs "earn approximately one dollar per hour... and clearly cannot compete financially with [corporate defendants] in carrying on the litigation."
18. Russell J. Weintraub, International Litigation and Forum Non Conveniens, 29 Tex. Int'l L. J. 321, 335 (1994) (noting Robertson's results showed "higher costs and lower returns abroad"); Dow Chem. Co., 786 S. W.2d at 683 n. 6 (plaintiffs "earn approximately one dollar per hour... [and] clearly cannot compete financially with [corporate defendants] in carrying on the litigation. ").
19. Langewiesche, supra note 2, at 228;
20. Plaintiffs' Complaint Addressed to the President of Superior Court of Justice of Nueva Loja (Lago Agrio) [hereinafter Lago Agrio Complaint], Maria Aguinda Salazar v. ChevronTexaco Corp. (filed May 7, 2003) (on file with author).
21. Ministry of Energy & Mines, Republic of Ecuador, Contract for Implementing of Environmental Remedial Work and Release form [sic] Obligations, Liability and Claims 2 (1995), available at http://www.texaco.com/sitelets/ ecuador/docs/contract.pdf (signed by Dr. Galo Abril Ojeda, Minister of Energy and Mines;
22. Dr. Rodrigo Perez Pallares, Legal Representative of Texaco Petroleum; and Mr. Ricardo Reis Veiga, Vice President of Texaco Petroleum);
23. Judith Kimerling, Rights, Responsibilities, and Realities: Environmental Protection Law in Ecuador's Amazon Oil Fields, 2 Sw. J. L. & Trade Am. 293, 322-33 (1995) [hereinafter Kimerling, Rights, Responsibilities] (providing narrative account of negotiations). The Texaco officials responsible for negotiating this contract have been indicted for their role in the process.
24. See discussion infra note 69.
25. See Republic of Ecuador v. ChevronTexaco Corp. (ROE I), 376 F. Supp. 2d 334, 342 (S. D. N. Y. 2005) (reciting case history).
26. See id.;
27. Republic of Ecuador v. ChevronTexaco Corp. (ROE III), 499 F. Supp. 2d 452, 457 (S. D. N. Y. 2007) (No. 04 Civ. 8378 (LBS)), aff d, No. 07-2868-cv, 296 F. App'x 124 (2d Cir. Oct. 7, 2008), petition for cert, filed, 77. U. S. L. W. 3531 (U. S. Mar. 09, 2009) (No. 08-1123).
28. Email from Steven Donziger, Consultant, Amazon Def. Coal., to author (Jan. 4, 2009) (on file with author). Judge Sand dismissed the AAA from the proceedings as neither a necessary nor proper party under the "well-established legal principle of arbitral immunity." ROE I, 376 F. Supp. 2d. at 343.
29. After removal, the Republic filed an amended complaint that alleged several other bases for relief. Counsel represented that these were contingent upon the failure of the stay petition; however, because the amended filing did not state so on its face, Judge Sand found it waived sovereign immunity. ROE I, 376 F. Supp. 2d. at 344, 372-75 ("To the extent that Plaintiffs have freely chosen to avail themselves of this Court's jurisdiction with regard to matters other than the (possibly meritless) petition for arbitration, and have thereby created jurisdiction over counterclaims, they have only themselves to blame."). But see Plaintiffs' Supplemental Memorandum of Law in Support of Their Motion (1) to Dismiss Defendants' Counterclaims or, Alternatively, (2) to Renew Their Outstanding Motion for Summary Judgment Dismissing Defendants' Counterclaims at 1 [hereinafter Plaintiffs' ROE III Brief], ROE III, 499 F. Supp. 2d 452 (No. 04 Civ. 8378 (LBS)) (arguing the claims that waived sovereign immunity were "conditional" and could be "self-extinguished by their own terms"). It remains to be seen whether these procedural mishaps diminish the probability similar boomerang suits will arise. Likely, they do not. Because contracts between governmental entities and foreign corporations commonly include waivers of sovereign immunity and forum selection clauses mandating dispute resolution in the United States (or the country where the multinational business in question is headquartered), there is a significant risk that U. S. corporations can game the system, a risk amplified under conditions of unequal bargaining power.
30. Cf. Roger P. Alford, Arbitrating Human Rights, 83 Notre Dame L. Rev. 505, 518-20, 527-38 (2008) (discussing contract formation between foreign sovereigns and multinational corporations and advocating corporations use their power to induce governmental compliance with human rights regimes). Further, because foreigners often lack familiarity with the U. S. court system, there is a significant home-team advantage, given the myriad technical, and highly idiosyncratic, filing rules for different districts.
31. See Casey & Ristroph, supra note 8, at 37 (discussing an example where a court in the Northern District of California refused to enforce a Nicaraguan judgment because the "plaintiffs' counsel failed to identify and properly serve the particular Dole corporate entity involved"). Finally, the drastic consequences of boomerang litigation merit, at the very least, prophylactic measures to diminish their likelihood of occurrence.
32. See infra Parts II, III and accompanying notes for further discussion.
33. ROE III, 499 F. Supp. 2d at 452, 454.
34. Id.
35. But see infra Part II (regarding whether the Republic and the Lago Agrio plaintiffs were "in privity").
36. Judith Kimerling, Transnational Operations, Bi-national Injustice: ChevronTexaco and Indigenous Huaorani and Kichwa in the Amazon Rainforest in Ecuador, 31 Am. Indian L. Rev. 445 447-48 (2007) [hereinafter Kimerling, Transnational Operations] ("Texaco's discovery of commercially valuable oil sparked an oil rush, and petroleum quickly came to dominate Ecuador's economy.... Although relations between Ecuador and Texaco and other oil companies have not been static, at the core of those relationships lies an enduring political reality. Since the oil boom began, successive governments have linked national development plans and economic policy almost exclusively with petroleum policy, and the health of the industry has become a central concern for the State.... As a result, it is vulnerable to international pressures, including demands of foreign companies."). Ironically, Texaco, now ChevronTexaco, claims to be the victim of Ecuador's process defects, accusing President Rafael Correa's administration of exerting undue influence in favor of the plaintiffs in the Lago Agrio trial.
37. See Memorandum of Law in Support of Motion of Chevron Corp. & Texaco Petroleum Co. to Supplement the Record at 5, ROE III, 499 F. Supp. 2d 452 (No. 04 Civ. 8373 (LBS)) (attacking the President for arguing Texaco's actions constituted "crimes against humanity" executed by "corrupt people and traitors" who were "capable of selling their souls");
38. see also infra Parts II, IV.
39. Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534, 537 (S. D. N. Y. 2001), aff d, 303 F.3d 470 (2d Cir. 2002).
40. Much has been written on the former, including a veritable cottage industry of academic commentary devoted to examining the ramifications of the Ecuadorian oil industry on international environmental law. See, e.g., Kimerling, Rights, Responsibilities, supra note 11;
41. Judith Kimerling, International Standards in Ecuador's Amazon Oil Fields: The Privatization of Environmental Law, 26 Colum. J. Envtl. L. 289 (2001);
42. Maxi Lyons, A Case Study in Multinational Corporate Accountability: Ecuador's Indigenous Peoples Struggle for Redress, 32 Denv. J. Int'l L. & Pol'y 701 (2004). However, academics have paid scant attention to the latter. Indeed, as of this writing, ROE had been cited by only four law review articles, once in a footnote.
43. See Judith Kimerling, Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco, and Aguinda v. Texaco, 38 N. Y. U. J. Int'l L. & Pol. 413, 627 n. 571 (2006) [hereinafter Kimerling, Indigenous Peoples];
44. Kimerling, Transnational Operations, supra note 20, at 494 (tracking the related issue of a motion to intervene in ROE by "118 representatives [other than the Aguinda plaintiffs] from twenty-eight Huaorani and Lower Napo Kichwa communities" affected by the dispute over the remediation agreement);
45. Casey & Ristroph, supra note 8, at 40-45 (critiquing the phenomenon of boomerang litigation, and proposing a collateral estoppels as a solution);
46. Alford, supra note 15, at 525-26 (arguing ROE "illustrates the direct connection between domestic litigation against corporations alleging international law violations and arbitration proceedings between the corporation and the sovereign over the responsibility to pay for any adverse judgment").
47. See Luis Enrique Cuervo, The Alien Tort Statute, Corporate Accountability, and the New Lex Petrolea, 19 Tul. Envtl L. J. 151, 163 n. 44 (2006) (chronicling increase in Alien Tort Claims Act suits brought against corporations);
48. Jeffrey E. Baldwin, Note, International Human Rights Plaintiffs and the Doctrine of Forum Non Conveniens, 40 Cornell Int'l L. J. 749, 750 n. 1 (2007) (enumerating advantages for human rights litigants in U. S. courts, including " (1) the wide availability of public interest litigators, (2) contingency fees, (3) punitive damages, (4) the availability of default judgments, (5) liberal pretrial discovery, and (6) the fact that the American legal system does not require the losing party to pay the winner's legal fees");
49. Alford, supra note 15, at 509, 511, 516 (noting that "while the percentage of successful claims is quite small, the opportunity [alone]... has led to a cottage industry... in the United States" and that "[a]s human rights claims against sovereigns generally have proved unavailing, the issue of corporate liability under international law has become increasingly important... over [75%] of the claims filed under the ATS and/or Torture Victim Protection Act (TVPA) involve corporate defendants... [including] household names, such as Coca-Cola, Nestle, Pfizer, Daimler-Chrysler, Del Monte, Dow, Levi Strauss, Target, and Mitsubishi").
50. See Baldwin, supra note 23, at 757-66
51. Kathryn Lee Boyd, The Inconvenience of Victims: Abolishing Forum Non Conveniens in U. S. Human Rights Litigation, 39 Va. J. Int'l L. 41, 71-72 (1998);
52. see also Proyectos Orchimex de Costa Rica, S. A. v. E. I. DuPont de Nemours & Co., 896 F. Supp. 1197, 1201 (M. D. Fla. 1995) (protesting that human rights cases "are complex and highly contested... often featuring lengthy trials.... The burden, delays and inconvenience to the other civil and criminal litigants... would be enormous. This court's docket would be thrown into chaos.").
