*** When we look at the current societal discourse regarding corporate authority and influence, and in particular in relation to what is commonly defined as the digital revolution, many experts and scholars affirm that we are currently living in a new Gilded Age. The Gilded Age refers to a period of several decades in U.S. history toward the end of the 19th century, which was characterized, at the same time, by great economic growth and blatant political corruption.
During the Gilded Age, the concentration of power by many corporations was so high that their leaders, such as Cornelius Vanderbilt, J.D. Rockefeller, Andrew Carnegie and J.P. Morgan, became ultra-rich businessmen and known as “robber barons”, unscrupulous tycoons who made their fortunes by exploiting the poor working class.
Fast forward one century, despite the myriad changes in the economy and business environments, it seems that the problems and challenges we faced during the Gilded Age are still here. Concentration of power in corporations is still happening, and compared to a hundred years ago, its adverse effects on society are now felt on a global scale. When corporations become powerful enough, they hold the power to sway political agendas and influence government policy, often for their own benefit and to the detriment of the public. The relevance of such a problem emerges clearly where we take into consideration that, at the present time, many multinational corporations have acquired wealth that exceeds that of many countries. Just to make an example, it is possible to mention that in 2020 the U.S. company Walmart generated some 519 billion US dollars in revenues whereas the gross domestic product (GDP) of Poland amounted to around 594 billion US dollars. Such an issue is amplified where several corporations join together to safeguard their interests creating specific advocacy groups for such a purpose. In the article “Corporate America and Mass Shootings: A Tale of Corporate Social Irresponsibility” we discussed the adverse effects that the National Rifle Association of America (NRA), which is backed by the weapon industry, has exerted on American society.
As Sheldon Withehouse, a leading member of the Senate Judiciary Committee, eloquently explains in his book “Captured,” the “big, politically active corporations love having us sit on the couch watching ads paid for by their front groups […] the tentacles of corporate political interference may coil around and through our democracy, at the end of the day the survival of our democratic experiment depends on the active participation of people.”
The situation becomes particularly serious where corporations irresponsibly decide to use their unlimited resources to distort justice targeting individuals that try to counter their unethical or illegal conducts such as whistleblowers, leakers, human rights activists, and even lawyers.
As Prof. Gilbert brilliantly explains in the article “Silencing Human Rights and Environmental Defenders”, thanks to their immense wealth, and the power it generates, corporations may use litigation as a tool to attack the credibility of human rights and environmental defenders and de facto silence them transforming their lives in a judicial ordeal.
Such unethical actions also generate a deterrent effect in that they aim at discouraging other individuals from safeguarding society and interfering with corporate activities. Corporations abuse the legal system to “punish” individuals that have become persona non grata within the corporate world. This irrespective of what it could be the final outcome of the judicial proceeding. The aim here is not to win the court cases but to use the proceedings themselves to inflict an exemplary punishment on the individuals that are forced to participate in them to defend themselves from the instrumentally conceived charges.
Within such a grim scenario, the case of the U.S. environmental human rights lawyer Steven Donziger is becoming emblematic of how unchecked corporate power may distort justice and strike at the heart of the best part of our democratic society (i.e., a society inspired by the fundamental values of justice, fairness, and equality). A few weeks ago, Stephen Danziger was sentenced to six months in prison for contempt of court, which is a misdemeanor. Misdemeanors are petty offenses characterized largely by speed, informality, and law enforcement discretion, which are administrated in ways that depart significantly from the standard due process model of adversarial adjudication. It is not surprising that the way in which misdemeanors are enforced has been depicted as the mechanism through which the criminal system exerts its widest and, in many ways, deepest forms of social penetration and control.
What makes this story disturbing is that Stephen Donziger had to report to jail despite he had already served over 800 days of house arrest for a minor offense.
In order to understand the reasons behind such a blatantly harsh response of the legal system, which is absolutely astonishing, it is necessary to investigate how these events unfolded. It all began because, in 2011, Donziger famously won a landmark environmental case in Ecuador against the oil corporation Chevron for their role in poisoning an area of Ecuadorian indigenous land the size of Rhode Island. Chevron was ordered by an Ecuadorian court to pay $9.5 billion in damages to people blighted by decades of polluted air and water.
Chevron refused to pay or clean up the land, instead, it claimed “shocking levels of misconduct” and fraud by Donziger and the Ecuadorian judiciary, and launched a legal attack targeting Donziger in the United States.
