Comments on: The Relationship Between Enforcing Judgments and Denial of Justice Claims? http://kluwerarbitrationblog.com/blog/2009/10/25/the-relationship-between-enforcing-judgments-and-denial-of-justice-claims/ An optional catch phrase or slogan goes here Thu, 29 Jul 2010 09:42:06 -0500 http://wordpress.org/?v=2.8.6 hourly 1 By: Luke Eric Peterson http://kluwerarbitrationblog.com/blog/2009/10/25/the-relationship-between-enforcing-judgments-and-denial-of-justice-claims/comment-page-1/#comment-8584 Luke Eric Peterson Mon, 26 Oct 2009 16:50:44 +0000 http://kluwerarbitrationblog.com/?p=1199#comment-8584 Roger is not far off in speculating as to the relationship of all of this to investment treaty arbitration claims. The Shell Oil Company has also been held liable by the Nicaraguan courts in relation to harms imputed to the agro-chemical DBCP. In the aftermath of a multi-million dollar judgment against Shell, certain trademarks of the company were seized - and threatened with being auctioned off - so as to help pay the judgment. Notably, Shell responded by having two of its Dutch-based subsidiaries bring a claim against Nicaragua under the Netherlands-Nicaragua BIT. The claimants alleged that the "expropriation" of their intellectual property was unjustified, as the Dutch subs were the real owners of these trademarks - rather than the Shell entity which was the defendant in the Niacaraguan suit. More apposite for purposes of Roger's post, the two Shell subs also professed to be the victim of a denial of justice in Nicaragua. While the Shell claim was settled the next year, after the Nicaraguan Government backed off on the IP seizure, it's certainly not far-fetched to expect other denial of justice claims to arise. As the other commenter to this post suggests, it will be particularly interesting to see to what extent arbitrators take account of the fact that defendants do sometimes invoke forum non conveniens at the outset of these cases, so as to have the cases heard in developing countries - but later profess concern as to the lack of due process provided by such courts. (In the Chevron-Ecuador dispute cited by Roger, there are two BIT arbitrations now running; and in the first of these cases, the two sides have sparred over this very issue. Ecuador accuses Chevron of lauding the Ecuadorian courts in order to have claims tossed out of US courts, but then souring on those same courts when it is deemed expedient; meanwhile Chevron retorts that the Ecuadorian courts have gotten much worse in recent years, and that a fair trial is no longer possible there.) Roger is not far off in speculating as to the relationship of all of this to investment treaty arbitration claims.

The Shell Oil Company has also been held liable by the Nicaraguan courts in relation to harms imputed to the agro-chemical DBCP. In the aftermath of a multi-million dollar judgment against Shell, certain trademarks of the company were seized – and threatened with being auctioned off – so as to help pay the judgment.

Notably, Shell responded by having two of its Dutch-based subsidiaries bring a claim against Nicaragua under the Netherlands-Nicaragua BIT. The claimants alleged that the “expropriation” of their intellectual property was unjustified, as the Dutch subs were the real owners of these trademarks – rather than the Shell entity which was the defendant in the Niacaraguan suit.

More apposite for purposes of Roger’s post, the two Shell subs also professed to be the victim of a denial of justice in Nicaragua.

While the Shell claim was settled the next year, after the Nicaraguan Government backed off on the IP seizure, it’s certainly not far-fetched to expect other denial of justice claims to arise.

As the other commenter to this post suggests, it will be particularly interesting to see to what extent arbitrators take account of the fact that defendants do sometimes invoke forum non conveniens at the outset of these cases, so as to have the cases heard in developing countries – but later profess concern as to the lack of due process provided by such courts. (In the Chevron-Ecuador dispute cited by Roger, there are two BIT arbitrations now running; and in the first of these cases, the two sides have sparred over this very issue. Ecuador accuses Chevron of lauding the Ecuadorian courts in order to have claims tossed out of US courts, but then souring on those same courts when it is deemed expedient; meanwhile Chevron retorts that the Ecuadorian courts have gotten much worse in recent years, and that a fair trial is no longer possible there.)

]]> By: Gilles Cuniberti http://kluwerarbitrationblog.com/blog/2009/10/25/the-relationship-between-enforcing-judgments-and-denial-of-justice-claims/comment-page-1/#comment-8549 Gilles Cuniberti Mon, 26 Oct 2009 08:19:00 +0000 http://kluwerarbitrationblog.com/?p=1199#comment-8549 Interesting post, and interesting way of looking at things: I would have thought that Dole benefited from a denial of justice. It was the defendant, and I understand that before resisting enforcement of the foreign judgment, it had successfully argued against the jurisdiction of US courts on conveniens grounds. Interesting post, and interesting way of looking at things: I would have thought that Dole benefited from a denial of justice. It was the defendant, and I understand that before resisting enforcement of the foreign judgment, it had successfully argued against the jurisdiction of US courts on conveniens grounds.

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