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The Future of Corporate Liability for Extra territorial Human Rights Abuses: The dutch Case Against Shell

  • Nicola Jägers (a1), Katinka Jesse (a2) and Jonathan Verschuuren (a1)

Extract

The U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co. limits the potential of the Alien Tort Statute (ATS) as a means of legal redress for victims of human rights abuses caused by transnational companies. Interestingly enough, almost simultaneously with the Kiobel decision by the U.S. Supreme Court, a Dutch court issued its rulings in five cases concerning Nigerian individuals, supported by a Dutch environmental nongovernmental organization (NGO), in their claims against Royal Dutch Shell (RDS), headquartered in the Netherlands, and its Nigerian subsidiary, Shell Petroleum Development Company of Nigeria, Ltd. (SPDC). These cases relate to oil spills for which the plaintiffs believed Shell should be held liable.

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References

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1 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013).

2 28 U.S.C. §1350.

3 On January 30, 2013, the District Court of The Hague rendered separate judgments in five cases brought by four Nigerian farmers and fishermen, supported by the Dutch branch of Friends of the Earth (Milieudefensie), against the Nigerian subsidiary of Shell and its former and current parent companies in the United Kingdom and the Netherlands. In this article, we focus on the most important one: Akpan v. Royal Dutch Shell PLC, Arrondissementsrechtbank Den Haag [District Court of The Hague], Jan. 30, 2013, Case No. C/09/337050/HA ZA 09-1580 (ECLI:NL:RBDHA:2013:BY9854). An (unofficial) English translation of this and the other four judgments is available from Milieudefensie's website, http://www.milieudefensie.nl/english/shell/oil-leaks/courtcase/press/documents/documents-on-the-shell-legal-case. Information about this and other Dutch cases is available online at http://www.rechtspraak.nl.

4 See Ingrid Wuerth, Kiobel v. Royal Dutch Petroleum Co.: The Supreme Court and the Alien Tort Statute, 107 AJIL 601, 601–03 (2013).

5 Kiobel, 133 S.Ct. at 1669. Anupam Chander points out that Kiobel does not put an end to U.S. transnational human rights litigation, but rather an end to transnational human rights litigation against foreign corporations; hence American corporations are disadvantaged over foreign corporations. See, in this Agora, Anupam Chander, Unshackling Foreign Corporations: Kiobel's Unexpected Legacy.

6 For more on the outstanding issues concerning the ATS post-Kiobel, see Wuerth, supra note 4.

7 The United States provides subject matter jurisdiction for some human rights claims that now fall outside the Ats. For instance, U.S. courts have jurisdiction over so-called transitory torts: torts committed in other countries that are unlawful under the law of that country. The most famous transitory tort claim is the litigation concerning the Union Carbide Corp. gas plant disaster in Bhopal, India, in 1984.

8 For some of these cases, see, in this Agora, Robert McCorquodale, Waving Not Drowning: Kiobel Outside the United States; Mahdev Mohan, The Road to Song Mao: Transnational Litigation from Southeast Asia to the United Kingdom; Andrew Sanger, Corporations and Transnational Litigation: Comparing Kiobel with the Jurisprudence of English Courts (focusing on English cases). However, as noted in this Agora, Anne Herzberg appears to see an opposite trend based on, most notably, jurisprudence regarding consequences of the Israeli/Palestinian conflict on the (alleged) occupied territories. Anne Herzberg, Kiobel and Corporate Complicity—Running with the Pack.

9 This point was brought forward in an amicus curiae brief dated June 13, 2012, submitted by five Dutch professors of law (including Nicola Ja¨gers) to the U.S. Supreme Court in the Kiobel case in support of the plaintiffs. Supplemental Brief of Professor Alex-Geert Castermans (Leiden University) et al. as Amici Curiae in Support of Petitioners, Kiobel v. Dutch Petroleum Co., 133 S.Ct. 1659 (2013) (No. 10-1491), available at http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/10-1491_petitioneramcu5 professorspdf.authcheckdam.pdf.

10 In two recent cases, the Dutch courts have asserted jurisdiction over cases in which the conduct took place outside the Netherlands. In these cases, the government of the Netherlands was held liable for the damages that occurred elsewhere. In one case, the Dutch Supreme Court held the Netherlands liable for damages caused to Bosnian families after their family members were expelled from the Dutch UN compound in Srebrenica and later executed by Serbian troops. Nuhanovic v. The Netherlands, Hoge Raad der Nederlanden [Supreme Court of the Netherlands], Sept. 6, 2013, Case No. 12/03324 (ECLI:NL:HR:2013:BZ9225). In the other case, the Dutch government was held liable to the family of those killed by summary executions in a village in Indonesia by the Dutch army in 1947. Ass’n Dutch Debt of Honor v. The Netherlands, Arrondissementsrechtbank Den Haag, Sept. 14, 2011, Case No. 354119/HA ZA 09-4171 (ECLI:NL:RBSGR:2011:BS8793).

11 Burgerlijk Wetboek [Dutch Civil Code], Art. 6:162; see also Nicola M. C. P. Ja¨gers & Marie-Jose´ van der Heijden, CorporateHumanRights Violations: The Feasibility of Civil Recourse in the Netherlands, 33Brook. J. INT’L L. 833 (2008). Under Article 51 of the Dutch Criminal Code [Wetboek van Strafrecht], corporations may also be held criminally liable. This topic will not be explored further here.

12 El-Hojouj v. Unnamed Libyan Officials, Arrondissementsrechtbank Den Haag, Mar. 21, 2012, Case No. 400882/HA ZA 11-2252 (ECLI:NL:RBSGR:2012:BV9748).

13 In this case, the Dutch court had to apply Nigerian law because European and Dutch law required application of the law of the jurisdiction where the damages occur.

14 This Dutch pathway may be considered an illustration of a wider European trend. See, in this Agora, Caroline Kaeb & David Scheffer, The Paradox of Kiobel in Europe

The Future of Corporate Liability for Extra territorial Human Rights Abuses: The dutch Case Against Shell

  • Nicola Jägers (a1), Katinka Jesse (a2) and Jonathan Verschuuren (a1)

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