Tag Archives: Kiobel

Latest Developments, February 27

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In the latest news and analysis…

OccupyLSX dismantled
Reuters reports that police have dismantled the Occupy London “anti-capitalist camp” after more than four months of protest outside St Paul’s cathedral.
“The [City of London] Corporation won its right to remove the camp after arguing in court that it hindered planning control, attracted crime, and interfered with a public right of way and the rights of those who wished to worship in the cathedral.
It won a case in the High Court last month for the tents to be taken away. The protesters went to the Court of Appeal arguing that their case had ‘unique and global’ significance but the appeal was rejected.
The protesters could still apply to the European Court of Human Rights.”

Latest from WikiLeaks
WikiLeaks has begun releasing over 5 million emails from Stratfor, a Texas-based company it says “fronts as an intelligence publisher, but provides confidential intelligence services to large corporations” and government agencies.
“The material shows how a private intelligence agency works, and how they target individuals for their corporate and government clients. For example, Stratfor monitored and analysed the online activities of Bhopal activists, including the “Yes Men”, for the US chemical giant Dow Chemical. The activists seek redress for the 1984 Dow Chemical/Union Carbide gas disaster in Bhopal, India. The disaster led to thousands of deaths, injuries in more than half a million people, and lasting environmental damage.”

Class morality
The Globe and Mail reports on new findings that suggest the rich are more likely to behave unethically than the poor.
“In results from seven separate studies, they found a consistent tendency among those they termed ‘upper-class’ to be more likely to break the law while driving, take valued goods from others, lie in negotiations, cheat to increase their chances of winning a prize and endorse unethical behaviour at work.
The reason for the ethical difference was simple, according to the paper being published this week in the Proceedings of the National Academy of Sciences, a leading U.S. science journal. Wealthier people are more likely to have an attitude that greed is good.”

Legal opinions
The Huffington Post’s Mike Sacks writes that European governments do not share the Obama administration’s enthusiasm for equating “natural and judicial persons” when it comes to liability for crime committed overseas.
“In an ironic twist, the conservative [US Supreme Court] justices, who loudly resist being influenced by foreign legal trends, can look to European interpretations of U.S. law as the best cover for now discovering corporate immunity from international human rights allegations. In briefs filed in support of Royal Dutch Petroleum, the United Kingdom and Netherlands governments wrote that they have long opposed “overly broad assertions of extraterritorial civil jurisdiction” based on foreigners’ claims against foreign defendants for alleged activities in foreign countries. The German government took a similar stance. These positions arose out of all three nations’ express preference for multilateral agreements to resolve such problems, rather than unilateral action by any one country’s courts.”

Burn Berne
Kent Law School’s Alan Story believes there is little hope of  “a ‘balanced’ intellectual property agenda across the world” as long as the global copyright system is governed by the Berne Convention.
“In fact, the Berne Convention, the main provisions of which were drafted by a handful of industrialised countries in 1886 and is essentially unchanged in ideology or substantive assumptions since then, is one of the most lopsided and unequal international legal instruments one can imagine. Almost a decade ago in my Burn Berne article, I wrote that, for the peoples of the global South, Berne ‘operates as Western-based and unreconstructed colonial relic which they had no role in drafting and which was imposed on them without consultation in an earlier era’ ; I concluded the leading international copyright convention was both ‘unbalanced and unbalanceable.’
In 2012, I hold the same view. It is both illusory and delusory to think that a so-called balanced or re-balanced Berne and /or global copyright system can constructed; it is not only wishful, but also wistful, thinking and is based on a naive understanding of how this system operates, as well as its ideology and power relationships within it.”

Fair trade
The Guardian’s Felicity Lawrence argues the Fairtrade movement is guilty of making its case in the language of philanthropy, not rights.
“By doing that it throws responsibility for making sure farmers and workers are fairly paid back on to consumers – who may or may not be able to afford to take their morals shopping, especially in a recession – rather than on the big businesses, the international traders, the manufacturers and the retailers that make substantial profits out of the goods they sell.
Fair trade alone cannot address the core problem of excessively concentrated markets in which a handful of overpowerful transnational corporations dictate terms of trade and suck profits up into their own coffers.
What is needed for really fair trade is a more equitable distribution of the money in the chain. That will only be achieved with a shift in power which requires political action.”