53. See Emily J. Derr, Striking a Better Public-Private Balance in Forum Non Conveniens, 93 Cornell L. Rev. 819, 820 (2008) (quoting Malay. Int'l Shipping Corp. v. Sinochem Int'l Co., 436 F.3d 349, 364 (3d Cir. 2006), rev'd, 549 U. S. 422 (2007)). For human rights suits, federal courts have a variety of other means of disposal. First, courts can refuse to hold corporations accountable for Alien Tort Statute claims, an avenue left open by the Supreme Court's ruling in Sosa v. Alvarez-Machain that has produced inconsistencies in lower courts, but finds support in the D. C. and Ninth Circuits. 542 U. S. 692 (2004);
54. Alford, supra note 15, at 514-18, 515 n. 44 (collecting cases). Second, courts can dismiss suits on grounds of comity, as Judge Rakoff originally attempted to do. See Aguinda v. Texaco, Inc., 945 F. Supp. 625 (S. D. N. Y. 1996), vacated sub nom., Jota v. Texaco, Inc., 157 F. 3d 153 (2d Cir. 1998);
55. see also Sequihua v. Texaco, Inc., 847 F. Supp. 61, 63 (S. D. Tex. 1994). Third, courts can use foreign subsidiaries to insulate principles from liability (a strategy that effectively renders suits meaningless, since subsidiaries usually have insufficient assets to satisfy judgments rendered in human rights and environmental cases, even if they can be joined as parties to the litigation).
56. See Meredith Dearborn, Enterprise Liability: Reviewing and Revitalizing Liability for Corporate Groups, 97 Calif. L. Rev. 195, 195- 99 (2009);
57. Jurianto, supra note 8, at 405;
58. cf Phillip I. Blumberg, Asserting Human Rights Against Multinational Corporations Under United States Law: Conceptual and Procedural Problems, 50 Am. J. Comp. L. 493, 496-501, 527-28 (2002) (discussing how joinder of foreign subsidiaries may result in loss of subject matter jurisdiction). Finally, courts can use conflict of law principles to determine that foreign law governs, a determination that can void subject matter jurisdiction, not to mention the underlying cause of action.
59. See, e.g., Adamu v. Pfizer, Inc., 399 F. Supp. 2d 495, 502-03 (S. D. N. Y. 2005) (holding tiiat because Nigerian law applied, claims arising under Connecticut statutes were invalid), rev'd sub nom., Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009).
60. Walter W. Heiser, Forum Non Conveniens and Ret al.iatory Legislation: The Impact on the Available Alternative Forum Inquiry and on the Desirability of Forum Non Conveniens as a Defense Tactic, 56 U. Kan. L. Rev. 609, 609 & n. 2, 619 nn.60-63 (2008) (observing, as an empirical matter, that FNC motions are not only filed, but also granted, in nearly every case against foreign plaintiffs in U. S. courts);
61. Baldwin, supra note 23, at 757;
62. Derr, supra note 25, at 820;
63. vsee also Boyd, supra note 24, at 46-48 (noting strong incentives for corporate defendants to pursue FNC dismissals and acknowledging the room that deference affords U. S. courts to avoid "politically-charged international issues"). Crucially, this degree of deference means appellate courts review under a "clear abuse of discretion" standard, and reversals are rarely granted, in contrast to some of the tools enumerated in supra note 25.
64. See Jurianto, supra note 8, at 401;
65. Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224, 1232 (2d Cir. 1996). For a critique of the wide berth of discretion this doctrine accords district court judges see David W. Robertson, The Federal Doctrine of Forum Non Conveniens: "An Object Lesson in Uncontrolled Discretion, " 29 Tex. Int'l L. J. 353, 360 (1994).
66. See Tim A. Thomas, Validity and Propriety of Conditions Imposed upon Proceeding in Foreign Forum by Federal Court in Dismissing Action Under Forum Non Conveniens, 89 A. L. R. Fed. 238, § 4[a]-[e] (2009) (collecting cases);
67. Jurianto, supra note 8, at 399-401 n. 301 (same);
68. Heiser, supra note 26, at 614-15 nn. 37-38.
69. See supra notes 8, 9 and accompanying text.
70. See Casey & Ristroph, supra note 8, at 22 n. 3, 38-40 (coining the term "boomerang litigation" to refer to "case[s] that return[] to a forum from which [they were] previously dismissed" and placing ROE in this category despite differences in the parties and the addition and subtraction of issues from the original dispute). I explicitly bracket the question of "blocking statutes" designed to return suits dismissed on an FNC basis to the United States. I deal only with the question of end-runs around the judicial forum corporate defendants once designated as more convenient. For other articles detailing the ramifications of "ret al.iatory" or "blocking" statutes and FNC
71. see Heiser, supra note 26;
72. Muttreja, supra note 8.
73. While few examples of boomerang suits exist outside the blocking context, scholars and practitioners of international civil procedure agree that they are highly likely to materialize in the near-to-medium future. See Alford, supra note 15, at 526 (ROE epitomizes a wave of coming "who pays" arbitration);
74. Heiser, supra note 26, at 633-34 (boomerang suits likely because corporate assets are located in the United States);
75. Casey & Ristroph, supra note 8, at 43 (boomerang suits likely given procedural and substantive legal reforms abroad). The primary reason this litigation has not yet presented is that the aforementioned reforms are relatively recent. Because human rights litigation can take years if not decades to conclude, plaintiffs seeking relief have not yet had the opportunity to enforce judgments handed down abroad. These judgments are likely to be challenged by defendants on public policy or due process grounds under the Uniform Foreign Money-Judgment Recognition Act (UFMJRA) or equivalent state statute.
76. See Heiser, supra note 26, at 635-57 (discussing grounds for nonenforcement of judgments post-judicial reforms in Costa Rica and the Commonwealth of Dominica). For further discussion of due process issues see infra Part IV.
77. See infra Part IV for a detailed treatment of these reforms. See also Dearborn, supra note 25, at 227-29 (tracing the story of the Bhopal litigation and the subsequent reaction of the Indian Supreme Court);
78. Casey & Ristroph, supra note 8, at 21, 29, 35-36 (analyzing, inter alia, Nicaragua's Ley 364, which requires foreign defendants "to post a $100, 000 bond to pay for court costs and to guarantee the payment of a final judgment" at the initiation of a suit and within ninety days of service to "deposit an additional $20 million");
79. Heiser, supra note 26, at 610-11 (discussing tort liability and damage reforms that effectively allow foreign judiciaries to apply U. S. law to cases dismissed on the basis of FNC).
80. FNC poses obvious problems for plaintiffs seeking to hold U. S.-based corporations accountable for human rights abuses committed abroad. As one commentator scathingly put it, the doctrine creates incentives for companies to operate in foreign countries "specifically selected because of lower wages, lower standards of care, and potential plaintiffs' limited access to courts, the political process, and little hope of any realistic and meaningful relief." Paul Santoyo, Bananas of Wrath: How Nicaragua May Have Dealt Forum Non Conveniens a Fatal Blow Removing the Doctrine as an Obstacle to Achieving Corporate Accountability, 27 Hous. J. Int'l L. 703, 705 (2005). Further, it runs directly counter to the concept of cosmopolitanism, which posits that problems affecting one nation affect the global community at large.
81. See, e.g., Dow Chem. Co. v. Castro Alfaro, 786 S. W.2d 674, 689 (Tex. 1990) (Doggett, J., concurring) (arguing "[t]he parochial perspective embodied in the doctrine of forum non conveniens enables corporations to evade legal control merely because they are transnational. This perspective ignores the reality that actions of our corporations affecting those abroad will also affect Texans."), superseded by statute, Act of Feb. 23, 1993, ch. 4, 1993 Tex. Sess. Law Serv. 10-12 (Hein) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 71.051 (b) (Vemon 2005)), as recognized in '21' Int'l Holdings, Inc. v. Westinghouse Elec. Corp., 856 S. W.2d 479, 484 (Tex. App. -San Antonio 1993). Nevertheless, deeming foreign judiciaries "inadequate, " as many proponents of human rights have suggested, can prove unsustainable and counterproductive. For example, courts have refused to deem Sierra Leone-a country long plagued by civil war-incapable of entertaining cases. When viewed in the context of capacity-building measures undertaken by the U. N.'s hybrid war crimes tribunal, such rulings support the Westphalian aspiration of equality for all sovereigns. For excellent treatment of these difficult and complex questions see Boyd, supra note 24;
82. Hihny Ismail, Forum Non Conveniens, United States Multinational Corporations, and Personal Injuries in the Third World: Your Place or Mine?, 11 B. C. Third World L. J. 249 (1991);
83. Ugo Mattei & Jeffrey Lena, U. S. Jurisdiction Over Conflicts Arising Outside of the United States: Some Hegemonic Implications, 24 Hastings Int'l & Comp. L. Rev. 381, 381-82 (2001).
84. See Kimerling, Indigenous Peoples, supra note 22, at 416-17 (claiming the application of FNC to the Aguinda proceedings was "colored by a series of detailed but questionable factual assumptions, including erroneous and unsupported findings about the history of litigation in Ecuador's courts" and failed to take into "account a number of factors that favored the plaintiffs' choice of a U. S. forum").
85. See Derr, supra note 25, at 837 ("Anyone with only a basic understanding of forum non conveniens would likely be surprised to learn that, despite complying with all venue and jurisdictional requirements, and in the absence of any motion by, or inconvenience to, a defendant party, a court may dismiss a plaintiffs case on [this] basis...") This principle will be discussed in greater detail infra Parts III, IV.
86. 13 U. L. A. 43 (2002). The UFMJRA provides a mechanism for enforcing judgments rendered abroad. Generally, judgments are enforced unless they violate public policy or do not comply with minimum standards of due process (such as notice and a hearing). For a detailed discussion of the UFMJRA, see Heiser, supra note 26, at 635-57.
87. Such clauses are common. See Thomas, supra note 27, at § 4[d] (collecting cases). Defendants, of course, should be permitted to exhaust the appeals process in the designated jurisdiction. Similarly, they need not be required to abide by judgments that do not comply with minimum standards of due process.
88. See Banco De Seguros Del Estado v. J. P. Morgan Chase & Co., 500 F. Supp. 2d 251, 264 (S. D. N. Y. 2007) ("Any denial by [foreign] courts of due process can be raised... as a defense to a plaintiffs' later attempt to enforce a resulting judgment against [a] [defendant] in [the United States].... [S]peculation about another country's due process requirements is not a proper consideration for a district court.") (quoting In re Union Carbide Corp. Gas Plant Disaster, 809 F.2d 195, 205 (2d Cir. 1984)).