During the relating proceedings, Donziger refused to turn over his computer and cell phone because it included personal data of activists, witnesses and victims that might have been retaliated against. For such a refusal, he was charged with six counts of criminal contempt of court. Although the federal prosecution office declined to bring those charges, the judge appointed a private law firm with ties to Chevron – Seward & Kissel LLP – to prosecute Donziger. Eventually, the U.S. district judge Loretta Preska ruled that Donziger was guilty of the above charges for refusing to hand over evidence in a complex legal wrangle that has pitted the lawyer directly against Chevron, and in a 241-page judgment, the judge affirmed that Donziger had “repeatedly and willfully” defied court orders and that “at stake here is the fundamental principle that a party to a legal action must abide by court orders or risk criminal sanctions, no matter how fervently he believes in the righteousness of his cause.”
On the 17th of September 2021, the UN Working Group on Arbitrary Detention adopted opinion no. 24/2021 in which the Working Group affirmed to be “appalled by uncontested allegations in this case. The charges against and detention of Mr. Donziger appears to be retaliation for his work as a legal representative of indigenous communities.” In the document is also stated that the deprivation of liberty of Steven Donziger is in contravention of several articles of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, and as such it has to be considered as arbitrary.
Also on the 25th of October 2021, Amnesty International issued a statement for “urgent action” asking for the immediate and unconditional release of the lawyer.
Donziger has also received support from several politicians and lawyers. Congresswoman Rashida Tlaib, who has investigated the illegal polluting activities of Chevron, affirmed that “the fight against corporate power and greed is one of the key environmental and economic justice challenges facing our planet.” She also asked “for Attorney General Garland to investigate the unprecedented and unjust legal assault on […] Steven Donziger and to fight back against unchecked corporate power rigging our justice system.”
Also, 205 lawyers have filed a formal complaint pursuant to the Judicial Conduct and Disability Act for potential judicial misconduct in the cases of In re Chevron.
Notwithstanding such a growing and widespread support, Steven Donziger is still enduring such a prolonged legal ordeal inflicted through a court case that cannot even be defined as Kafkaesque in that, although it is characterized by nightmarish settings, differently from the Kafka’s scenarios, here it makes perfect sense. It is the unethical response of a corporate giant, that aims at silencing the lawyer. As he has affirmed in the interview conducted by Dr. Dawn Carpenter on her podcast (at 13:03): “… it kills them when I do interviews, it kills them when I testify in court, it kills them when I speak to law students, or make speeches to the European Parliament as I did recently.” Also, the corporation’s objective is to punish the individual who dared oppose it and in such a way deter other lawyers from doing the same.
This case, which has been described as the first corporate prosecution in U.S. history, is another example of an ongoing pattern of corporations using the legal systems of our democracies to intimidate advocacy organizations and activists.
The similarities of this case with McDonald’s Corporation v. Steel & Morris [1997] where the U.S. fast-food giant McDonald’s tried to silence and punish two activists – Helen Steel and David Morris – during what was labeled as the longest trial in British legal history teach us that the exploitation of our legal system by powerful corporations is clearly an unsolved issue, which is becoming even worst over time.
Our legal systems are still unprepared to face such a threat and to respond effectively to occurrences of conflict of interest and potential institutional corruption. As it has been clarified by the UNODC Special Rapporteur on the Independence of Judges and Lawyers, Diego García-Sayán, corruption has direct damaging consequences in general on the functioning of state institutions, and in particular on the administration of justice. It decreases public trust in justice and weakens the capacity of judicial systems to guarantee the protection of human rights, affecting the tasks and duties of judges, prosecutors, lawyers, and other legal professionals. In particular, corruption undermines the core of the administration of justice, generating a substantial obstacle to the right to an impartial trial, and severely undermining the public trust in the judiciary.
We have not only to intervene immediately to protect Steven Donziger and what he represents but also to develop systems to prevent such abuses, punish the mastermind behind them, and discipline legal practitioners who unethically offer their advice acting as facilitators or enablers.
In cases like this prevention is pivotal. We do not have to forget that corporate main aim may not be to win the cases but to subject individuals to a legal ordeal, which has to serve as a deterrent for others. So, it becomes crucial to intervene before damage is done. As explained in a letter written by six House Democrats “the results of this case will have a lasting impact in the legal practice, suggesting that representation and advocacy can then impede one’s ability to exercise fundamental protections”
SELECT BIBLIOGRAPHY
Baksi C., 2019, Landmarks in law: McLibel and the longest trial in British legal history, The Guardian (link).
Budryk Z., 2021, Six House Democrats ask Garland to review case of lawyer placed under house arrest over Chevron suit, The Hill (link).
