Corporate Accountability Seminar in Quito, Ecuador

On April 2 and 3, 2013, academics, professionals, and law students gathered at Pontificia Universidad Católica del Ecuador (Católica), one of Ecuador’s leading universities, for a seminar on corporate responsibility for human rights and environmental violations.  Católica,  the NGO La Fundación Regional de Asesoría en Derechos Humanos (INREDH), and Conrad & Scherer’s Quito office organized the seminar. 

With Católica’s David Cordero moderating on April 2, Pablo Fajardo spoke of the decades-long struggle by Ecuadorians from the Amazon region against Chevron in relation to environmental contamination.  Fajardo, one of the lawyers for the Ecuadorians, gave an impassioned talk about the massive damage to the Amazon, the long and convoluted lawsuit against Chevron, and the Ecuadorians’ efforts to enforce the multi-billion dollar judgment they won in Ecuadorian courts.  Fajardo noted how the Ecuadorians are trying to enforce the judgment in Argentina, Canada, and Brazil, and also mentioned (without giving any details) that similar efforts in other countries were on the horizon. 

IRAdvocates’ Eric Hager joined Fajardo as a panelist and focused on the Alien Tort Statute (ATS).  Despite its notoriety in certain legal circles in the U.S., Ecuadorian lawyers generally have not heard of the ATS.  Its obscurity is somewhat odd considering that Ecuadorians have pressed ATS claims in U.S. courts in the past.  Describing the ATS to an audience accustomed to the civil law system is a challenge, particularly because the ATS is a one-sentence statute enacted in the eighteenth century that is dependent on the common law for its contours.  Not surprisingly, the audience was particularly interested in hearing about the ATS issues that the Supreme Court is poised to decide in Kiobel v. Royal Dutch Petroleum.

Verónica Yuquilema of INREDH moderated the panel on April 3, where Católica professors Dunker Morales and Mario Melo joined Conrad & Scherer’s David Garcés.  Garcés led off with a discussion of immunity of government officials in U.S. courts.  Government official malfeasance frequently accompanies corporate complicity in human rights violations, so the review of the challenges posed by immunity doctrines was highly relevant.  With a focus on the Foreign Sovereign Immunities Act and key cases like Yousuf v. Samantar, Garcés provided a concise history and overview of this evolving area of law. 

Next, Dunker Morales discussed damages under Ecuadorian law, a fascinating subject given Ecuador’s nascent tort system.  Relying on the seminal case of Florencia Andrade v. Conelec, Morales explained the nuances of damages actions against government entities in Ecuador.  Finally, Mario Melo concluded the panel with a discussion of state responsibility for human rights violations caused by non-state actors, such as corporations.  Melo drew on his experience of successfully representing the Sarayaku community before the Inter-American Court of Human Rights, which found Ecuador responsible for allowing a multinational oil company to place explosives throughout Sarayaku territory. 

At the end of the discussion, an audience member asked the panelists why the Ecuadorians involved in the Chevron litigation had never initiated a petition in the Inter-American System.  (that question echoed one directed to Pablo Fajardo the night before about why PetroEcuador had not been sued for their role in polluting the Amazon.)  Mario Melo noted that victims sometimes seek redress before different tribunals, but that those litigating civil suits could still petition the Inter-American System (and vice-versa).  Melo’s response demonstrates that, while multiple parties may be responsible for human rights violations, one forum may not provide a remedy against them all.  To hold complicit corporations accountable, civil suits may be the best alternative, but to hold States accountable, the Inter-American System may be the preferred route.  Given that the two-day seminar’s goal was to explore the legal framework for corporate responsibility for human rights and environmental violations, Melo’s insightful comment on this issue was a fitting end.