89. See infra Part IV (discussing problems posed by drafting dismissal orders).
90. Many, if not most, human rights fact patterns implicate multiple plaintiffs. The importance of protecting third-party plaintiffs will be discussed infra Parts II, IV.
91. Another negative consequence of boomerang suits is the incentive to enforce decisions in a third country. Knowing that their ability to take a decision back to the United States has been undercut, plaintiffs may very well try their luck elsewhere. From the perspective of judicial economy, this makes little sense. Additionally, it may diminish the credibility of the U. S. legal system on an international scale. Future scholars may wish to consider broader solutions such as setting up international treaties modeled on the Brussels Convention to standardize the enforcement of foreign judgments, or creating an international civil court. See Louise Ellen Teitz, Both Sides of the Coin: A Decade of Parallel Proceedings and Enforcement of Foreign Judgments in Transnational Litigation, 10 Roger Williams U. L. Rev. 1, 48 (2004) (describing the Brussels Convention's "first in time" approach to parallel proceedings).
92. See generally Casey & Ristroph, supra note 8 (proposing the application of collateral estoppel to boomerang cases challenging the enforceability of foreign rulings);
93. Heiser, supra note 26, at 661 (same);
94. see also E. E. Daschbach, Where There's a Will, There's a Way: The Cause for a Cure and Remedial Prescriptions for Forum Non Conveniens as Applied in Latin American Plaintiffs' Actions Against U. S. Multinationals, 13 Law & Bus. Rev. Am. 11 (2007) (advocating increased deference to plaintiffs' choice of forum or elimination of the FNC doctrine entirely); Derr, supra note 25, at 826 (advocating discretionary consideration of "problematic public interest factors");
95. cf. Note, Cross-Jurisdictional Forum Non Conveniens Preclusion, 121 Harv. L. Rev. 2178, 2178 (2008) (addressing the analogous problem of "a plaintiff whose suit has been dismissed on forum non conveniens grounds in one U. S. jurisdiction fil[ing] suit in another U. S. jurisdiction in the hope of obtaining a different result" and arguing that principles of finality and repose suggest the second court "allow those legal and factual differences to counteract preclusion only to the extent that new legal arguments or new evidence would justify relitigation of the issue in the jurisdiction where it was originally decided").
96. Cf. Casey & Ristroph, supra note 8, at 30 (discussing the related problem of blocking statutes yet to receive Supreme Court attention).
97. But see Dow Chem. Co. v. Castro Alfaro, 786 S. W.2d 679, 688 n. 11 (Tex. 1990) (Doggett, J., concurring) (arguing predictions of "dire consequences... [in a world] without forum non conveniens... [cannot] be supported. The doctrine has been developing for over [one hundred] years, yet [it]... 'was at best incipient among the states' until 1947... [and] ten states in the United States have not adopted forum non conveniens"), superseded by statute, Act of Feb. 23, 1993, ch. 4, 1993 Tex. Sess. Law Serv. 10-12 (Hein) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 71.051 (b) (Vemon 2005)), as recognized in '21' Int'l Holdings, Inc. v. Westinghouse Elec. Corp., 856 S. W.2d 479, 484 (Tex. App. -San Antonio 1993). However, the reaction to Dow-which abolished FNC in Texas over the vigorous dissent of four justices-was swift. The state legislature codified, and embellished, the typical common law test.
98. Some courts have ruled a party seeking FNC dismissal cannot subsequently assert the desired forum is inadequate. See PLM Int'l., Inc. v. Nath, No. C 98-01912 SC, 1998 WL 514045 (N. D. Cal. Aug. 17, 1998);
99. Weisel Partners LLC v. BNP Paribas, No. C 07-6198 MHP, 2008 WL 3977887 (N. D. Cal. Aug. 26, 2008). Others cases, however, suggest a substantial degree of wiggle room for defendants.
100. *1 (S. D. N. Y. Dec. 27, 2001) (FNC dismissal must be based on "the world as it then exists, not as it may have existed months earlier").
101. Cf. Heiser, supra note 26, at 660, 661 n. 279 (discussing diminished incentives to file an FNC motion for cases involving the Dominican Republic after the passage of the Transnational Act, and citing a California state court matter where, because of this legislation, defendants opted not to move for dismissal). Of course, defendants might appeal such court-imposed stipulations. A clever litigator seeking to avoid a judgment against her client could wait until after litigation began in the foreign forum, gauging her chances there before determining whether to challenge the stipulations. Such behavior may cross the line from zealous advocacy to unethical, and legally actionable, representation. Further, the success rate on appeal is quite low; hence, it may be more economically efficient for the corporation to comply and play the role of the responsible global citizen rather than engage in demonstrably futile machinations. Similarly, a corporation might contest what "issues" are before a foreign court. However, assuming dismissal orders encompass counterclaims, crossclaims, and issues arising from the same "case and controversy" as the underlying dispute, there should be ample buffer room to discourage illegal behavior and to adequately protect victims of human rights abuses. See infra Part IV (unpacking drafting and enforcement of FNC stipulations).
102. Heiser, supra note 26, at 662 (discussing enhanced settlement value for claims dismissed to countries that have undergone judicial reforms).
103. Cf. Alford, supra note 15, at 527-29 (discussing corporations as least cost avoiders in situations of joint liability). The economic benefits associated with ex ante FNC stipulations may, of course, accrue through other means, including some of the alternatives discussed supra note 38. Nevertheless, because of ambiguity problems, they are less likely to function effectively; that is to say, if corporations reasonably believe they will not be held accountable for their behavior, there is little incentive, short of public relations, to compel them to compensate those whom their policies adversely affect.
104. Cf. Casey & Ristroph, supra note 8 (advocating application of collateral estoppel once judgments have been rendered abroad). It is theoretically possible to apply estoppel proper (that is, minus the collateral aspect) to pendent cases, such as ROE. This option was strongly advocated by the Republic after Judge Sand granted the stay of arbitration.
105. Texaco's operations formed part of a consortium of oil companies that lasted until 1992. Aguinda v. Texaco, Inc., 303 F.3d 470, 473 (2d Cir. 2002). From 1964 to 1974, TexPet, a subsidiary of Texaco, shared a 50% interest with Gulf Oil Company. Id. In 1974, PetroEcuador, Ecuador's state-owned oil company, joined the group with a quarter interest, with the remaining shares split between Gulf and TexPet. Id. In 1977, PetroEcuador bought out Gulf and assumed a 62.5% stake in the venture, with the remaining 37.5% remaining in the hands of TexPet. Kimerling, Indigenous Peoples, supra note 22, at 420. At all times during this interval, TexPet served as the Consortium's Operator. Id. In 1992, a subsidiary of PetroEcuador assumed this role. Aguinda, 303 F.3d at 473.
106. Amazon Def. Coal., Chevron's Dirty Business in Ecuador: 13 Examples that Expose a Corporate Cover-Up 2 (2006), http://www.texacotoxico.org/docs/ PDF%20Files/Myths%20QA%2020SEP06.pdf.
107. Lago Agrio Legal Team, supra note 2, at 4 n. 8 ("Chevron had admitted to discharging roughly [eighteen and a half] billion gallons of toxic 'water of formation' in Ecuador. Approximately 2% of water of formation is pure crude");
108. see also Kimerling, Indigenous Peoples, supra note 22, at 452 ("Produced water is a noxious brew of crude oil, formation water, and chemicals that have been injected down a well or used in the separation process.... Because of this, most produced water in U. S. oil fields is re-injected underground.") (footnotes omitted).
109. Lago Agrio Legal Team, supra note 2, at 4, 16 nn. 8-11.
110. Id. at 4 n. 11.
111. Id. at 4 nn. 13-15 (collecting numerous epidemiological studies);
112. see also Amazon Def. Coal., supra note 47;
113. Amazon Watch, Chevron's "Rainforest Chernobyl" in Ecuador (2005), http://www.adventureecology.com/ecuador/chevron. pdf.
114. Aaron Page, Amazon Defense Coalition, Genocide in the Rainforest: Legal Analysis: The Environmental and Cultural Destruction of Chevron in Ecuador as Acts of Genocide and Crimes Against Humanity Prohibited Under International Criminal Law (2006), http://www.texacotoxico.org/eng/node/58.
115. Lago Agrio Complaint, supra note 10, at 13.
116. See Lago Agrio Legal Team, supra note 2, at 4 n. 16 (explaining that Texaco's drilling techniques were outlawed in the oil-friendly state of Texas as early as 1939 and that they violated Ecuador's Constitution, the Ley de Gestion Ambiental, the Ley de Hidrocarburos, and the Cödigo de Salud);
117. Kimerling, Indigenous Peoples, supra note 22, at 433-37 ("Texaco did not instruct its Ecuadorian personnel about environmental precautions or monitoring, and oil field workers-who had been trained by Texaco-were so unaware of the hazards of crude oil during the 1970s and 1980s that they applied it to their heads to prevent balding. They sat in the sun, or covered their hair with plastic caps overnight. To remove the crude, they washed their hair (and hands) with diesel. Similarly, many workers took jars of crude to parents suffering from arthritis.").
118. Eyal Press, Texaco on Trial, Nation, May 13, 1999, http://www.thenation. com/doc/19990531/press.
119. Lago Agrio Legal Team, supra note 2, at4.
120. Id. at 3-4;
121. Richard Stalin Cabrera Vega, Technical Summary Report 6 (2008), available at http://www.texacotoxico.org/docs/ Cabrera%20Summary%20Report%20English%20final[l].pdf;
122. Chevron $27 Billion Liability in Ecuador's Amazon Confirmed by Team of Independent Scientists Amazon Def. Coal., Dec. 1, 2008, http://www.texacotoxico.org/eng/node/185. If the plaintiffs are victorious, this would be the largest reported judgment in the history of environmental litigation in the United States. Cf Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008) (reducing punitive, damages to victims of Exxon Valdez spill from $2.5 billion to $500 million);
123. William H. Rodgers et al., The Exxon Valdez Reopener: Natural Resources Damage Settlements and Roads Not Taken, 22 Alaska L. Rev. 135, 136 (2005).
