The Chevron precedent

A precedent-setting case is trudging further into juridical no man’s land with corporate eyes following closely.

Plaintiff lawyers in Bowoto v. Chevron Corp. delivered arguments on 14 June before the Ninth Circuit US Court of Appeal in the last instalment before a ruling is handed down.

Oil giant Chevron is again facing off against Nigerian activists and their families, represented by lawyers from EarthRights International (ERI) and the Center for Constitutional Rights, among other firms.

The appeal is pending but the case is already a landmark.

The Bowoto case is the legal reaction to Chevron’s role in a 1998 protest by Nigerian community activists in the Niger Delta. The unarmed demonstrators boarded an oil platform and adjacent barge, property of subsidiary Chevron Nigeria Ltd, in protest over the environmental and economic damage caused by oil production in the region. The activists were attacked on 28 May by Nigerian authorities ferried to the floating protest by the oil corporation. Two men were killed and several more protestors injured. Three others claim detention and torture.

It is alleged Chevron was complicit in the attack and its aftermath by knowingly escorting a belligerent Nigerian police corps, a claim that Chevron denies.

The case was first filed in 1999 under lead plaintiff Larry Bowoto representing several plaintiffs and their families, including Bassey Jeje who was shot and injured and Bola Oyinbo, allegedly tortured in captivity. Bowoto was also shot and retains injuries, having lost the use of his fingers on one hand, said plaintiff co-counsel Bert Voorhees.

Initial legal action included several state of California tort claims as well as claims under the federal Alien Tort Claims Act (or Alien Torture Statute (ATS)), the Torture Victims Protection Act (TVPA) and the Racketeer Influenced and Corrupt Organizations Act. After nearly 10 years of pre-trial motions wherein many claims were dropped by a pre-trial judge, the case finally debuted in trial in October 2008 and a decision was handed down on 1 December the same year. The nine-bench jury decided in favour of Chevron, clearing the corporation of any liability under the various claims.

It was a defendant’s victory, but civil society groups and legal experts still label the case a milestone in advancing corporate accountability. For that, multinational players will closely be following the appeal, said Marco Simons, co-counsel for the plaintiffs and legal director of ERI, especially given the precedents it has already set.

The Bowoto case is the first time the multinational magnate Chevron USA Inc. has been successfully taken to a US court for the actions of an overseas subsidiary.

‘Chevron has a very intricate structure, used in part to try and shield itself from liability,’ Simons said. The case has effectively scrapped this corporate strategy.

More broadly, the Bowoto case is the first time any US corporation has faced a domestic jury at trial in a civil suit for actions against indigenous protestors abroad.

The case also broadens the recourse for victims of human rights abuse by American corporations, who can seek redress in US courts under the aiding-and-abetting theory used in Bowoto v. Chevron Corp. that a corporation can be held liable as a third party.

Even where courts have already tread, the Bowoto case is still only one of a handful.

‘This is one of the few cases to allow for corporate violations of international law to go to trial period,’ said Simons. ‘This makes it a victory of sorts.’

Two international law suits filed against Chevron – the ATS and the TVPA – are powerful tools for victims of corporate crime but they are rarely court-inducted; often trial judges approve motions to drop these international law claims on a lack of applicability.

The ATS is a US law that lets foreign citizens bring claims to US courts for damages done outside of the country. Claims are rarely upheld however, because judges have narrowly interpreted how the ATS is applied.

This happened in a 1993 class action suit against Chevron and subsidiary Texaco, representing some 30,000 residents in the Amazon according to Amnesty International. The case was dropped by the US courts and palmed off to Ecuador where it is still ongoing. Other corporations domestically unscathed after US courts dismissed ATS claims include Talisman Energy Inc., the Southern Peru Copper Corporation and Coca-Cola.

While claims under the ATS against corporations have made it to trial, foundational case law for these suits is scant because even where a trial judge approves an ATS claim, settlements are frequently made out of court.

In 2007 lawyers launched a suit against produce giant Chiquita, in what became Doe v. Chiquita Brands International Inc., for allegedly funding Colombian terrorist organisations to defend its lucrative banana plantations, resulting in the deaths of 173 Chiquita workers and union activists. The US-designated terrorist groups that plaintiffs claim were armed by Chiquita are the United Self-Defense Committees of Colombia (AUC), the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN).

The suit was successfully brought to court, but the barren case law for ATS claims retains its scarcity; on one count of doing business with a terrorist organisation Chiquita chose to settle in a deal with victims for US$25 million instead of facing a jury.

In the Bowoto case against Chevron, the ATS claims were eventually denied by the District Court, but their court appearance was still a happy result for plaintiffs, said Simons.

‘The ATS has a number of important features. It allows acts to be called by their true names,’ Simons said.

Instead of ‘battery’ or ‘wrongful death’ under a civil tort claim, the ATS brings labels like ‘torture’ or ‘extrajudicial killing’ to court.

‘These labels much more accurately describe what actually happened to the victims.’

With the recent appeal, this string of legal landmarks could continue.

A CORPORATE INDIVIDUAL

Arguments delivered on 14 June are part of a Bowoto v. Chevron appeal launched by plaintiffs to challenge the trial on numerous grounds, including errors in jury instruction, evidentiary errors and the wrongful dismissal of claims under the ATS.

But the notable argument on appeal with the potential to further corporate accountability, Simons said, is the challenge of a key interpretation in the TVPA of the word ‘individual’. At trial the District Court judge found a corporation is not an individual and can therefore not be sued under the TVPA.

‘This is significant. Most of the important legal precedents in this case have already been set … this is the only rule of law question [in the appeal].’

The TVPA is a civil law that lets citizens file a suit against another party that, acting for a foreign nation, commits torture or extrajudicial killing.

In Bowoto v. Chevron Corp. the TVPA claim was thrown out. The word ‘individual’, according to the trial judge, does not describe the multinational Chevron.

‘We don’t think that’s a sensible construction of the law,’ said Theresa Traber, co-counsel for the plaintiffs who delivered the arguments for appeal.

Traber said US courts have been divided on the interpretation, and appeal courts have been reluctant to give a firm definition.

Few courts of appeal have even been faced with the question, Simons said.

‘This could be very significant for others.’

Regardless of the pending appeal and a ruling for or against the Nigerian plaintiffs, the rights of activists outside the US remain advanced by this case, said Michael Watts, a professor at University of California in Berkeley in a case blog that follows the trial proceedings.

‘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.’

The US Court of Appeal is one more tentative step in the direction to hold corporations to account.

BROUGHT TO YOU BY PAMBAZUKA NEWS

* Dana Wagner is a recent journalism and political science graduate from Carleton University.
* Please send comments to [email protected] or comment online at Pambazuka News.