Carpenter D., 2021, Capitalism In Service to Human Rights, What Does It Profit Podcast, (link).
García-Sayán D., 2017, Corruption, Human Rights, and Judicial Independence, UNODC (link).
Goodman A., 2021, Lawyer Who Sued Chevron over “Amazon Chernobyl” Ordered to Prison After 800+ Days of House Arrest, DemocracyNow (link).
McGovern J., 2021, McGovern, Bush, Tlaib Lead Call for DOJ To Review Case of Environmental Justice Advocate Steven Donziger, Jim McGovern (link).
Milman O., 2021, The lawyer who took on Chevron – and now marks his 600th day under house arrest, The Guardian (link).
Miño P., 2021, For the US judiciary, corporate interests outweigh human rights, TRTWorld (link).
Natapoff A., 2016, Criminal Misdemeanor Theory and Practice, Oxford Handbooks Online (link).
Rushe D., 2011, Amazon pollution victims ask New York judge to award $8bn Chevron money, The Guardian (link).
United Nations, 2021, Human Rights Council Working Group on Arbitrary Detention, Opinion No. 24/2021 concerning Steven Donziger – United States of America (link).
United States of America v. Steven Donziger, 2021, 19-CR-561, United States District Court Southern District of New York (link).
Wheeler T, 2018, Who makes the rules in the new Gilded Age? Lessons from the industrial age inform the information age, Brookings (link).
Whitehouse S., 2017, Captured: The Corporate Infiltration of America Democracy, The New Press (link).
The use of any court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process by an individual or corporate entity is and will always amount to abuse of legal processes Attorney General v Barker [2000] EWHC 453 (Admin). It is common knowledge by this definition that powerful corporation has continuously abused legal processes by litigating on settled issues with the aid of leading law firms and advocates.
It’s been argued on many fronts that the rise of modern corporation has brought about a concentration of economic power which can compete on equal terms with modern state-economic power versus political power, each strong in its own field. The state with all its powerful machinery often seeks in some respects to regulate the activities and actions of corporation, but the corporation on the other hand attempts to avoid such regulations where necessary. Corporate entities such as Chevron has over the years deployed its massive economic power and lobbying skills to dominate and dictate states policies where its own interests are concerned. The pervasive influence of corporation and its ever-increasing effects on human rights globally cannot be over emphasised.
A classic example of such abuse (judicial process) was well captured in 2004 when Nicaraguan Banana Workers confronted the U.S Judicial System in the case of Tellez V Dole. One will recall that in 2004, a group of Nicaraguan banana plantation workers filed a lawsuit against Dole and Dow chemical Companies for harm suffered because of becoming sterile due to their exposure to a US banned pesticide, which they were told to use by the companies in Nicaraguan plantations in the 1970s. In November 2007, a Los Angeles Superior court jury, presided over by judge Victoria Chaney, found Dole and Dow responsible and awarded monetary compensations for all the harm suffered by the six plaintiffs. The court in addition found that Dole had acted with malice, fraud, and oppression towards the aggrieved plaintiffs, but upon appeal in 2009, the court dismissed the jury’s verdicts and accepted the new version of event and story being sold by Dole and its lawyers. This new story or event being sold was nicknamed by Dow and its advocates as the ‘Kill Step’. This kill step alleged a vast conspiracy between the victims, their lawyers, Nicaraguan judges and others to defraud Dole and US courts. This unfounded assumption by Dole and its counsel were kept completely anonymous and confidential from both the plaintiff lawyers and the public. Despite all the discrepancies associated with the appeal process and subsequent judgment, the California Supreme Court in 2014 rejected the appeal filled by the plantation workers without adducing the reason for such dismissal. It’s interesting to note that the Supreme Court till date is yet to officially release its reasons (ratio decidendi) for dismissing the appeal filed by the farmers.
The ordeal of Steven Donziger and the Nicaraguan plantation workers for me is a reminder that America is gradually falling back to the Gilded Age era. The story and all the events surrounding the trial of Steven Donziger reminds me of the roles and activities of the Muckrakers during the gilded age. The Muckrakers as they were referred to during the gilded age were journalist who investigated and exposed corruption among politician’s, elites, and corporation. Whilst it’s true that Steven Donziger isn’t a Muckrakers or a journalist in its true sense, his work against Chevron in Ecuador can be likened to the work of Ida Tarbell in 1902. One will recall that Ida Tarbell in her investigative article ‘History of the Standard Oil Company’ in 1902 led to the breakup of Rockefeller’s monopoly in the oil industry.