124. See Complaint, Aguinda v. Texaco, Inc., 850 F. Supp. 282 (S. D. N. Y. 1994).
125. Id. at 3-4 (alleging "[a] substantial part of the tortious acts and omissions giving rise to this Complaint took place in this judicial district. The policies, procedures and decisions relating to oil exploration and drilling in Ecuador were set and made in New York.").
126. *1 (S. D. N. Y. Apr. 11, 1994).
127. Id. (limiting discovery to " (a) events relating to the harm alleged by plaintiffs occurring in the United States... and (b) events occurring outside the United States to the extent the information can be furnished or secured voluntarily or through directives to parties in the United States to secure the information").
128. *2 ("Disputes over class membership, determination of individualized or common damages, and the need for large amounts of testimony with interpreters, perhaps often in local dialects, would make effective adjudication in New York problematic at best");
129. see also Piper Aircraft Co. v. Reyno, 454 U. S. 235, 255-57 (1981);
130. Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 508 (1947).
131. Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534, 538 (S. D. N. Y. 2001), aff d, 303 F.3d 470 (2d Cir. 2002).
132. At the time, neither PetroEcuador nor the Republic of Ecuador had waived sovereign immunity (though the Republic would later file a petition to intervene on behalf of Aguinda plaintiffs). See Jota v. Texaco, 157 F. 3d 153, 157-58 (1998). Judge Rakoff argued that, as a result, the Foreign Sovereign Immunities Act (FSIA) voided his jurisdiction over both parties. Aguinda v. Texaco, Inc., 945 F. Supp. 625, 628 (S. D. N. Y. 1996), vacated sub nom., Jota v. Texaco, Inc., 157 F. 3d 153 (2d Cir. 1998);
133. see also Pub. L. No. 94-583, 90 Stat. 2891 (1976) (codified in scattered sections of 28 U. S. C.). This conclusion is suspect. Jota points out that the plaintiffs' claims for equitable relief would still have furnished a basis for jurisdiction. 157 F. 3d at 161-62. Even were that not true, the plaintiffs also could have sued PetroEcuador and the Republic tor monetary damages in their commercial, rather than governmental, capacities since the petroleum concession was originally a joint venture with the private sector and was operated for profit, analogous to a state-run casino or lottery. Under FSIA, the commercial activity in question must also have a "direct effect" on the United States. But, such a standard is fairly lax.
134. See Republic of Argentina v. Weltover, 504 U. S. 607 (1992). The doctrine of sovereign immunity can be considered the flip side of parens patriae, discussed infra Parts II, III.
135. Aguinda v. Texaco, Inc., 945 F. Supp. 625, 628 (S. D. N. Y. 1996), vacated sub nom., Jota v. Texaco, Inc., 157 F. 3d-153 (2d Cir. 1998);
136. see also Sequihua v. Texaco, Inc., 847 F. Supp. 61, 63 (S. D. Tex. 1994).
137. Jota, 157 F. 3d at 159.
138. Aguinda, 142 F. Supp. 2d at 537, 550 (slamming the plaintiffs for coming up "bone dry" after having "deposed numerous Texaco witnesses and reviewed tens of thousands of Texaco documents in an effort to establish a meaningful nexus between the United States and the decisions and practices here complained of). The veracity of this claim has been hotly disputed.
139. See, e.g., Kimerling, Indigenous Peoples, supra note 22, at 605 ("[T]here is no question that many evidentiary roads lead to activities in Coral Gables, Houston, and New York.").
140. Aguinda v. Texaco, Inc., 303 F.3d 470, 478-79 (2d Cir. 2002).
141. Reis Veiga's position has been criticized as a conflict of interest that violates American Bar Association rules and he has been criminally indicted for conspiracy to falsify results of Texaco's remediation. Amazon Defense Coalition: Criminal Indictment of Chevron Lawyer's in Ecuador Based on Wide Body of Scientific Evidence, Energy Bus. J., Oct. 3, 2008, at 22 [hereinafter Amazon Defense Coalition].
142. Lago Agrio Legal Team, supra note 2, at 6. No party ever officially disclosed a cleanup price, but the oil company estimates it spent approximately this sum of money. Kimerling, Indigenous Peoples, supra note 22, at 494.
143. See Kimerling, Indigenous Peoples, supra note 22, at 508-13, 493-94.
144. Id. at 496 (noting the lack of "mechanism[s] for independent oversight of remedial activities, long term monitoring, public comment, or transparency in the approval process").
145. Supra Note 10
146. Lago Agrio Complaint, supra note 10. But see Kimerling, Transnational Operations, supra note 20, at 488 (arguing NGOs managing litigation and North American plaintiffs' lawyers unjustly excluded certain groups-especially the Kichwa and Huaorani communities of Makarik Nihua-from the proceedings and tracking the development of a parallel case filed in a different region of Ecuador).
147. George Raine, The Chevron-Texaco Merger: An Oil Giant Emergen, S. F. Chron., Oct. 10, 2001, at D1.
148. ROE III, 499 F. Supp. 2d 452, 457 (S. D. N. Y. 2007) (No. 04 Civ. 8378 (LBS)), aff d. No. 07-2868-cv, 2008 WL 4507422 (2d Cir. Oct. 7, 2008).
149. Kimerling, Indigenous Peoples, supra note 22, at 496.
150. See supra note 15.
151. Kimerling, Transnational Operations, supra note 20, at 494;
152. see also Memorandum of Law in Support of Plaintiffs' Motion for Summary Judgment and Plaintiffs' Stay of Arbitration Proceedings at 63-66;
153. Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment On Their Counterclaims at 15-16, ROE III, 499 F. Supp. 2d 452 (No. 04 Civ. 8373 (LBS)).
154. See Memorandum of Law in Support of Motion of Chevron Corp. & Texaco Petroleum Co. for Summary Judgment upon Their Counterclaims at 3, ROE III, 499 F. Supp. 2d 452 (No. 04 Civ. 8373 (LBS)).
155. Id.
156. ROE II, 426 F. Supp. 2d 159, 162 (S. D. N. Y. 2006);
157. ROE I, 376 F. Supp. 2d 334 (S. D. N. Y. 2005);
158. see also Plaintiffs' ROE III Brief at 9 n. 7, supra note 15.
159. ROE III, 499 F. Supp. 2d at 460-69. The portion of Judge Sand's ruling dealing with this agreement is beyond the scope of this Comment, as it was never at issue in the initial Aguinda proceedings, nor disputed in Lago Agrio. Briefly, Judge Sand found that Chevron and its subsidiaries never had a reasonable basis for believing a contract existed with PetroEcuador, Ecuador's state oil company and a member of the consortium run by Texaco; this was proven by multiple internal communications of company executives and the absence of formalities that must be completed for an agreement to be valid under Ecuadorian contract law.
160. Republic of Ecuador v. ChevronTexaco Corp., No. 07-2868-cv, 2008 WL 4507422 (2d Cir. Oct. 7, 2008).
161. Langewiesche, supra note 2, at 229, 232 (quoting Judge Yánez Ruiz). In Lago Agrio, trial judges preside over a given matter for a maximum of two years. Judge Juan Nuñez recently replaced Judge Yánez Ruiz.
162. Id. at 232 (referring to financial incentives as the "cold logic" of delay). But see infra note 97.
163. Interview with Steven Donziger, Consultant, Amazon Def. Coal., in Quito, Ecuador (Jul. 26, 2007);
164. Langewiesche, supra note 2, at 232 (noting that the plaintiffs' originally requested 122 sites, a number that was later reduced to fifty-eight).
165. Cabrera, supra note 57, at 4, 6 (reporting toxin levels "above background levels, above environmental standards, and even above standards in the remediation contract");
166. see also Michael Isikoff, A $16 Billion Problem: Chevron Hires Lobbyists to Squeeze Ecuador in Toxic- Dumping Case. What an Obama Win Could Mean, Newsweek, Jul. 26, 2008, http://www.newsweek.com/id/149090.
167. See Langewiesche, supra note 2, at 232.
168. The settlement value of most cases diminishes over time. This premise might not hold true for many large-scale human rights lawsuits, however, which tend to attract media attention and inflame public outrage the longer they last. The Lago Agrio proceedings are illustrative of this point. Celebrities such as Daryl Hannah have visited the site, staging photo-ops that dominated the international news cycle, several documentaries have been made about the case, and the Lago Agrio plaintiffs' representative recently won the Goldman Environmental Award, the environmental equivalent of a Nobel Prize. See Dolores Ochoa, Hannah Visits Polluted Site in Ecuador, Wash. Post, June 5, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/06/05/AR2007060500665. html;
169. Reyhan Harmanci, 'Justicia Now!': Ecuadorans Sue Chevron, S. F. Chron., Apr. 17, 2008, http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/04/17/ NSH8103GO4.DTL&type=movies.
170. Amazon Defense Coalition: Amazon Watch: Chevron's Amazon Disaster Lands at Sundance, Energy & Ecology, Jan. 30, 2009, at 87.
171. Some NGOs, such as Amazon Watch, have petitioned the SEC to conduct an investigation into Chevron for failure to disclose the lawsuit to its shareholders. See Amazon Watch, Summary and Analysis of Chevron's Undisclosed Ecuador Liabilities, http://www.amazonwatch.org/amazon/EC/toxico/downloads/ analysis-cvx-undisclosed-liabilities. pdf (last visited Jan. 24, 2009). Chevron protests that it has previously "referenced the suit in proxy statements." Clarification, Newsweek, Aug. 7, 2008, http://www.newsweek. com/id/149090 (correcting imprecise language in Isikoff s July 26, 2008 story A $ 16 Billion Problem, supra note 87). In addition, on May 4, 2009, New York attorney general Andrew Cuomo sent a letter to Chevron requesting information on the lawsuit, as the state's pension funds have over $ 1 billion invested in Chevron. Justice or Extortion?, Economist, May 23, 2009, at 42.
172. Chevron trades on its image as a socially responsible corporation, as is evident from its "global issues" environment webpage. See Chevron, Environment, http://www.chevron.com/globalissues/environment/(last visited Jan. 24, 2009) ("We're committed to helping meet the world's demand for energy while taking steps to protect the environment. We believe that it's the right thing to do and that it's critical to our success in a world in which energy sources should be developed in an environment that's clean, safe and healthy.").
