In Burma, Litigation Aids Transparency

When ERI represents victims of earth rights abuses in litigation, our goal is to seek an appropriate remedy for the harms they have suffered, and each case contributes to a general climate of accountability that deters similar abuses in the future.  But litigation often has other benefits, as well; it allows all of the facts to come out, which helps the victims to tell their story and lifts the veil on corporate secrecy.  As former Supreme Court Justice Louis Brandeis famously remarked, "Sunlight is the best disinfectant."  Sometimes the documents that are released through litigation provide insight into aspects of projects that are not even related to the claims in the case, but are important questions of public interest.  ERI's recent initiative on transparency in the oil and gas sector in Burma provides one example of how this has happened.

ERI's case Doe v. Unocal, which proceeded through one phase of trial before reaching a landmark settlement in 2005, challenged abuses arising out of a natural gas pipeline project in Southern Burma.  In many countries, the contracts underlying such a project would be public or subject to freedom of information disclosure.  After all, these are contracts with public entities to develop public resources. For example, BP's recent oil spill in the Gulf of Mexico arises out of a block known as MC252, which was awarded by the U.S. government in 2008 in Lease 206; public information about the lease sale can be found online and shows, among other things, that BP bid over $34 million for the block, with a fixed royalty rate of 18 3/4%.

For natural gas projects in Burma, however, this sort of information is usually not publicly available.  But when Unocal introduced the contracts for the Yadana Project at trial in 2004, they became part of the official court record and entered the public domain.  Although Doe v. Unocal concerned human rights abuses, the litigation also contributed to the overall transparency of a pipeline project whose public benefits were highly questionable from the beginning, as ERI has pointed out. Unocal's decision to use the contracts as exhibits as trial allowed ERI to release these documents publicly, and to use them to estimate how much money was flowing to the Burmese military regime as a result of the Yadana Project.  It also allows ERI to counter any suggestion from the oil companies that they are contractually prohibited from practicing revenue transparency in Burma; the contracts contain no such prohibitions.

Trials chiefly serve the purpose of allowing the victims to tell their stories and exposing the truth of how the corporations have been complicit in abuse, but in a place like Burma, where secrecy is the norm, the truth-telling function can have incidental benefits.  In Doe v. Unocal, the trial not only allowed the Yadana Project contracts to be released publicly, but it also showed that the company was not even willing to fight very hard to keep its contract secret.  Secrecy is something the Burmese regime wants, not something that a corporation needs.