THE LOEWEN GROUP, INC. and RAYMOND L. LOEWEN, v. THE ...

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B. Claimants Cannot Be Excused From Loewen's Settlement On The Ground Of "Economic Duress" ...................................................................... 74 1. The Excuse Of "Economic Duress," Even If Recognized Under Customary International Law, Cannot Be Extended To Loewen's Circumstances ............................................................... 74 2. The Availability of Federal Court Review Defeats Any Claim of Duress .................................................................................. 76 3. The Availability Of Corporate Reorganization Protection Defeats Any Claim Of Economic Duress .......................................... 78 4. An Unbonded Appeal Was A Reasonable Alternative For Loewen, As Execution Was Neither Imminent Nor Likely ............... 82 V. FURTHER COMMENT ON THE EFFECT OF NAFTA ARTICLE 1121 .............. 86 A. NAFTA Article 1121 Is Irrelevant To The Outcome Of This Case ............... 87 B. Even If The Local Remedies Rule Were Relevant To The Substantive Merits Of NAFTA Chapter Eleven Claims, The Rule Is Presumed To Apply Absent Unequivocal Waiver ..................................... 91 VI. THE MISSISSIPPI COURT JUDGMENTS DID NOT VIOLATE ANY OF THE SUBSTANTIVE PROVISIONS OF NAFTA CHAPTER ELEVEN ............... 96 A. The United States Is Not Responsible For The Alleged Acts Of Mr. O'Keefe, His Counsel, or His Witnesses ........................................................ 96 B. Claimants Fail To Establish A Violation Of NAFTA Article 1102 ............... 97 1. The United States Does Not "Concede" A Violation Of Article 1102 ........................................................................................ 98 2. Loewen and O'Keefe Were Not "In Like Circumstances" ................. 100 3. Loewen Did Not Receive Treatment "Less Favorable" ..................... 102 -iii-
C. Claimants Fail To Establish A Violation Of NAFTA Article 1105 ............... 106 1. The Availability Of Further Appeals Defeats Claimants' Article 1105 Claim As A Matter Of Law ........................................... 106 2. Claimants Misstate The Liability Standard Under Article 1105 ........ 111 3. The Trial Proceedings ......................................................................... 116 4. The Form Of The Verdict ................................................................... 118 5. The Amount Of The Judgment ........................................................... 121 a. The Proper Benchmark ........................................................... 122 b. The Elements Of Damages ..................................................... 124 6. The Decisions Regarding The Supersedeas Bond .............................. 130 a. Imposition Of A Neutral Supersedeas Bond Requirement, Despite An Appellant's Claimed Inability To Pay, Is Not A Denial Of Justice .......................... 130 b. The Refusal To Depart From The Full Bond Requirement Was Not, On The Basis Of The Record Before The Mississippi Courts, A Denial Of Justice .............. 133 (i). The Mississippi Courts Did Not Fail To Consider Loewen’s Grounds for Departure ................ 134 (ii). The Mississippi Courts Did Not Abuse Their Discretion .......................................................... 135 7. Claimants’ “Fair And Equitable Treatment” And “Full Protection And Security” Arguments Are Without Merit .................. 143 a. Claimants Fail To Establish A Denial Of “Fair And Equitable Treatment” As That Obligation Is Defined Under Customary International Law ...................................... 147 b. Claimants Fail To Establish A Denial Of “Full Protection And Security” Under Customary International Law .............. 148 -iv-
Page 1 and 2: IN THE MATTER OF: THE LOEWEN GROUP,
Page 3: III. CLAIMANTS CANNOT OVERCOME LOEW
Page 7 and 8: I. INTRODUCTION This arbitration co
Page 9 and 10: claimants' invitation to serve as a