The similarities of Steven Donzinger, Nicaraguan plantation workers, and Helen steel and David Morris cases teaches us that the exploitation of our legal system by powerful corporations is clearly an unsolved issue, which if not addressed quickly will walk us back to an era of abject poverty and inequality (gilded age). The American government and all meaningful international institutions must wake up to its responsibilities before it’s too late.
Resources:
Armin Rosencranz and Stephen Roblin, “Tellez v. Dole: Nicaraguan Banana Workers Confront the U.S. Judicial System,” Golden Gate University Environmental Law Journal 7, no. 2 (July 2014): 113 142, (https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1115&context=gguelj)
Susanna Bohme, “People v. Dole,” Boston Review, July 14, 2014, (http://bostonreview.net/world/susanna-bohme-dole-banana-workers-pesticide-nicaragua)
(https://www.biography.com/writer/ida-tarbell)
Before I begin my discussion, I would like to express my gratitude to Professor Costantino Grasso for addressing one of the most critical topics of our time. It is a crucial issue that affects not only the society and the environment that experience such irresponsibility practices of corporations but also ıt has a massive destructive global impact. Although they are the ones who continue to abuse human rights and harm irrevocably the environment in countries across the globe, the outcome of the court is in their hands in most of the cases and they face few or no obstacles. Unfortunately, their highly accumulated wealth gives them the power to deter the ones from safeguarding society. In this regard, we are faced with many lived examples of companies who have been linked to corporate abuse and environmental harm in their global value chains, such as oil companies and the exploitation of workers in some countries. It is controversial whether corporate accountability laws are enough to hold these big corporations accountable for their irresponsible actions on behalf of their interests. Another breakdown is the weak governance systems that cause victims of those who stand against the abuse and protection of their rights and the future of society. It makes these corporations easily avoid liability before the courts. When lawyers and other people try interfering with corporate activities, they are faced with many legal barriers, challenges, and uncertainty.
I would like to bring on the agenda one of the recent cases. Shell, which has made billions of dollars in profit in the oil industry, is held responsible for its harmful actions to the environment and abuses of human rights. The village of Bodo in Nigeria once made a living from fishing. Fishing nets have been empty since Shell pipelines leaked oil in the Niger Delta in 2008 and 2009. Those who want to fish and make a living now have to go to the open seas. This requires more work and cost. Not just the fishing areas but also vegetation, crops are affected destructively. Although oil companies don’t accept the criticism that they ignore people, the visible facts have reached an undeniable level. It was determined that the probability of death of newborn babies before 1 month in polluted areas is approximately 2 times higher than in other regions.
Although Shell Nigeria should be under the management and control of the parent company as a subsidiary, in 2013 court, the decision was that the parent company was not held liable for damages to nature and violations of human rights, in short, it was decided that there was no duty of care on the parent company, Shell.
After 31 years of struggle, it was decided that Shell would pay $110 million in compensation to the Ogoni people in Nigeria. The 31-year period reveals how weak the legal system is to stop human rights violations and the destruction of nature.
People’s lives and livelihoods in countries across the world must be protected by the law and they should be given the power to determine a future of their own making. Our future should not be determined by corporations, but rather by the people who inhabit these communities. There is a need for keeping all people are equal in front of the judge by providing mandatory human rights and environmental due diligence legislation. Also, new approaches must be taken into account in the era of economic globalization. Corporations must be held under obligation to respect human rights and the environment. I think it is the duty of every legal system to make social and environmental issues the responsibility of companies, as well as an economic and profit-oriented perspective. Their power to put themselves above the law must be taken away for the future of all humanity and the planet.
In conclusion, I would like to share the statistical result that shows how few companies pose a great and corrosive danger to our future.
“Just 100 of all the hundreds of thousands of companies in the world have been responsible for 71% of the global GHG emissions that cause global warming since 1998, according to The Carbon Majors Database, a report recently published by the Carbon Disclosure Project (CDP), throwing light on the role companies and investors play in tackling climate change.” Sources: The Carbon Majors Database report, CDP and The Guardian.
References:
Anti-slavery Report; What If?
https://www.antislavery.org/wp-content/uploads/2020/09/ASI_ECCJ_Report_FINAL.pdf
Peace Palace Library, Shell and Ogoni People: (s)oil pollution in the Niger Delta,
https://www.peacepalacelibrary.nl/2013/02/shell-and-ogoni-people-soil-pollution-in-the-niger-delta/
https://www.activesustainability.com/climate-change/100-companies-responsible-71-ghg-emissions/?_adin=02021864894