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Posts Tagged ‘Alien Tort Statute’

The Implications

In For Further Reading on December 4, 2008 at 8:50 am

Here’s a great article by Anthony Sebok, Professor at Cardozo School of Law, on the significance of the verdict: Chevron Wins an Alien Tort Statute Case – But the Victory May Be Less Important than It Might Seem

VERDICT: CHEVRON FOUND NOT LIABLE

In Trial Notes on December 1, 2008 at 3:12 pm

Around 2:30 this afternoon the jury read their verdict and exonerated Chevron on all claims. While we don’t know what informed this decision, it was clear that the plaintiffs faced multiple hurdles in making their case against the Chevron parent companies.

Even if the jury found that Nigerian security forces had violated international law and committed common law torts in their May 28th, 1998 raid on the Parabe platform, they would still unanimously have had to find that Chevron Nigeria Ltd. either aided and abetted or conspired with the Nigerian security forces–or that the those forces were the agents of CNL. Then, even with that second hurdle surmounted, the jury would have had to find that CNL was under the control of the parent companies, and thus that the parent companies could be vicariously liable for the actions of CNL and the Nigerian military.

That’s a tall order. Even though certain of the claims only required a lesser burden of proof — a “preponderance of evidence” as opposed to proof “beyond a reasonable doubt”– I think that Chevron’s attorneys planted sufficient doubt in the minds of at least one juror to overcome the plaintiffs’ claims.

Where we do go from here? Attorneys for Larry Bowoto and co-plaintiffs will file an appeal with the 9th circuit court. This is not over.

Even if today’s ruling is a bitter disappointment for the Nigerian plaintiffs, their lawyers, and the many activists who have worked diligently to bring this case to justice, the persistence of those involved has helped raise awareness of corporate responsibility in human rights violations.

For now the record stands; there has yet to be a judgment against a corporate defendant in an Alien Tort Statute case. It still remains to be established in law whether the ATS provides a cause of action for aiding and abetting liabilty. But with numerous other suits filed against corporations alleging indirect liability for human rights violations, this key issue is likely to be resolved in the coming years.

Not to pile on the bad news, but it doesn’t bode well that the current nominee for Attorney General, Eric Holder Jr., has argued against this very application of the Alien Tort Statute. (See his brief in the Doe v. Chiquita case here.) His memorandum notwithstanding, an argument made in defense of a client should not necessarily be viewed as a foreshadowing of Justice Department policy.

The case law for these corporate Alien Tort claims still needs to be established incrementally, so every pending case is crucial.

With that in mind, we should remember that in Bowoto v. Chevron, the jury’s ruling was based on the facts presented; they were not making a judgment on a matter of law. That’s why the appeals process will be so important in this case. In a perfect world, the future would’ve looked like this: the jury finds for the plaintiffs; Chevron appeals on an argument that indirect liability is not a justiciable violation of international law and thus not subject to ATS claims; the 9th circuit denies the appeal; and corporate liability for human rights violations is one step closer to solid case law.

Unfortunately, that didn’t happen.

But let’s keep perspective here–10 years of work on this case has not been wasted. The fact that the case withstood years of legal challenges and made it this far is a testament to the growing power of human rights litigation in the United States.

In the words of Michael Watts, professor at UC Berkeley:

“Regardless of the verdict, the Bowoto v. Chevron case represented a watershed in terms of corporate accountability. The details of the Nigerian case – of human rights abuses in the global operations of the oil and gas industry – can be replicated many times over in different industrial sectors in different parts of the world. Now communities around the world know that they have recourse to legal mechanisms to bring corporations that violate their human rights to justice.”

You can read co-counsel EarthRights International’s statement here.

Avoiding the Ad Hominem

In Commentary on November 26, 2008 at 3:16 pm

Last night, in an insomniac moment, I felt like adding a personal note to this blog. While my sympathies are clearly with the plaintiffs, I’ve always aimed to give a fair account of the defense counsels’ actions and arguments. No matter how critical I may be of Chevron’s handling of the affair-and some of their legal strategies-I wouldn’t want that criticism to be misconstrued as an attack on any of the attorneys on Chevron’s legal team. Legal arguments are there for the attacking, and the attorneys from Jones Day have provided a formidable defense that invites challenge.

Chevron’s attorneys have been doing their job and doing it well: defending their clients. I have great respect for their work and for the attorneys themselves-in fact, I’ve been following another major trial, U.S. v. Holy Land Foundation, in which John Cline from Jones Day defended a Palestinian-American philanthropist now convicted of financing terrorism through his support for Hamas. Read about the case here and full coverage here. Mr. Cline is an ace at cross-examination and it would have been great to see him at work in that case.

So I’d like to thank both legal teams for their work and for keeping things interesting.

Lastly, there’s another reason why we should thank the Jones Day attorneys for their work. The legal terrain of the Alien Tort Statute is still undiscovered country; when these cases get subjected to a vigorous defense, human rights lawyers learn more about how such claims operate, what defenses will be raised against them, what unforeseen rules or doctrines can be brought to bear on them. In order for the case law to be solidified, it has to be tempered in the adversarial process. So thank you adversaries…

A Good Article

In For Further Reading on October 28, 2008 at 4:22 pm

On law.com.

This piece does a nice job laying out some of the pertinent legal issues in the case. Check it out here.

Chimène Keitner on Bowoto v. Chevron

In For Further Reading on October 28, 2008 at 5:42 am

A great post on IntLawGrrrls by UC Hastings professor Chimène Keitner here.  And a link to the abstract for her paper Conceptualizing Complicity in Alien Tort Cases in the Hastings Law Journal. 

Alright, off to downtown now…