173. These effects are known as "biomagnification" or "bioamplification" and occur as a result of slow toxin degradation and reuptake by animals in the environment. See Cabrera, supra note 57, at 10;
174. Jae-Young Ko & John W. Day, A Review of Ecological Impacts of Oil and Gas Development on Coastal Ecosystems in the Mississippi Delta, 47 Ocean & Coastal Mgmt. 597 (2004).
175. Bhopal: Could it happen again?, BBC NEWS, Nov. 25, 2004, http://news.bbc.co.uk/2/hi/programmes/bhopal/4034829.stm;
176. see also Dearborn, supra note 25 at 227. The Bhopal case is illustrative for two reasons. First, it demonstrates the human costs of delay-had the company acted earlier, it might have prevented the accident altogether, or minimized loss of life through early settlement (enabling victims to afford expensive medical treatments). Second, it shows the power of aggressive dismissal stipulations to facilitate process and settlement abroad. While arguably FNC dismissal was inappropriate given India's assertion, made in paren patriae capacity, that its own judicial system could not handle the case, Judge Keenan's requirement that Union Carbide submit to U. S.-style discovery is undoubtedly a "but for" cause of the company's eventual $470 million settlement. See Upendra Baxi, Mass Torts, Multinational Enterprise Liability and Private International Law, 276 Rec. Des Cours 297, 354-63 (1999).
177. But see Jurianto, supra note 8, at 329 n. 213 (arguing "$ 470 million was staggering lower" than the public expected, which is why "the stock price of... []Union Carbide[] jumped up by $ 2 on the day the settlement was announced"). See also infra Part IV (discussing the Carbide case).
178. See Dara O'Rourke & Sarah Connolly, Just Oil? The Distribution of Environmental and Social Impacts of Oil Production and Consumption, 28 Ann. Rev. Env't Resour. 587, 596 (2003).
179. Cf. Teitz, supra note 37, at 32-35 (discussing confusion resulting from parallel cybersquatting actions).
180. See Republic of Ecuador v. ChevronTexaco Corp., No. 07-2868-cv, 296 F. App'x 124 (2d Cir. Oct. 7, 2008), petition for cert, filed, 11 U. S. L. W. 3531 (U. S. Mar. 9, 2009) (No. 08- 1123).
181. See Plaintiffs Memorandum of Law in Opposition to Defendants' Motion to Supplement the Record, at 3 n. l, ROE III, 499 F. Supp. 2d 452 (No. 04 Civ. 8378 (LBS)) (collecting statements by ChevronTexaco);
182. see also Amazon Defense Coalition: Chevron Lawyers Explode In Anger After More Oil Found at "Remediated" Sites In Ecuador Trial, Earth Times, Mar. 15, 2009, available at http://www.earthtimes.org/articles/show/amazon- defensecoalitionnbspchevron-lawyers-explode, 749573.shtml (quoting oil company statements "telling Ecuador's indigenous leaders to expect a 'lifetime of litigation' if they persist in pressing their claims").
183. See Alexei Barrionuevo, Emerging Markets Find They Aren 't Insulated From the Tumult, N. Y. Times, Oct. 7, 2008, at Bl;
184. Peter S. Goodman, A Rising Dollar Lifts U. S. But Adds to Crisis Abroad, N. Y. Times, Mar. 9, 2009, at Al (noting Ecuador is on the "list of potential danger zones").
185. The opposite scenario, where Judge Nuñez rules first, would not be as harmful. The main issue in Lago Agrio is not the Republic's liability to Chevron so much as the Lago Agrio plaintiffs' standing to bring suit. Thus, the ROE trial bears far more directly on the Lago Agrio proceedings than the reverse.
186. See discussion supra note 20.
187. The government has already refused to honor the countries' foreign debt obligations on similar grounds. See Jeanneth Valdivieso, Ecuador Minister: Debt Renegotiation Imminent, Forbes.com, Jan. 9, 2009, http://www.forbes.com/feeds/ ap/2009/01/09/ap5903339.html. Of course, the Correa administration may refuse to pay even if Judge Nunez and Judge Sand both find the remediation agreement indemnifies the oil company as to third-party claims. However, in that scenario President Correa would lack a credible basis for his argument, risking injury to the country's standing in the environmental and human rights communities-standing President Correa cannot afford to lose given the international support required for his conversion of the Yasuní National Reserve. See Kintto Lucas, Ecuador: Support Grows for Letting Sleeping Amazon Oil Lie, Inter Press Service, Aug. 23, 2007, http://www.ipsnews.net/news.asp? idnews=39002. In any event, such an outcome is unlikely given the judicial and constitutional reforms that have transformed Ecuador into a far more plaintiff-friendly location, much to ChevronTexaco's consternation, and the damning Cabrera report, supra note 57.
188. But see Alan O. Sykes, Transnational Forum Shopping as a Trade and Investment Issue, 37 J. Legal Stud. 339, 372 (2008) (arguing that holding corporations liable may result in loss of foreign direct investment (FDI), diminishing overall societ al. welfare, and having "little effect on the level of objectionable behavior").
189. Kimerling, Transnational Operations, supra note 20, at 451-55.
190. Amazon Defense Coalition, supra note 69.
191. As a general matter, the subject of parallel international proceedings, dubbed lis alibi pendens, or international abstention, is beyond the scope of this Comment. I focus only on the specific problem of boomerang suits in which a U. S. court has already made a determination that a foreign forum is better suited for resolving the issue or issues in question. For excellent general treatments of the broader topic
192. see N. Jansen Calamita, Rethinking Comity: Towards a Coherent Treatment of International Parallel Proceedings, 27 U. Pa. J. Int'l Econ. L. 601 (2006);
193. Steven R. Swanson, The Vexatiousness of a Vexation Rule: International Comity and Antisuit Injunctions, 30 Geo. Wash. J. Int'l L. & Econ. 1 (1996);
194. Teitz, supra note 37.
195. See Calamita, supra note 105, at 655-72. Among circuits supporting deference to foreign proceedings-since others mandate exercising parallel jurisdiction until a decision is reached-there are three different schools of thought. The first, labeled "abstentionism, " is modeled on the Supreme Court's decision Colorado River Water Conservation District v. United States, 424 U. S. 800 (1976), regarding deference to state courts. Calamita, supra note 105, at 657. The second group of courts follows the Supreme Court's decision Landis v. North American Co., 299 U. S. 248 (1936), and bases its capitulation to other tribunals on factors such as the "promotion of judicial efficiency, the adequacy of relief available in the alternative forum, considerations of fairness to the parties and possible prejudice, and the temporal sequence of the filing of each action. " Calamita, supra note 105, at 666. The third group "exercises jurisdictional discretion under principles of adjudicatory comity, [and] 'invok[es] a doctrine akin to forum non conveniens.'"
196. See id. at 669 (quoting Diorinou v. Mezitis, 237 F.3d 133, 139 (2d Cir. 2001)).
197. See id. at 671 n. 221, 672-73 n. 222-24 (collecting cases) (noting an "early application of [FNC], often cited by the Supreme Court... was itself a case involving a lis alibi pendens in the Admiralty Court of Canada... [in which] a substantial consideration... was the existence of the parallel Canadian action and the concern that if the two actions were allowed to proceed 'the Canadian Court of Admiralty [might] determine liability one way, and this court another way'") (citations omitted);
198. see also Royal & Sun Alliance Ins. Co. v. Century Int'l Arms, Inc., 466 F.3d 88 (2d. Cir. 2006) (holding that international abstention requires a finding of "exceptional circumstances, " taking account the totality of the circumstances, including similarity of parties, similarity of issues, order of actions filed, adequacy of the foreign forum, prejudice and convenience to either party, and connection to the United States).
199. Parklane Hosiery Co. v. Shore, 439 U. S. 322 (1979) (holding that issue preclusion can be applied by nonparties to earlier litigation but not against a person or entity who was "not a party or a privy" in the initial action);
200. see also Richards v. Jefferson County, 517 U. S. 793 (1996) ("[A] judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings.") (quoting Martin v. Wilks, 490 U. S. 755, 761-62 (1989)).
201. Of course, Judge Sand's ruling may serve as persuasive authority, though it is unlikely that Judge Nuñez would deem a foreign court's interpretation of Ecuadorian law particularly compelling. See infra Part III (for a brief discussion of choice of law issues).
202. Privity "is a legal conclusion 'designating a person so identified in interest with a party to former litigation that he represents precisely the same right in respect to the subject matter involved.'" United States v. Schimmels, 127 F.3d 875, 881 (9th Cir. 1997) (quoting Sw. Airlines Co. v. Texas Int'l Airlines, Inc. 546 F.2d 84, 94 (5th Cir. 1977));
203. see also James R. Pielemeier, Due Process Limitations of the Application of Collateral Estoppel Against Nonparties to Prior Litigation, 63 B. U. L. Rev. 383, 386-89 (1983) (outlining the many categories of legal relationships under the rubric of privity).
204. Cristóbal Bonifaz was the lead attorney for the Aguinda plaintiffs as well as the Republic of Ecuador in ROE but was terminated by both. His legal team has also been sanctioned for proceedings in the Northern District of California, where they presented falsified testimony from othér individuals not part of the Lago Agrio class seeking personal injury damages for the health effects of Texaco's pollution in the Oriente. See Doe v. Texaco, Inc., No. C 06-02820 WHA, 2006 WL 2917581 (N. D. Cal. Oct. 11, 2006).
205. Memorandum of Law in Support of Motion of Chevron Corp. & Texaco Petroleum Co. for Summary Judgment upon Their Counterclaims, supra note 79, at 3-4, 13.
206. Parens patriae is defined as "[a] doctrine by which a government has standing to prosecute a lawsuit on behalf of a citizen, esp[ecially] on behalf of someone who is under a legal disability to prosecute the suit." Black's Law Dictionary 1144 (8th ed. 2004).
207. See, e.g., City of Tacoma v. Taxpayers of Tacoma, 357 U. S. 320 (1958);
208. Alaska Sport Fishing Ass'n v. Exxon Corp., 34 F.3d 769, 774 (9th Cir. 1994);
209. Badgley v. City of New York, 606 F.2d 358, 364 (2d Cir. 1979);
210. City of New York v. Beretta U. S. A. Corp., 315 F. Supp. 2d 256, 256-66 (E. D. N. Y. 2004);
211. United States v. Olin Corp., 606 F. Supp. 1301, 1308 (N. D. Ala. 1985). This doctrine commonly arises in the environmental law context. However, it usually applies where the government seeks to enforce environmental statutes (for example, CERLA) rather than as a defense to a private actor's claims.
