Some Cautionary Notes on the “Chevronization” of Transnational Litigation
Christopher A. Whytock, Some Cautionary Notes on the “Chevronization” of Transnational Litigation, 1 Stan. J. Complex Litig. 467 (2013).
In 1993, residents of the Lago Agrio region of the Ecuadorian Amazon sued Texaco, Inc. alleging extensive environmental damage and personal injuries caused by Texaco’s oil extraction operations there. The U.S. District Court for the Southern District of New York dismissed the suit on forum non conveniens grounds in favor of the courts of Ecuador, and the U.S. Court of Appeals for the Second Circuit affirmed in 2002. Meanwhile, Chevron Corp. had acquired Texaco in 2001. After the forum non conveniens dismissal, the Lago Agrio plaintiffs sued Chevron in an Ecuadorian court, which entered a $17.2 billion judgment against Chevron. Since then, the parties have been engaged in an extensive litigation and public relations battle over the enforcement of the judgment, a battle that has reached beyond the United States and Ecuador to countries including Argentina, Brazil and Canada.
Although the Chevron-Ecuador case raises many interesting legal issues, this Essay sounds a note of caution about the lessons of the case for transnational litigation. On the one hand, as Part One argues, the case usefully highlights two important transnational litigation trends: the growing multipolarity of transnational litigation and the increasing interaction between the transnational litigation system and other international legal sub-systems. On the other hand, as Part Two argues, the lessons of the Chevron-Ecuador case for law reform are, and should be, limited. Judges, scholars and policymakers may understandably feel pressure to push the law in a particular direction in order to address perceived imperatives that are specific to the Chevron-Ecuador case. But this would risk bypassing the careful evidence-based deliberation needed for sound law reform. The Essay illustrates this risk using examples from the law governing the enforcement of foreign country judgments. The overarching argument is this: Judges, policymakers and scholars should use caution to avoid unduly “Chevronizing” the law of transnational litigation.