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US Federal Judge Lewis Kaplan’s bias in favor of Chevron may have led him to drastically overstep his authority, according to several international law experts from around the world who have asked the Second Circuit Court of Appeals in New York to dissolve Kaplan’s preliminary injunction against enforcement of an $18 billion verdict against the company.
Just before the historic verdict came out of an Ecuadorean court last February finding Chevron guilty of polluting the Amazon and ordering the company to pay $18 billion for cleanup, Judge Kaplan issued a preliminary injunction aimed not only at barring enforcement of the verdict in the United States, where Chevron is based, but barring enforcement anywhere in the world.
It is this “worldwide injunction” that has drawn the fire of international law experts, who say it is an “unlawful” and “futile” order. The Ecuadorean plaintiffs are appealing the injunction, and several world-renowned experts have come forward to file briefs with the Second Circuit Court of Appeals detailing the ways in which Kaplan’s order drastically overreaches the bounds of his jurisdiction.
In one of the briefs, Burt Neuborne, an extremely well-regarded human rights and civil liberties lawyer who is also the Legal Director of the Brennan Center for Justice at NYU Law School, says that Kaplan’s worldwide injunction:
(1) heaps scorn on the Ecuadorian judiciary on the basis of an unfairly truncated record and in the absence of a representative of the Republic of Ecuador; (2) proceeds in the absence of a representative of the indigenous peoples of Ecuador who have suffered the alleged underlying environmental injury and who will be the beneficiaries of any Ecuadorian judgment; and (3) seeks to pre-empt the ability of judges everywhere else in the world to decide for themselves whether to respect and enforce the final judgment, if any, of the Ecuadorian courts.
According to Neuborne, the perils of Kaplan’s overreaching decision are severe, as it “sends an unmistakable message of American judicial arrogance to the rest of the world that can only result in increased levels of reciprocal judicial suspicion and hostility, with negative consequences for the transnational rule of law.”
A group of 16 legal experts from around the world have also called for the Second Circuit Court of Appeals to overturn the injunction, saying that it “constitutes an internationally unlawful attempt to intervene in the domestic legal affairs of Ecuador” and is “premature” because the appeals process in Ecuador is ongoing.
The group of experts, led by Donald K. Anton of the Australian National University College of Law in Canberra and including public international scholars from Finland, Italy, South Africa, Spain, and the United States, also called the injuction “futile” because it can’t bar the Ecuadoreans from going to other countries where Chevron has assets and asking those countries’ courts to rule on the validity of the guilty verdict. Furthermore, the group argues, the order “offends basic standards of international comity because the preliminary injunction high handedly purports to stake out exclusive world-wide jurisdiction.”
The Environmental Defender Law Center, a non-profit that provides free legal representation for poor people in developing countries, has also weighed in, saying that Kaplan’s worldwide injunction is an “exercise of power that district courts do not possess.” Ironically, it was Chevron/Texaco’s legal maneuvering to have the lawsuit moved to Ecuador — the Ecuadorean plaintiffs originally filed in a New York District Court — that has limited Kaplan’s ability to rule on the matter. According to the Center’s brief, “when Chevron convinced this Court to dismiss to a forum outside the U.S. — based on its own calculus that it was more likely to prevail in Ecuador than before a U.S. federal court — it divested the district court of the legal and practical ability to protect Chevron from the enforcement of a judgment against it in third countries.”
What impact, if any, these briefs will have on the Second Circuit Court of Appeals’ decision regarding Kaplan’s injunction is uncertain. But the arguments made in these briefs by some of the world’s top scholars in international law certainly make it clear that Kaplan’s bias for Chevron seems to have blinded him to the finer points of jurisprudence.