212. See, e.g., Alfred L. Snapp & Son v. Puerto Rico, 458 U. S. 592, 602 (1982).
213. As the Republic makes plain, it is not taking sides. Rather, it stands caught in the middle "between two warring protagonists who have been in litigation for fifteen years." Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment on Their Counterclaims, supra note 78, at 4. The Republic has an interest in maintaining an "independent judiciary" and remaining at arms length from the Lago Agrio plaintiffs to preserve this appearance.
214. See id. at 8. Furthermore, it would not be in the Lago Agrio plaintiffs' best interest to collaborate fully with the Republic, especially since there may be future lawsuits over PetroEcuador's involvement in the Consortium or the Republic's failure to adequately protect the rights of indigenous groups.
215. See Memorandum of Law in Support of Motion of Chevron Corp. & Texaco Petroleum Co. for Summary Judgment upon Their Counterclaims, supra note 79, at 3. Of course, the argument that the Republic implicitly or accidentally acted in parens patriae capacity in ROE might face an uphill battle given Carbide, where the government of India explicitly took this stance on behalf of its citizens.
216. See Baxi, supra note 93.
217. Arguably, the Ecuadorian and U. S. versions of parens patriae differ. See Foreign Law Declaration of Genaro Eguiguren and Ernesto Alban at 29-30, Republic of Ecuador v. ChevronTexaco Corp. (ROE II), 426 F. Supp. 2d 159 (S. D. N. Y. 2006). The significance of this difference at the judgment enforcement stage is hard to predict.
218. Memorandum of Law of Proposed Intervening Plaintiffs Kemperi Baihua, et al., in Support of the Motion of Kemperi Baihua, et al., to Intervene as Plaintiffs Pursuant to Fed. R. Civ. P. 24, at 6, ROE III, 499 F. Supp. 2d 452 (No. 04-CV-8378 (LBS)) (" (1) to protect their rights, claims and interests, and vigorously dispute the defendants' allegation that they lacked the right to sue Texaco for remediation and restoration prior to the enactment of Ecuador's 1999 Law of Environmental Management (Ley de Gesti[ó]n Ambiental), and the corollary implication that absent that legislation, they would have no rights or claims for remediation or restoration against Texaco or any other oil company that has damaged, destroyed, degraded and/or contaminated their environment and natural resources; and (2) to assert claims against the defendants that are not currently being litigated either in this Court or in the Lago Agrio action. "). The question of intervention will be discussed in greater depth infra Part IV.
219. See Ristroph & Casey, supra note 8, at 33.
220. Dearborn, supra note 25, at 148.
221. See Sequihua v. Texaco, Inc., 847 F. Supp. 61, 63 (S. D. Tex. 1994);
222. Doe v. Texaco, Inc., No. C 06-02820 WHA, 2006 WL 2917581 (N. D. Cal. Oc. 11, 2006).
223. See Alford, supra note 15, at 518, 526 (noting that human rights claims against corporations "almost always are premised on some contractual agreement between the corporation and the sovereign" and predicting that "[t]o the extent that corporations are increasingly subject to third-party claims for human rights violations arising out of or related to a contract with a sovereign... corporations will seek to shield themselves from this third-party risk by invoking the arbitration clause in the contract against the sovereign. In short, human rights litigation will lead to 'who pays' arbitration. ").
224. See Zachary Elkins, Andrew T. Guzman & Beth Simons, Competing for Capital: The Diffusion of Bilateral Investment Treaties, 1960-90, Latin Am. & Caribbean L. & Econ. Ass'n (ALACDE) Annual Papers, 26-27 (2006), http://repositories.cdlib.org/cgi/viewcontent.cgi?article=1028&context=bple;
225. see also Luke Eric Peterson & Kevin R. Gray, International Institute for Sustainable Development, International Human Rights in Bilateral Investment Treaties and in Investment Treaty Arbitration 16 (2003), available at http://www.iisd.org/pdfy2003/investment-int-human-rights-bits.pdf, ("[A]s all nations - but developing countries in particular - increasingly compete for scarce foreign direct investment, it is sometimes the case that host states will ignore their international human rights obligations... foreign direct investment by multinational corporations has exacerbated or contributed to conflict, having inimical effects upon human rights and human security in the host state.").
226. See Alford, supra note 15, at 518 (documenting, inter alia, cases involving Pfizer's contracts with Nigeria for experimental drug testing, Unocal's joint venture with Burma for an oil pipeline, Titan's agreement with the United States to detain and interrogate detainees at the Abu Ghraib, and ExxonMobil's liability for abuses committed by the Indonesian military contingent charged with guarding gas production facilities in Sumatra). See also discussion supra note 15.
227. Alford, supra note 15, at 528-48.
228. Peterson & Gray, supra note 122, at 18;
229. cf. Luke Eric Peterson, International Institute for Sustainable Development, Bilateral Investment Treaties and Development Policy-Making 24-26 (2004) (noting lack of transparency and massive costs of hiring arbiters give corporations a leg up in disputes).
230. Interview with Steven Donziger, supra note 86.
231. I will focus exclusively on ChevronTexaco's counterclaims because they directly overlap with matters under adjudication in Ecuador (that is, the release agreement and the 1999 environmental statute). Nevertheless, it is possible to argue, consistent with the thesis of this Comment, that the arbitration issue should also have been dismissed on FNC grounds if the two issues stem from the "same case and controversy." The reasons supporting a dismissal of the Republic's request for a stay are primarily those discussed in this Part: the original justifications proffered by Judge Rakoff. The dangers of delay, inconsistent results, and prejudice to third parties, however, are less pressing given that the 1965 Napo JOA has no relationship to the facts underlying Aguinda.
232. Republic of Ecuador's and PetroEcuador's Memorandum Opposition Motion to Intervene [hereinafter Ecuador Opposition] at 11, ROE III, 499 F. Supp. 2d 452 (S. D. N. Y. 2007) (No. 04 Civ. 8373 (LBS)).
233. Plaintiffs' ROE III Brief, supra note 15, at 13-14 ("There can be no doubt that at this juncture Ecuador is the far more appropriate forum in which to litigate Defendants' counterclaims-all of which center on the construction of 'release' language in two Spanish language contracts entered into in Ecuador in 1995 and 1998 by Plaintiffs and Defendants, the former allegedly (but contestedly) acting in a parens patriae capacity under Ecuadorian public law in signing the release (a contract relating to obligations by Texaco to be performed in Ecuador, pertaining to the health and safety of the environment in Ecuador and to its citizens, and pursuant to which Ecuadorian law will be paramount) -all this against the backdrop of the 1999 Ecuadorian environmental legislation, Chevron's ten-year campaign to move the Aguinda litigation to Ecuador for forum non conveniens reasons, and the alleged 'collusion' within Ecuador between Ecuadorian government officials and the Aguinda plaintiffs.").
234. See, e.g., Seagal v. Vorderwuhlbecke, 162 F. App'x 746, 748 (9th Cir. 2006) (upholding broad sua sponte dismissal powers and according deference to district court's legal and factual determinations, even when the trial judge did not explicitly discuss some of the FNC factors);
235. Corporation Mexicana de Servicios Maritimos v. M/T Respect, 89 F.3d 650, 656 n. l (9th Cir. 1996) ("Although Pemex-Refining waived the doctrine of forum non conveniens when it intervened in this action, the district court could still raise the issue sua sponte.");
236. Plum Tree, Inc. v. Stockment, 488 F.2d 754, 757 (3d Cir. 1973);
237. Vogt-Nem, Inc. v. M/V Tramper, 263 F. Supp. 2d 1226, 1233-34 (N. D. Cal. 2002).
238. See Kelly v. Kelly, 911 F. Supp. 70, 71 n. 3 (N. D. N. Y. 1996).
239. But see Oil Basins Ltd. v. Broken Hill Proprietary Co., 613 F. Supp. 483, 486, 488-89 (S. D. N. Y. 1985) (declining to "order such a drastic remedy sua sponte, particularly in light of the ongoing dispute concerning the Australian court's jurisdiction over plaintiff').
240. "Exceptional circumstances" is the same standard employed for international abstention; thus, a court may prefer to stay proceedings until a foreign court reaches a judgment. Nevertheless, as explained in, supra note 107, the abstention doctrine is in disarray.
241. Some commentators also question whether sua sponte FNC dismissals are appropriate if neither party objects to the location. See Derr, supra note 25, at 838 (arguing "[fjederal judges have good, but possibly erroneous, historical and doctrinal reasons to presume (and exercise) their power to dismiss sua sponte for forum non conveniens.... Court-access doctrines, designed to ensure a sufficient connection between the dispute and the forum, are duplicated in purpose and effect by the forum non conveniens analysis. Hence, the mandatory presence of jurisdiction and venue requirements undercuts any argument that the need for control over administrative matters requires that judges have the power to raise forum non conveniens sua sponte.") (footnotes omitted).
242. The oil company's own briefs also suggest that Judge Sand should be wary of taking any action that undermines litigation predating the ROE proceedings and support the proposition that the Judge could have considered FNC from the outset. See Memorandum of Chevron Corp. & Texaco Petroleum Co. in Opposition to Plaintiffs' Motion to Dismiss Defendants' Counterclaims at 9, ROE III, 499 F. Supp. 2d 452 (S. D. N. Y. 2007) (No. 04 Civ. 8378 (LBS)) (citing Alnwick v. European Micro Holdings, Inc., 29 F. App'x 781, 783 (2d Cir. 2002);
243. *5 (S. D. N. Y. Dec. 20, 1991)).
244. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 100-02 (2d Cir. 2000). When FNC is decided by motion, the burden falls on the moving party, normally the defendant, to defeat her opponent's forum choice. Id. (noting the deference accorded the plaintiffs' forum choice increases along a sliding scale with the strength of her ties to the United States). When a boomerang suit is decided sua sponte, the question of deference to the plaintiffs forum preference might be informed by the Wiwa sliding scale, supra, and by the interests of absent third parties, discussed supra Part II and infra Part IV. No recorded federal case appears to deal with the question of FNC motions made by a plaintiff. This fact likely explains the Republic's reluctance to make a formal motion on these grounds earlier in the proceedings.
