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The US Court of Appeals for the Third Circuit upheld a lower court decision that Máxima Acuña Atalaya de Chaupe and her family’s case against US-based Newmont Mining Corporation (NYSE: NEM) (TSX: NGT) should be heard in Peru, rather than in the United States.
Engaged in a legal fight with the mining giant for over three years now, the Chaupe family alleges that their home was destroyed when Newmont started building its $5-billion Conga gold and copper project. The Peruvian potato farmers say their attempts to rebuild the matriarch’s house have been blocked through the use of harassment and violence.
Advised by EarthRights International, the family wanted their case to be heard in Delaware, where Newmont incorporated almost 100 years ago.
Advised by EarthRights International, the family wanted their case to be heard in Delaware, where Newmont incorporated almost 100 years ago
But, in 2018, a federal court in the state ruled that the case should be heard in Peru. The Chaupes and EarthRights, thus, continued the fight before the Third Circuit.
In March this year, the US District Court for the District of Delaware dismissed the case in favour of sending it to Peru. The court ruled that Newmont carried its burden to show that Peru was an adequate forum to hear the family’s claims based on ongoing corruption reforms being carried out in the country and the family’s ability to prevail in other matters before the Peruvian judiciary. This is the decision that was recently upheld by the Third Circuit.
The ruling states that the lower court did not abuse its discretion in reaching this result, “despite the recent, serious allegations of corruption.”
The Third Circuit further ruled that a Peruvian government report issued after the district court’s decision concluding “without a doubt” that corruption reforms implemented by the government are “insufficient to recover and ensure the guarantees of a correct administration of justice at a national level” did not warrant a different result.
EarthRights also asked the Court to consider the political chaos that consumed Peru during the appeal process, when president Martín Vizcarra was ousted by Congress sparking massive, deadly protests and how this situation might have affected anti-corruption reforms. However, the Court’s opinion failed to mention or address this development.
Given the way the Court interpreted the different submissions by the Chaupe family, the NGO believes the recent ruling was based on the application of a technical procedural doctrine and did not take into consideration the actual probabilities of the family receiving fair treatment in the South American country’s court system.
“If this extraordinary amount of evidence of judicial corruption in an alternative forum is not sufficient to prevent a district court from dismissing a case to that forum for reasons of ‘convenience,’ I’m not sure what would be,” Wyatt Gjullin, staff attorney for EarthRights, said in a media statement.
“The Court’s decision closes the courthouse doors to a family that has suffered years of abuse and is simply seeking to hold Newmont accountable in its home forum.”
MINING.COM reached out to Newmont Mining Corporation for comment on the Court’s ruling but did not receive a response by publication time.
Comments
Paul Wolf
The case law is solid that corruption isn’t a sufficient reason to find a forum is inadequate. The reason is that it interferes with relations with the government of that country, if our courts find that their courts are inadequate. On the other hand, physical danger might make a forum inadequate, if the trial can’t be conducted safely.
In addition is seems like most of the important events in this case occurred in Peru. It seems like a real long shot to try to sue in the US, but you can get uncapped damages here.