The real ‘best friend of the court’

By Lin Yi-ping 林宜平 Chen Hsin-hsing 陳信行 Paul Jobin 彭保羅  / 

Wed, Jun 20, 2018 - Page 8

After many years of class-action suits and victories at the Taipei District Court and Taiwan High Court, the injured former workers of Radio Corp of America (RCA) Taiwan are on Thursday to attend a definitive hearing at the Supreme Court.

On the eve of the trial, the US company General Electric (GE), which was found jointly responsible for tort liability in the High Court’s judgement, submitted to the Supreme Court an amici curiae brief by the National Association of Manufacturers (NAM) and the National Foreign Trade Council (NFTC).

In response, 25 labor groups from 13 nations have addressed a joint letter to the Supreme Court, asking the judges to disregard GE’s attempt to threaten them with economic blackmail. The signatories include the International Trade Union Confederation, which claims 176 million members around the world.

The amicus curiae system, originally derived from ancient Roman law, aims to provide opinions on issues that the court might have difficulty understanding. It has been adopted under common law since the 17th century.

The main purpose is to provide suggestions, especially in cases involving major social or legal issues, to allow people or organizations other than the litigants to express their views and urge the court to consider the case’s influence. From the perspective of procedural justice, it could also enhance the judiciary’s credibility.

However, in the US, the amicus curiae system has often been used by interest groups. Under the cover of “friendship,” outsiders to the lawsuit could benefit from the lack of knowledge about procedural mechanisms and threaten its integrity, which could be detrimental to all the litigants.

The amici curiae brief submitted by GE to the Supreme Court emphasized the importance of US investment to Taiwan’s manufacturing industry.

It also says that, according to the principle of corporate separateness, the RCA case does not meet the test for “piercing the corporate veil” and therefore calls on the court to reject the original verdict and send it back for another trial.

The brief concludes that “such a ruling will benefit the economy of Taiwan by retaining its longstanding reputation as a jurisdiction where laws are predictable and align with international principles of fairness.”

Regardless of whether the RCA case meets the requirements for “piercing the corporate veil,” the question is to be debated at the Supreme Court. Our goal now is to translate amicus curiae into plain English and ask: Who is really the “court’s best friend”?

Although Taiwanese civil law does not have an amicus curiae system, in cases dealing with intellectual property, the court has openly solicited opinions from “friends of the court” to more cautiously approach the rationale of the verdict.

An annex of GE’s brief provides an introduction to the US amici curiae, written by Chin Mong-hwa (金孟華), who holds a doctorate of law from Duke University and teaches in Taiwan, published in the magazine Reform of the Judiciary.

Interestingly, the article states: “According to the Supreme Court Rules No. 37.6, the procedure requests that if a party from the private sector submits a brief, it must disclose the authors and contributors. This is to avoid that a party disguised as a friend of the court submits a written opinion to support its own interest.”

In the GE brief, the “friends of the court” — the NAM and the NFTC — defend the position of US companies.

What kinds of organizations are they? The NAM was established in 1895 and is the largest manufacturing association in the US, representing about 14,000 small and large manufacturers in various industrial sectors, the brief says.

The NFTC, which was established in 1914, aims to support US companies in the world trade system. It has more than 300 corporate members that specialize in issues such as international trade, investment, taxation, export financing and human resource management, it adds.

The brief does not explain GE’s relationship with the organizations, but according to the groups’ Web sites, the NAM’s board of directors includes two high-level GE executives NFTC also has GE board members.

In other words, GE has a lot of influence in these organizations that aim to powerfully defend the interests of large US companies.

GE was founded in 1892 after merging Edison General Electric Co and Thomson-Houston Electric Co. In 1896, when the Dow Jones Industrial Index was launched, GE was one of the 12 companies to be listed and is the only one that remains today.

In 1919, GE and AT&T jointly established RCA. In the late 1960s, when Taiwan’s economy took off, RCA established RCA Taiwan to set up factories in Taoyuan, Chupei and Yilan to produce components for TV sets and various electronic and electrical products.

In 1986, GE acquired RCA, and the factory continued to produce computer selectors for televisions. In 1988, Thomson Consumer Electronics (TCE) acquired RCA Taiwan’s property rights from GE. In 1992, Thomson declared that RCA Taiwan’s plant would be shut down.

GE has since 1986 owned more than 99 percent of RCA Taiwan’s shares through Bermuda’s RCA Corp. While operating in Taiwan, GE violated the laws for the protection of others and ignored the nation’s various laws and regulations.

To save on costs, the factory did not provide air conditioning during summer, failed to fully ventilate certain areas, did not recirculate exhaust indoors, did not collect groundwater and provided groundwater-contaminated tap water to staff in the shop, restaurants and dormitories.

Even more odious is that during the transaction between GE and TCE, these two well-known multinational companies hired environmental consultants to investigate pollution on the Taoyuan and Chupei sites and found that the soil and groundwater contained various types of organic solvents.

In Singapore in February 1989, GE and TCE representatives signed a consensus report with two environmental consultants. Despite the severe contamination, they did not inform the employees or Taiwan’s regulatory authority.

These three English-language reports about the severe contamination were for many years concealed by RCA, GE and TCE. Two years after RCA was shut down in Taiwan, a former senior employee gave them to a lawmaker, who made them public.

Former RCA employees then filed a lawsuit, and in 2013, expert witness Lambert L. Ding (丁力行) brought attention to the reports to explain the pollution in detail.

The RCA story points out the dark side of Taiwan’s economic “miracle.” The occurrence of environmental and occupational cancers implies a long incubation period and the injured workers have faced a long journey to take legal action.

Since the pollution was reported by the media in 1994, many labor groups, academics, experts and volunteer students have assisted the victims and their lawyers, collecting and analyzing data, considering how to fight against highly paid US and Chinese experts who came to testify in defense of GE and TCE.

These activists, academics and students have no conflicts of interest. They are the true “friends of the court.”

The two victories for the workers from the district and high courts provide progressive insight. We hope that the Supreme Court will uphold the original judgement as the definitive verdict.

The lengthy and difficult mobilization by Taiwan’s real “friends of the court” will show the truth of industrial pollution to prevent other such tragedies from happening again.

We are grateful for the investments made by US companies in Taiwan after World War II and we cherish the fruits of Taiwan’s economic development, but after piercing the veil of multinational companies, we have also seen the odious facts of long-hidden and brutal pollution.

The NAM proclaims that it is “the voice of the American manufacturing community and a leading advocate for policies that help manufacturers compete in the global economy and create jobs worldwide,” and cares for “the fair treatment of international businesses when subject to local judicial proceedings.”

We hope that the NAM and the NFTC will respect environmental justice, so that they will not only be friends of the court and good friends of GE, but also Taiwan’s most loyal friend.

Lin Yi-ping is an associate professor and dean of National Yangming University’s Institute of Science, Technology and Society. Chen Hsin-hsing is a professor at Shih Hsin University’s Graduate Institute for Social Transformation Studies. Paul Jobin is an associate research fellow at the Academia Sinica’s Institute of Sociology.