- As a sovereign nation, China may legally prevent import on to its shores of exported genetically-modified corn like MIR 162, with no legal repercussions.
- Syngenta promised the U.S. Government it would Prevent Unapproved MIR 162 from Arriving on Chinese shores, and thereby Disrupt U.S. Corn Export Acceptance by China.
- As predicted by the National Grain and Feed Association in 2011, China’s zero-tolerance policy concerning previously-unapproved genetically-modified corn was known to Syngenta; its rejection was foreseeable to Syngenta.
- Even with China’s refusal to approve MIR 162, it was Syngenta’s failure to keep it segregated from other approved seeds that resulted in China’s eventual ban on U.S. corn shipments, and the consequent loss of billions of dollars in corn income by American farmers.
As a sovereign nation, China may legally prevent import of genetically-modified corn like MIR 162, with no legal repercussions. Syngenta points to no basis for a court’s ability to adjudicate its desired defense that China acted in violation of its own laws. To do so would be contrary to the act-of-state doctrine, which “requires that . . . the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid.” W.S. Kirkpatrick & Co. v. Envt’l Tectonics Corp., Int’l, 493 U.S. 400, 409 (1990) (emphasis added); see also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401 (1964) (“The act of state doctrine in its traditional formulation precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory.”).
Syngenta, in seeking non-regulated status from the United States Department of Agriculture in 2010, and consequently, the permission from our government to sell a GMO seed not approved elsewhere, made promises that it would prevent its unapproved MIR 162 from arriving on Chinese shores, and thereby disrupting U.S. corn export acceptance by China. It failed to meet these promises. Specifically, Syngenta failed to timely implement stewardship agreements to ensure that farmers to whom it sold its previously-unapproved GMO MIR 162 seed would not commingle corn grown from such unapproved seed with corn approved elsewhere. Syngenta failed to meet its promises to the U.S. Government, and thereby caused billions of dollars in damages to U.S. corn farmers, grain elevators and corn exporters.
The National Grain and Feed Association (“NGFA”) twice predicted that Syngenta would risk imploding the U.S. corn export market if it prematurely commercialized this unapproved corn seed. In 2011, the NGFA predicted that Syngenta’s premature commercialization of MIR 162, or Viptera Agrisure, could cost the American corn farmer upwards of $2.9 billion during crop year 2013. In 2012, the NGFA likewise predicted that Syngenta’s premature commercialization of Duracde Agrisure could cause perhaps another $3.4 billion in damages during crop year 2014.
Facing dire warnings of up to $6.3 billion in damages caused to the American corn farmer, Syngenta chose to plow forward anyway. As such, it was not China’s predictable rejection of U.S. corn shipments including the unapproved MIR 162 strain that caused the drop in corn prices, it was Syngenta’s own conduct and its repeated refusal to be honest with the American corn farmer. Consequently, it is not the Chinese, rather it is Syngenta, that is responsible for the drop in U.S. corn prices, and the consequent billions in litigation claims brought in these lawsuits.
Mikal C. Watts
WATTS GUERRA, LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
* This information is provided to supply relevant information concerning the GMO corn lawsuit, and should not be received as legal advice. Legal advice is only given to persons or entities with whom Watts Guerra LLP has established an attorney-client relationship. If you have another lawyer in the GMO Corn lawsuit, you should consult with your own attorney, and rely upon his or her advice, rather than the information contained herein.