Chevron v. Donziger – International Law Professors Amicus Brief: Round Two

On July 8, 2014 an eminent group of international law professors filed their second amicus curiae brief in the epic 20+ years litigation between indigenous Ecuadorians and Texaco/Chevron over environmental destruction and human rights breaches. The brief was lead by Professor Don Anton of the Australian National University, who is appearing as Counsel of Record in the United States Court of Appeals for the Second Circuit where the appeal will be heard.  More details can be found here.  A copy of the brief can be obtained here.

The appeal is this case is collateral to the successful main action by the Ecuadorians, which resulted in a multi-billion dollar judgment against Chevron.  Following the judgment in 2011, Chevron took preemptive action in U.S. Federal Court in order to try to block the recognition or enforcement of a multi-billion dollar Ecuadorian judgement against Chevron. Initially, Chevron obtains a preliminary injunction from the trial court that purported to be world wide in scope and to block any other court in the world from considering recognition or enforcement of the Ecuadorian judgement.  An appeal agains the injunction was made.  This same group of international law professor filed an amicus brief asserting that the injunction was in violation of international legal law and basic considerations of international comity.  The District Court was reversed and its purported worldwide preliminary injunctions was vacated.

In this new appeal, the amici international law professors address important international legal issues associated with the imposition of a worldwide constructive trust by the District Court in it final judgment. In imposing this radical trust for which there is no precedent, the District Court failed to correctly apply principles of international comity and to consider applicable international legal obligations binding on the United States. The amici believe that these failures have resulted in reversible error for the following four reasons.

First, the District Court’s worldwide equitable constructive trust is inconsistent with the Court’s decision in Chevron v. Naranjo, 667 F.3d 232 (2d Cir. 2011) because the impermissible extraterritorial impact of the constructive trust is identical to the impact of the preliminary injunction previously vacated by this Court. Second, the District Court erred in ordering relief that offends international comity. The District Court impermissibly attempts to impose its own terms of exclusive relief in the form of a constructive trust on every other court in the world. It seeks to dictate to the courts of the world what will happen if they recognize and enforce the underlying Ecuadorian judgment. This is an affront to: i) foreign courts that order the Ecuadorian judgment to be recognized and enforced; ii) foreign courts that cannot or would not pronounce on the systemic fitness of a foreign judiciary; and iii) foreign courts that must or might prefer to order different relief. Third, the District Court’s constructive trust cannot be enforced outside of the United States and is therefore an exercise in futility. Because equity will not do a vain or useless thing, the District Court should be reversed. Fourth, the District Court’s extraterritorial constructive trust breaches the international legal obligation of the United States not to intervene in the domestic and external affairs of other states. The extraterritorial application of the constructive trust directly intrudes in to the administration of Ecuadorian justice both internally and externally in places where its judgment might be recognized and enforced.

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