Page 11 and 12: A. Claimants Entirely Ignore The Se
Page 13 and 14: important basis for the jury's ulti
Page 15 and 16: unfair competitor, and to garner sy
Page 17 and 18: "completely ridiculous." Millen Dec
Page 19 and 20: O'Keefe's explanation that Riemann'
Page 21 and 22: Mr. Blackmon, who was on Loewen's t
Page 23 and 24: 5677 (emphasis added). This was esp
Page 25 and 26: For example, the O'Keefe plaintiffs
Page 27 and 28: within his rights to elicit testimo
Page 29 and 30: in the present proceeding, claimant
Page 31 and 32: O'Keefe, of course, was absolutely
Page 33 and 34: F.3d 1312, 1314 (9th Cir. 1994) (co
Page 35 and 36: Loewen's monopolistic practices, an
Page 37 and 38: More fundamentally, claimants' disc
Page 39 and 40: conducted by Loewen-retained lawyer
Page 41 and 42: (Federal Judicial Center 1995). 37
Page 43 and 44: In response, claimants contend that
Page 45 and 46: a single citation to the record to
Page 47 and 48: In short, since the United States f
Page 49 and 50: as is alleged here, the cost of a s
Page 51 and 52: Trost at 4. potentially ruinous jud
Page 53 and 54: Claimants ignore the international
Page 55 and 56:
To rise to the level of a general p
Page 57 and 58:
Claimants ignore this distinction e
Page 59 and 60:
. The "Plain Error" Rule Is Foreclo
Page 61 and 62:
(same). 60 See also Miss. R. App. P
Page 63 and 64:
Moreover, even if the obligation of
Page 65 and 66:
In any event, as the record makes c
Page 67 and 68:
injuries, thus eliminating any poss
Page 69 and 70:
In fact, the Mississippi courts wer
Page 71 and 72:
though the United States was not a
Page 73 and 74:
To support its novel causation theo
Page 75 and 76:
cause is a necessary prerequisite o
Page 77 and 78:
transactions where insurers assume
Page 79 and 80:
settle the litigation. 85 As the Ge
Page 81 and 82:
(quoting Detlev F. Vagts, Coercion
Page 83 and 84:
after the United States filed its C
Page 85 and 86:
elying largely on authorities invol
Page 87 and 88:
Supreme Court, the Court would have
Page 89 and 90:
Mississippi counties where the judg
Page 91 and 92:
in any foreign state where O'Keefe
Page 93 and 94:
A. NAFTA Article 1121 Is Irrelevant
Page 95 and 96:
econsidered, does not of itself amo
Page 97 and 98:
B. Even If The Local Remedies Rule
Page 99 and 100:
In particular, Mr. Broches expressl
Page 101 and 102:
If there were any doubt on this poi
Page 103 and 104:
countless remarks of O'Keefe's coun
Page 105 and 106:
In fact, jurisdictions other than M
Page 107 and 108:
of different nationalities - "litig
Page 109 and 110:
appealed to nationalistic biases by
Page 111 and 112:
"[w]hile preaching homespun values
Page 113 and 114:
justice, irrespective of the local
Page 115 and 116:
claimants, not the United States, w
Page 117 and 118:
Article 1105] to suggest a departur
Page 119 and 120:
more than the handful of "denial of
Page 121 and 122:
Where the judicial action in questi
Page 123 and 124:
privately reported to Loewen (his c
Page 125 and 126:
damages. 136 Because the initial ve
Page 127 and 128:
said, what they did or why they did
Page 129 and 130:
awards in a wide range of circumsta
Page 131 and 132:
The contention that the $35 million
Page 133 and 134:
epresent only a fraction of even th
Page 135 and 136:
anything other than a genuine (and
Page 137 and 138:
instrument." Joint Reply at 112-13
Page 139 and 140:
discriminatory bond requirement. Ga
Page 141 and 142:
Loewen cited. A1075-78. While Judge
Page 143 and 144:
A full bond was especially importan
Page 145 and 146:
inaccurate, as it allegedly misquot
Page 147 and 148:
Given that Loewen's own evidence su
Page 149 and 150:
law does not constitute an unjust j
Page 151 and 152:
established rules of law. Claimants
Page 153 and 154:
out in this Agreement." NAFTA art.
Page 155 and 156:
has been recognized. 169 See id. at
Page 157 and 158:
under customary international law t
Page 159 and 160:
Metalclad Corp. (U.S.) v. United Me
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