EU overfishing
The Guardian reports that Spain is lobbying hard for stricter new fishing rules not to apply to EU boats operating outside European waters, despite evidence that current practices are overtaxing ocean resources and hurting the economy and diet of African coastal populations.
“According to the [Greenpeace] study, the EU paid €142.7m to secure the fishing rights for just one fleet of 34 giant factory trawlers to work in Mauritanian and Moroccan waters between 2006 and 2012. Of this, EU taxpayers paid €128m, and the companies only €14m.
The report shows that these 34 vessels catch 235,000 tonnes a year of fish from the Moroccan and Mauritanian waters, leaving little for the local fishers. Mauritania is one of seven Sahelian countries to have declared a food emergency in the last month and appealed for emergency aid.”

Closing loopholes
UC Berkeley’s Robert Reich cannot understand why US President Barack Obama is talking about cutting corporate taxes.
“Corporate taxes have plummeted as a share of total federal revenues. In 1953, under President Dwight Eisenhower, a Republican, corporate taxes accounted for 32 per cent of total federal tax revenues. Now they’re only ten per cent.
But now the federal budget deficit is ballooning, and in less than a year major cuts are scheduled to slice everything from prenatal care to Medicare. So this would seem to be the ideal time to raise corporate taxes – or at the very least close corporate tax loopholes without lowering corporate rates.”

Latest Developments, February 26

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Interpreting corporate personhood
In a New York Times op-ed carrying the headline “Should Corporations Have More Leeway to Kill Than People Do?,” the Center for Constitutional Rights’s Peter Weiss writes about what is at stake in a US Supreme Court case, due to begin this week, pitting Nigerian plaintiffs against oil giant Shell.
“A decision affirming that Shell should go unpunished in the Niger Delta case would leave us with a Supreme Court that seems of two minds: in the words of Justice John Paul Stevens’s dissent from Citizens United, it threatens “to undermine the integrity of elected institutions across the nation” by treating corporations as people to let them make unlimited political contributions, even as it treats corporations as if they are not people to immunize them from prosecution for the most grievous human rights violations.”

Don’t be evil
The Center for Global Development’s Owen Barder argues “we should all be worried” by a new agreement between Google and the World Bank that aims to promote development through sharing geoinformation.
“The problem is the way the data is licensed: once any data goes in to Google Map Maker, it all becomes the property of Google. If governments and citizens choose to use the Google Map Maker platform to contribute their information, then the data will only be available through Google’s own mapping system, and the data will be available under conditions specified by Google. At least, that is what we believe: ironically, given that both the Bank and Google are trying to market themselves as leaders in transparency and openness, they have refused to publish their legal agreement.”

Apple’s excess money
The Associated Press reports that Apple’s CEO Tim Cook believes his company has “more [money] than we need” and may be considering paying dividends to shareholders, a move likely to be unpopular with those concerned over labour conditions in Apple’s supply chain.
“While shareholders waited in a 40-minute line to get inside the meeting at Apple’s Cupertino headquarters, a few protesters carried signs urging the company to ensure that workers building its products in Taiwanese and Chinese factories are paid more and treated humanely. ‘Stop iSweatshop,’ one sign implored. Another stated: ‘iWant an ethical phone.’ No questions about the conditions in Apple’s overseas factories were posed during the meeting.”

Migrant rights
The Ecologist reports on the “exploitation and squalor” endured by African migrants working in Italy to supply oranges for companies such as Coca-Cola.
“Campaigners are now calling on multinational food and drink firms purchasing orange ingredients from the region to help address the problem. Italy’s largest farmers association says it has written to several companies – including Coca Cola, manufacturer of the Fanta orange drink – complaining that prices paid for orange concentrates are unfair, and fostering unpleasant conditions.
…
There’s thought to be around 50,000 migrants, mainly Africans, a few Eastern Europeans, currently existing like this across Italy.”

