Petrotimor v. ConocoPhillips lawsuit dismissed by United States District Court
By Charles Scheiner, La'o Hamutuk
2 June 2008
On 16 April 2008, Judge Lynn N. Hughes of the U.S. District Court in Houston, Texas dismissed the 30-billion-dollar lawsuit brought by Petrotimor and its parent company Oceanic Exploration against ConocoPhillips, the Timor Sea Designated Authority (TSDA) and others in March 2004. Although the Timorese and international media repeatedly reported on Petrotimor's sensational charges (including alleged ConocoPhillips bribing of Prime Minister Mari Alkatiri) over the last four years, the final judgment rejecting the lawsuit has not been reported anywhere in the six weeks since it occurred.
For more information and links to Judge Hughes's ruling and other key documents, see www.laohamutuk.org/Oil/Oceanic/OcexConocoLawsuit.htm .
Legal Process
In the U.S., any individual, group or company can file a civil case against anyone else without providing evidence or proof before the case is heard. Often, such cases are privately negotiated away in an out of court settlement, with the defendant (the person being sued) paying the plaintiff (the person bringing the suit) to drop the case. That did not happen in this case.
A lawsuit like this goes through several phases before the alleged wrongdoing is evaluated:
1. After determining that correct procedures have been followed and the court has jurisdiction, the judge decides if each of the defendants' wrongful actions would have caused harm to the plaintiffs, assuming that the facts are as the plaintiff claims. In this case, the judge ruled that some defendants, including the TSDA, could not be responsible even if everything the plaintiff charged was true, but allowed the case to proceed against ConocoPhillips.
2. Then, still assuming everything the plaintiff charges is true, the judge evaluates whether the harm that the plaintiff claimed was done to them was caused by the defendants' alleged actions, and whether that harm would not have occurred if the defendants had not acted improperly. This case was dismissed because the judge found Oceanic's claim of harm implausible, and did not believe that Oceanic would have secured rights to develop Timor Sea oil even if the defendants had not done what Oceanic claimed.
3. If the judge had found that Oceanic's rights were injured by ConocoPhillips' alleged actions, the court would then have heard witnesses and evaluated evidence to determine if ConocoPhillips had actually done the misdeeds claimed by Oceanic. However, this case was dismissed before that became necessary.
4. Finally, if the court had found that wrongdoing by the defendant had injured the plaintiffs, it would have ordered the defendant to pay the plaintiff.
Chronology
In 2004, the U.S. company Oceanic Exploration and its Petrotimor subsidiary filed a multi-billion dollar lawsuit against ConocoPhillips, the Timor Sea Designated Authority (TSDA), Pertamina and others. The civil lawsuit initially alleged that ConocoPhillips benefited illegally from the Indonesian occupation of Timor-Leste, and that ConocoPhillips (then known as Phillips Petroleum) bribed Prime Minister Mari Alkatiri and other Fretilin officials to continue contracts it had signed with the Australian-Indonesian Timor Gap Joint Authority during the illegal Indonesian occupation, rather than have a new bidding process in 2002 or revoke Indonesian-era contracts in favor of Portuguese-era ones. Oceanic claimed that in 1974 Portugal awarded it an exclusive exploration contract for the entire Joint Petroleum Development Area (JPDA), and that ConocoPhillips' illegal activities deprived Oceanic of its legal right to exploit Timor Sea Oil. Although Oceanic alleged that Timorese officials took bribes, it did not name any Timorese as defendants in the lawsuit
The case was filed in U.S. Federal District Court in Washington, DC and assigned to Judge Emmet G. Sullivan. Oceanic demanded US$10.5 billion in damages, multiplied by three because they claimed that racketeering and corruption deprived them of their rights. Their allegations got a lot of media coverage, and were immediately denied by the Prime Minister and others.
A year later, Judge Sullivan rejected Oceanic's initial complaint, and Oceanic filed a revised version on 1 March 2005, dropping some allegations and adding others.
In September 2006, the judge dismissed the case against the TSDA and subsidiaries of ConocoPhillips, but allowed it to proceed against the parent ConocoPhillips company. ConocoPhillips responded to the substantive allegations the following month, and asked that the case be transferred to Houston, Texas.
In February 2007, Judge Sullivan agreed to move the case to Texas, where it continued before judge Lynn N. Hughes. Some hearings and filings took place over the next four months.
Dismissal
On 16 April 2008, Judge Hughes dismissed the entire case, issuing a final judgment on 22 April. About the bribery allegations, he wrote
Oceanic’s asserts abstract operative facts – bribery, hostility, causation, and damage. It supports the abstractions with over 50 pages of trivia. The details are not cogent; we are left with a metaphysical leap from this list of gossip and debris of ConocoPhillips’ working in the region to Oceanic’s particular interpretation of why it lost in Timor. For instance, Oceanic pleads that the president of ConocoPhillips flew to East Timor to hand an official a suitcase of cash. Implausibility aside, Oceanic simply can not link this fact with its injury. That is, it can not possibly have an idea why the president of an international corporation would personally deliver cash in a briefcase to an official of East Timor. It has assumptions – nothing more.
Judge Hughes concluded:
Oceanic speculates that absent the bribery:
* East Timor would have chosen to abrogate the concessions.
* Australia would have acquiesced.
* East Timor would have reopened bidding.
* Oceanic would have been permitted to bid.
* Oceanic would have won the bid.
* Oceanic would have profitably developed the concession.
To recover, Oceanic must show what would have happened absent the bribe to a high degree of probability. It can not. Assuming ConocoPhillips bribed officials of East Timor not to reopen bidding, the decision was made not by any one official but by an entity representing all of East Timor. This court will not imagine the decision-making process of East Timor, Australia, Indonesia, Oceanic, and dozens of oil companies.
In Oceanic’s long complaint – twice amended, not counting its practice run in the Australian courts – it has not pleaded facts that, if true, show its injury is connected to the acts it describes. If ConocoPhillips acted corruptly in East Timor, Oceanic was injured in common with oil companies, consumers, and the rule of law everywhere.
Assuming its facts – as opposed to assumptions and contentions, legal theories, and demands – to be true, Oceanic Exploration Company’s pleadings do not show that the wrongful acts of ConocoPhillips and ConocoPhillips Company proximately caused the harm it claims.
Oceanic may well have been the victim of international politics in 1974 when it lost its Portugese concession to the Indonesian invasion. It cannot recover for its losses to political risk 30 years ago – not from Indonesia, not from ConocoPhillips.
Oceanic Exploration Company and Petrotimor Companhia de Petroleos, S.A.R.L. will take nothing from ConocoPhillips and ConocoPhillips Company.
Oceanic appealed the decision to the U.S. Fifth Circuit Court of Appeals on 15 May 2008.
Although this case, including Oceanic's detailed allegations, has been on the public record for more than four years, no prosecuting authority anywhere brought criminal charges against anyone named by Oceanic's allegations. Most likely, prosecutors in the United States, Australia and elsewhere did not find the allegations of bribery, racketeering and corruption credible enough to bring alleged perpetrators to trial.
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La'o Hamutuk (The Timor-Leste Institute for Development Monitoring and Analysis)
P.O. Box 340, Dili, Timor-Leste (East Timor)
Telephone: +670-3325013 or +670-734-0965 mobile
email: cscheiner@igc.org website: http://www.laohamutuk.org skype: cscheiner