245. Piper Aircraft Co. v. Reyno, 454 U. S. 235, 254 n. 22 (1981) (quoting Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 506-07 (1947));
246. see also Blanco v. Banco Industrial de Venezuela, S. A., 997 F.2d 974, 981 (2d Cir. 1993).
247. DiRienzo, 232 F.3d at 57;
248. see also Jota v. Texaco, Inc., 157 F. 3d 153, 159 (2d Cir. 1998).
249. Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534, 539 (S. D. N. Y. 2001), aff d, 303 F.3d 470 (2d Cir. 2002).
250. See Ecuador Opposition, supra note 128. Perhaps more relevant than service of process is whether the Republic would be vulnerable to suit in its own courts. As in the United States, the government is protected by sovereign immunity. However, this privilege can be waived, and often only extends to certain types of judicial proceedings. The Republic of Ecuador routinely consents to suits over everyday matters, such as contracts, in special tribunals, known as District Courts of Administrative Proceedings.
251. See Ernesto Velázquez Baquerizo, La Justicia Administrativa en la Reforma Constitucional, Revista Jurídica, Sept. 28, 1993, at 173-74, available at http://www.revistajuridicaonImexonVimages/stories/revistas/1993/08/ 08-La-Justicia-Administrat iva-En-Reforma-Const.pdf. If ChevronTexaco wanted to dispute the validity of the release agreement, it could file in these venues, or, if the Government was deemed to act in its protectorate capacity under the judicial doctrine of parens patriae, it could be sued in other civil courts. But see supra note 64.
252. See Aguinda, 142 F. Supp. 2d at 551 (noting that, according to Texaco's affidavits, the government of Ecuador and PetroEcuador "could be joined in any similar suit brought in Ecuador" and that "Petro[E]cuador was in fact so impleaded in one of the similar suits brought against TexPet in Ecuador").
253. While such stipulations might give a district court the ability to infer consent, they do not compel a judge reach such a conclusion. The desirability of more aggressive pre-dismissal waivers is developed infra.
254. See Aguinda, 142 F. Supp. 2d at 547.
255. But see Aguinda, 303 F.3d at 477 (quoting Bank of Credit & Commerce Int'l v. State Bank of Pak., 273 F.3d 241, 248 (2d Cir. 2001) to "suggest[] that the degree of protection that must be afforded by a conditional dismissal on forum non conveniens grounds will vary depending on how certain the court is that, under unsettled foreign law, the foreign forum will be available").
256. Piper Aircraft Co. v. Reyno, 454 U. S. 235, 255 n. 22 (1981) (quoting Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 506-07 (1947)) (noting there are "rare circumstances" under which "the remedy offered by the other forum is clearly unsatisfactory" that warrant denial of an FNC motion).
257. Aguinda, 142 F. Supp. 2d at 544 (noting the court considered, sua sponte, "submissions... not only from the parties but also from the U. S. Department of State and the Government of Ecuador").
258. See, e.g., Delgado v. Shell Oil Co., 890 F. Supp. 1324, 1359-60 (S. D. Tex. 1995), aff d, 231 F.3d 165 (5th Cir. 2000).
259. Aguinda, 142 F. Supp. 2d at 545 (noting human rights violation "largely involve[d] confrontations between the police and political protestors" and thus were irrelevant to the question of whether the plaintiffs' claims could fairly be tried abroad).
260. Id. at 544;
261. see also El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 678 (D. C. Cir. 1996). Scholars have subsequently questioned much of Judge Rakoffs reasoning. Professor Judith Kimerling, who works with several indigenous communities affected by the contamination, wrote a seminal article taking the judge to task for relying entirely on Texaco affidavits to establish the absence of corruption in the Ecuadorian judiciary while ignoring more credible documents to the contrary from the State Department, the United Nations, the Inter American Court, and Americas Watch. Kimerling, Indigenous Peoples, supra note 22, at 546-50, 548 n. 372 (collecting sources detailing corruption). Responsible factors for corruption include "poor salaries, low prestige, and the growing politicization of the courts." Kimerling, Rights, Responsibilities, supra note 11, at 304.
262. z.ast;25-26 (D. D. C. Feb. 12, 2003).
263. Wight v. BankAmerica Corp., 219 F.3d 79, 89 (2d Cir. 2000) (citation omitted).
264. Plaintiffs ROE III Brief, supra note 15, at 16 n. 14 (quoting Phoenix Canada Oil Co. v. Texaco, Inc., 78 F. R. D. 445, 455 (D. Del. 1978)).
265. See Kimerling, Indigenous Peoples, supra note 22, at 415-16, 422, 425.
266. See id. at 559-60 (providing chilling examples of environmental activists who were intimidated and subsequently killed to debunk Judge Rakoffs conclusion that no evidence of any impropriety on behalf of the petroleum company existed in any judicial proceeding in Ecuador). Cf. Amazon Defense Coalition, Chronology of Intimidation Against Coalition Legal Team (2006), available at http://www.texacotoxico.org/eng/node/81 (detailing kidnapping attempts, burglaries, and harassment of the Lago Agrio plaintiffs' attorneys);
267. Amnesty International, Ecuador: Further Information on Fear for Safety (2006), available at http://www.amnesty.org/en/library/asset/AMR28/009/2006/en/ dom-AMR280092006en. pdf (same).
268. ChevronTexaco has made much of President Correa's bias in favor of the Lago Agrio plaintiffs and the sweeping judicial and constitutional reforms the president has implemented. See discussion supra note 20. For the purposes of this Comment, I assume that if the bias is as severe as ChevronTexaco alleges, it can raise this point at the judgment enforcement stage.
269. Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534, 545 (S. D. N. Y. 2001), aff'd, 303 F.3d 470 (2d Cir. 2002);
270. Blumberg, supra note 25, at 507-08 ("Even in the cases involving international human rights where the deficiencies are particularly harmful, no court has concluded that they have deprived plaintiff of an adequate alternative forum or resulted in a denial of justice.");
271. see also Banco Latino v. Gomez Lopez, 17 F. Supp. 2d 1327, 1332 (S. D. Fla. 1998) (parallel proceeding in Venezuela "lends further support to the adequacy of the Venezuelan forum").
272. Aguinda, 142 F. Supp. 2d. at 551 (noting that "neither the Government of Ecuador nor PetroEcuador, the state-run oil company that owns the Consortium and had primary control of it through much of the relevant time period, are parties to the instant suits, whereas they could be joined in any similar suit brought in Ecuador"). But see discussion supra note 64 (questioning the conclusion that the Republic of Ecuador and PetroEcuador could not be joined).
273. Id. at 542.
274. See Plaintiffs' ROE III Brief, supra note 15, at 10 n. 8;
275. Lago Agrio Legal Team, supra note 2, at 7.
276. Lago Agrio Legal Team, supra note 2, at 7-10.
277. Id. at 10-13.
278. See Cabrera, supra note 57, at 7-27.
279. In fact, Judge Sand rejected a motion to intervene on behalf of the Huaorani and Kichwa, two of the indigenous groups living in contaminated areas, possibly on the grounds that such an intervention would be untenable for logistical reasons. No ruling detailing the judge's reasoning on this issue is publically available; Judge Sand denied the would-be intervenors' motion on November 13, 2006 after oral arguments. Cf. supra note 62 (discussing logistical difficulties in Aguinda).
280. See Piper Aircraft Co. v. Reyno, 454 U. S. 235, 255-57 (1981);
281. Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 508-10 (1947);
282. DiRienzo v. Philip Servs. Corp., 232 F.3d 49, 56 (2d Cir. 2000), vacated, 294 F.3d 21, 56-57 (2d Cir. 2002).
283. Kimerling, Indigenous Peoples, supra note 22, at 528 (quoting Piper Aircraft, 454 U. S. at 241) (punctuation omitted).
284. But see Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 100-02 (2d Cir. 2000) (foreign plaintiffs have diminished interest in a U. S. hearing). Foreign plaintiffs in boomerang suits may have little interest in remaining in the United States, as evidenced by the Republic of Ecuador's initial protestations. Thus, in many instances, the Wiwa scale actually tilts toward dismissal. For cases where the foreign plaintiffs wish to remain in the United States, but doing so would pose a risk to third parties pursuing law suits abroad, an FNC analysis becomes more complicated. See infra Part IV.
285. See Aguinda, 142 F. Supp. 2d at 547 (citing Gilbert, 330 U. S. at 508-09).
286. Id. at 548.
287. Id.
288. Id. "The record... clearly establishes that all of the Consortium's key activities, including the decisions and practices here at issue, were managed, directed, and conducted by Consortium employees in Ecuador... By contrast, no one from Texaco or, indeed, anyone else operating in the United States, made any material decisions as to the Consortium's activities and practices that are at issue here."). But see Kimerling, Indigenous Peoples, supra note 22, at 577-78 ("The litigation record developed by the plaintiffs is lean but not empty. It shows considerable attention by Texaco to financial details, including clear procedures requiring multiple approvals in the United States for Texaco Petroleum's annual budget, off-budget expenditures and contracts with subcontractors, and use of expatriate personnel-U. S. nationals-in Texaco Petroleum's Ecuador office to supervise accounting.") (footnotes omitted).
289. Aguinda, 142 F. Supp. 2d at 548.
290. See id.
291. See Kimerling, Indigenous Peoples, supra note 22, at 493.
292. Lago Agrio Legal Team, supra note 2, at 4 n. 6.
293. Kimerling, Indigenous Peoples, supra note 22, at 497-98, 528.
294. See id. at 508-13 (discussing the controversy regarding the involvement of both groups and the disappearance of monies supposedly earmarked for community projects aimed at improving education, public works, and environmental remediation).
295. Id. at 498 (discussing the company Corposega S. A. in relation to irregularities and misuses of funds intended for the remediation).
296. Ecuador, unlike the United States, does not have well-developed standards for screening evidence for accuracy and relevance. E-mail from Steven R. Donziger, Consultant, Amazon Def. Coal., to author (May 24, 2009) (on file with the author).
297. Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534, 551 (S. D. N. Y. 2001), aff'd, 303 F.3d 470 (2d Cir. 2002) (citing Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 508-09 (1947)).