46 ideas
SHERPA, a French non-profit focused on economic justice, has released the English version of a report containing 46 proposals “to bring regulation of multinational companies to the top of the political agenda in 2012”.
“46 Proposals explains in non-technical terms the mechanisms giving rise to both corporate impunity and citizens’ suspicion of the globalized economy and financial markets. The objective is to contribute to the debate over corporate accountability and suggest concrete solutions. Legal tools are not meant to weigh multinational corporations down, but to help turn CSR into a reality.”

Human rights vs. investment
The American Lawyer’s Michael Goldhaber writes that the long-running legal battle between Ecuadorian plaintiffs and oil-giant Chevron has taken another turn following an international arbitration panel’s call for Ecuador’s government to block a court decision awarding $18 billion in damages.
“However, on February 17 the intermediate Ecuadorian appellate court issued a four-page order… According to Chevron’s translation, the court rejected the arbitrators’ order as offensive to Ecuador’s Constitution as well as to the Inter-American Convention on Human Rights. ‘A simple arbitration award, although it may bind Ecuador, cannot obligate Ecuador’s judges to violate the human rights of our citizens,’ wrote the court. ‘That would not only run counter to the rights guaranteed by our Constitution, but would also violate the most important international obligations assumed by Ecuador in matters of human rights.’
…
Ecuador may continue to ignore the arbitrators’ declarations if it wishes to risk the consequences for foreign investment.”

The scramble for Somalia
The Guardian reports on concerns that the sudden international interest in Somalia could be a double-edged sword for the country’s inhabitants.
“The promise of stability coupled with the apparent discovery of oil reserves could help to rebuild this poverty-stricken country. But experts warn the west must not pillage the newly found resources of Somalia, or risk massively escalating the conflicts already in the region. Kenyan, Ethiopian and Ugandan soldiers are in Somalia fighting al-Shabaab and each country has vested interests in Somalia’s future. Already a new militia, led by the unlikely-sounding Sheik Atom, has formed around Puntland’s oilfields.”

Arab caricatures
The Council on Foreign Relations’s Ed Husain writes about the worrying tone of  pronouncements made on the Middle East by the leading Republican candidates for the American presidency.
“To date, not a single Republican candidate has spoken warmly of Arabs and congratulated them for seeking freedom and democracy, nor dedicated US support for and solidarity with the Arab uprisings. Instead, they continue to view the Arab world through outmoded lenses. The stirrings in Arab streets are about dignity, freedom, jobs, healthcare, housing and transparent government. But the Republican contenders continue to view the Middle East through four prisms: Israel’s security, Iranian nuclear ambitions, oil supplies to America, and countering terrorism. This mismatch between understanding reality in the region and the misplaced priorities among Republican contenders leads to the gap in knowledge and flawed analysis only too apparent in this debate.”

Latest Developments, December 21

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Corporate liability
Lawfare reports the Obama administration has filed a brief with the US Supreme Court supporting Nigerian plaintiffs in the Kiobel lawsuit against oil-giant Shell, arguing corporations can be held liable under federal law for abuses committed abroad.  
“The brief –signed by State Department Legal Adviser Harold Koh and (somewhat surprisingly) by Commerce General Counsel Cameron Kerry in addition to Solicitor General Don Verrilli – argues that the question of corporate liability under the Alien Tort Statute is governed by federal common law, not by international law, although international law “informs” the issue.  And the brief goes on to argue that under federal common law, corporations may be held liable for violations of both domestic and international law: “[C]orporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our ‘legal culture.’”  The brief states that the United States is not aware of any international law “norm” that would prohibit corporations from being sued for violations of international law.”

Nationalization
Agence France-Presse reports a provincial branch of South Africa’s ruling African National Congress party has voted in favour of a resolution calling for land expropriation and mine nationalization. 
“ ‘All productive land must be nationalised. Compensation must not be paid on the land itself but on improvements. The price must be determined by the state through the state evaluator,’ the party’s Limpopo provincial chairman Soviet Lekganyane was shown as saying by the eNews channel.
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‘We reiterate our call for nationalisation of mines and other key strategic sectors like Sasol and ArcelorMittal,’ Lekganyane was quoted as saying by the Sapa news agency, referring to major oil and steel activities.”

Air battle
The Associated Press reports that an EU court has upheld a law charging airlines flying to Europe for their carbon emissions but a US trade group, Airlines for America, is vowing to continue fighting the “unilateral” and “counterproductive” measures. 
“The European Court of Justice in Luxembourg dismissed arguments that imposing the European Union’s cap-and-trade carbon credits program on flights to and from European airports infringes on national sovereignty or violates international aviation treaties. U.S. and other non-European airlines had sued the EU, arguing that they were exempt from the law.”

Selling development
The Institute of Development Studies’ Spencer Henson raises some concerns over NGO efforts to “sell development” by promoting the idea that buying certain products will benefit poor people half a world away.
“First, it is very much based on the notion of benevolence of the (powerful) rich towards the (powerless) poor. UK consumers can decide how to spend their money at Christmas whereas the poor have little money to spend on anything. Further, as a wealthy donor the consumer can decide who is ‘deserving’ of their charity, however they might judge this.
Second, and more importantly, efforts to sell development do little or nothing to challenge the very reasons that people are poor…and the need for benevolence by the rich in the first place. Thus, how is it that such global inequality exists, and what can be done about it? The act of buying a goat, a charity Christmas card or a handicraft fails to challenge the status quo. Some would even argue that buying development perpetuates the very systems that make people poor in the first place.”

IFI reform
PIMCO’s Mohamed El-Erian argues the economic convergence that is changing the previously Western-dominated global order is unpredictable and requires “deep reform of the multilateral system” and its institutions.
“Multilateral institutions, particularly the IMF, have responded by pumping an unfathomable amount of financing into Europe. But, instead of reversing the disorderly deleveraging and encouraging new private investments, this official financing has merely shifted liabilities from the private sector to the public sector. Moreover, many emerging-market countries have noted that the policy conditionality attached to the tens of billions of dollars that have been shipped to Europe pales in comparison with what was imposed on them in the 1990’s and early 2000’s.”

Food speculation
The Guardian speaks to a food expert whose research predicted the Arab Spring and forecasts high food prices will trigger global riots and revolutions in the next two years unless something is done to rein in speculation. 
“[The New England Complex Systems Institute’s Yaneer Bar-Yam] believes the time has come for global regulators to step in and manage the global market. Their first task would be to guarantee transparency and make public information previously shrouded in secrecy – such as who holds the biggest stakes in global commodities. Transparent accounting practices would have made the disappearance of $1.2 bn worth of customer money from the books of MF Global less a matter of sleight of hand and more a matter of international crime.
The second part of the speculation solution hinges on a return to traditional position limits in commodities, limits enforced by international laws geared to stop bankers, hedge funds and sovereign wealth funds from going long on the world’s food supply and, in effect, gambling on hunger.”

Charter cities
Oxfam’s Duncan Green expresses concern over the life-size radical experiment with charter cities Honduras is about to undertake. 
“On the basis of the Economist piece, at least, the Trujillo charter city looks like a mess. The government is going to bypass constitution, laws etc, outsource the lot to private interests and rely for good governance on a commission of overstretched VIPs. If the hyperactive [Center for Global Development president Nancy] Birdsall is typical, they will have so many other commitments that they really are not going to be able to invest the time to micromanage a potentially chaotic period of institution-building. I emailed Nancy about this and she replied that yes, there are big risks, but the world needs more experiments like this not least because ‘we don’t know in the development community how to ‘produce’ good governance’. She points out that there are resources, e.g. to pay at least one aide per member of the transparency board. But that still seems like a pretty skeletal arrangement and many of the criticisms I quoted in my original post apply in this case too. Got a bad feeling about this one.”