298. * 10 (D. N. H. Jan. 28, 2000) ("[D]ismissal of this case in favor of the case pending in Malta, where [the plaintiff] is already a party and could bring its claims as counterclaims, would not add to the docket in Malta. In contrast, if Eastpoint's suit is maintained here, both this court and the Malta court will hear and decide essentially the same case based on the same evidence and the same witnesses, although the Malta court may have better access to both evidence and witnesses. Duplicate parallel litigation would mean a duplication of effort by the courts and the related additional burdens and costs incurred by the parties and their counsel. Interests of both the parties' convenience and judicial economy favor dismissing the suit in this court in favor of the proceeding in Malta.").
299. See Aguinda, 142 F. Supp. 2d at 551.
300. Id. at 552.
301. Id.
302. See Kimerling, Indigenous Peoples, supra note 22, at 606-13 (arguing that none of the factors was fully considered by the court).
303. Id. at 608 (listing two reasons given by Judge Broderick in favor of U. S. intervention: "relieving developing nations like Ecuador 'of the need to offend [foreign] investors by imposing... controls which, however desirable, might be resisted by the investors;' and deterring harmful pollution and conduct by investors that violates applicable legal norms") (footnotes omitted);
304. see also Memorandum of Chevron Corp. & Texaco Petroleum Co. in Opposition to Plaintiffs' Motion to Dismiss Defendants' Counterclaims, supra note 132, at 12 (arguing there is a U. S. "interest in deciding the counterclaims... [because] Chevron and TexPet are United States corporations" and because the remediation contract has "important implications for the ability of United States corporations to do business abroad and to discharge their responsibilities when their operations in a foreign nation come to a close.").
305. Kimerling, Indigenous Peoples, supra note 22, at 603-13.
306. The Lago Agrio trial has probably amassed more scientific data than any environmental case to date, and possibly more than any previous proceeding in the world. Over eighty thousand tests have been conducted. Interview with Steven Donziger, supra note 86.
307. In Ecuador, trials are not broken up into separate liability and damages phases. The Peritaje Global-assessing whether or not the remediated areas are free from environmental toxins-occurs at the end, but does not preclude a court from ruling that the Lago Agrio plaintiffs' legal standing was foreclosed by the remediation contract, or that ChevronTexaco was not liable for the actions of its Ecuadorian subsidiary, TexPet, or that the Republic of Ecuador and PetroEcuador were jointly and severally liable. This might strike U. S. practitioners as remarkably inefficient given that thousands of scientific tests and over two hundred thousand pages of documentation chronicling the health and environmental effects ultimately may have no legal relevance.
308. See id.
309. E-mail from Steven R. Donziger, Consultant, Amazon Def. Coal., to author (May 24, 2009) (on file with author).
310. But see Kimerling, Indigenous Peoples, supra note 22, at 609-10 (arguing Judge Rakoff did not sufficiently consider the extent complicated U. S. environmental laws would need to be applied by the Lago Agrio court to evaluate Texaco's arguments).
311. ROE II, 426 F. Supp. 2d 159, 159 (S. D. N. Y. 2006).
312. See ROE III, 499 F. Supp. 2d at 460-68 (exploring whether Ecuador's laws encompass the estoppel concept for PetroEcuador).
313. Id. (concluding that failure to follow government contract formalities particular to Ecuador, such as obtaining a report from the Armed Forces and the President's signature, rendered the agreement void and that the actos propios doctrine-the Ecuadorian equivalent of estoppel- was inapposite, having come into being twenty years after the JOA).
314. Chevron Corp. 's & Texaco Petroleum Co.'s Supplemental Reply Brief on Ecuador Law and Choice of Law at 2, ROE III, 499 F. Supp. 2d 452 (No. 04 Civ. 8378 (LBS)) (arguing that the South American nation's law is important as "background fact or 'datum'"); Supplemental Summary Judgment Memorandum of Chevron Corp. & Texaco Petroleum Co. at 20 n. 10, ROE III, 499 F. Supp. 2d 452 (No. 04 Civ. 8378 (LBS)) (stating that New York's relevant choice of law proviso concerning questions outside of the agreement and the relationship of the parties explicitly calls for the use of Ecuadorian law as a gap filler).
315. ROE II, 426 F. Supp. 2d at 163.
316. See Foreign Law Declaration of Genaro Eguiguren and Ernesto Alban at 29-30
317. Republic of Ecuador v. ChevronTexaco Corp. (ROE II), 426 F. Supp. 2d 159 (S. D. N. Y. 2006).
318. Kimerling, Transnational Operations, supra note 20, at 494;
319. see also Memorandum of Law in Support of Plaintiffs' Motion for Summary Judgment and Plaintiffs' Stay of Arbitration Proceedings at 63-66, ROE III, 499 F. Supp. 2d 452 (No. 04 Civ. 8378 (LBS));
320. Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment On Their Counterclaims at 15-16, supra note 78;
321. Memorandum of Law in Support of Motion of Chevron Corp. & Texaco Petroleum Co. for Summary Judgment upon Their Counterclaims, supra note 79, at 23, 29-33.
322. In fact, Canada and England both employ FNC to "determine where a case should best be heard where parallel actions are pending in different countries." Calamita, supra note 105, at 670.
323. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 71.051 (b) (Vernon 2005).
324. See Thomas, supra note 27, § 4[a]-[h].
325. But see id. at § 5.
326. Id. In re Union Carbide Corp. Gas Plant Disaster, 809 F.2d 195 (2d. Cir. 1987), cert, denied sub nom.
327. Executive Coram. Members v. Union of India, 484 U. S. 871 (1987).
328. See Dearborn, supra note 25, at 227.
329. But see Jurianto, supra note 8, at 329 n. 213.
330. See 809 F.2d at 204-05 (The defendant "argues that we should protect it against such denial of due process by authorizing Judge Keenan to retain the authority... to monitor the Indian court proceedings and be available on call to rectify in some undefined way any abuses of UCC's right to due process as they might occur in India. UCC's proposed remedy is not only impractical but evidences an abysmal ignorance of basic jurisdictional principles, so much so that it borders on the frivolous. The district court's jurisdiction is limited to proceedings before it in this country.... Nor could we, even if we attempted to retain some sort of supervisory jurisdiction, impose our due process requirements upon Indian courts, which are governed by their laws, not ours.... Any denial by the Indian courts of due process can be raised by UCC as a defense to the plaintiffs' later attempt to enforce a resulting judgment against UCC in this country.").
331. Id. at 198.
332. See id. at 205.
333. If the Republic and PetroEcuador had been joined as codefendants in Aguinda, the arguments would have been crossclaims.
334. See Alford, supra note 15, at 518, 526.
335. See United Mine Workers v. Gibbs, 383 U. S. 715, 724 (1966) (providing this narrower standard for compulsory joinder). Joinder under Article Ill's "case and controversy" requirement allows joinder of any claims that the current rules permit.
336. See William A. Fletcher, "Common Nucleus of Operative Fact" and Defensive Set-Off: Beyond the Gibbs Test, 74 INDIANA L. J. 171, 176-79 (1998).
337. Santoyo, supra note 31, at 712-13.
338. See Casey & Ristroph, supra note 8, at 35 (discussing $489 million judgment against Dole, Shell, and Standard Fruit Corporation on behalf of 583 injured workers);
339. see also discussion supra note 57.
340. See Robert E. Lutz, A Lawyer's Handbook for Enforcing Foreign Judgments in the United States and Abroad 19 (2007) (enumerating six grounds for non-enforcement of foreign judgments: "[1] insufficient notice to the defendant; [2] obtaining a judgment by fraud; [3] a judgment repugnant to public policy in domestic state; [4] a judgment that conflicts with another final and conclusive judgment; [5] a foreign court proceeding contrary to the parties' agreement in question in another forum; or [6] a seriously inconvenient forum for the trial of action");
341. Heiser, supra note 26, at 635.
342. See Jeffrey Rosen, Supreme Court Inc., N. Y. Times Mag., Mar. 16, 2008, at 38;
343. cf. supra note 57 (citing landmark punitive damages reduction case).
344. See supra note 20. Unfortunately, as ChevronTexaco's attitude evinces, corporations are often able and willing to fight to the death to avoid liability (in ChevronTexaco's case even going so far as to lobby the U. S. trade representative to withdraw from the U. S.-Ecuador Free Trade Agreement should the Lago Agrio court find the company liable).
345. See Isikoff, supra note 87.
346. See Soc'y of Lloyd's v. Ashenden, 233 F.3d 473, 477 (7th Cir. 2000) (Posner, J.) (foreign judgments under UFMJRA entitled to full faith and credit).
347. Id. (citing Ingersoll Milling Mach. Co. v. Granger, 833 F.2d 680, 687-88 (7th Cir. 1987)).
348. See id. ("Rather than trying to impugn the English legal system en gross, the defendants argue that the Illinois statute requires us to determine whether the particular judgments that they are challenging were issued in proceedings that conform to the requirements of due process of law as it has come to be understood in the case law of Illinois and other American jurisdictions. The statute, with its reference to 'system, ' does not support such a retail approach, which would moreover be inconsistent with providing a streamlined, expeditious method for collecting money judgments rendered by courts in other jurisdictions-which would in effect give the judgment creditor a further appeal on the merits. The process of collecting a judgment is not meant to require a second lawsuit.").
349. See Boyd, supra note 24, at 70 (arguing, inter alia, that "modem modes of transportation, multilateral treaties providing for service abroad and other procedural mechanisms for international litigation, render Gilbert's private interest analysis, virtually obsolete").
350. Heiser, supra note 26, at 615 nn. 37-38 (noting, in addition, that that "failure to include a return jurisdiction clause [can] constitute[] a per se abuse of discretion" in some jurisdictions).
351. But see Leetsch v. Freedman, 260 F.3d 1100, 1104 (9th Cir. 2001) (failure to include "return clause" is not an abuse of discretion; such a requirement would contravene Supreme Court precedent emphasizing flexibility and tailored analyses that are the touchstone of FNC).
352. See, e.g., Sequihua v. Texaco, Inc., 847 F. Supp. 61, 63 (S. D. Tex. 1994);
353. Doe v. Texaco, Inc., No. C 06-02820 WHA, 2006 WL 2917581 (N. D. Cal. Oct. 11, 2006).
354. See Casey & Ristroph, supra note 8, at 43-44;
355. Alford, supra note 15, at 526.
356. See Plaintiffs' ROE III Brief, supra note 15 (collecting expert testimony).
357. See Daschbach, supra note 38, at 55.