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Kiobel Writ: INTERNATIONAL JURISDICTION OF DUTCH COURTS

Large-scale corruption in Nigeria and within the Nigerian judiciary has for a long time been a clear problem. Consequently, a proper judicial process cannot be guaranteed in Nigeria.

By John Donovan

The numbered paragraphs below are extracted from the 138 page Esther Kiobel Writ served on multiple Royal Dutch Shell companies on 28 June 2017. More information about the latest litigation, this time in the Dutch Courts, is provided after the extracts.

INTERNATIONAL JURISDICTION OF DUTCH COURTS

6.1 Jurisdiction under the Brussels I Regulation

132. Shell Petroleum NV and Royal Dutch Shell plc have their registered offices in The Hague. It is therefore an established fact that under article 4(1) in conjunction with article 63 of the recast Brussels I Regulation the Dutch courts have jurisdiction to hear disputes in respect of these parties.167 The district court of The Hague has subject-matter jurisdiction.

6.2 Jurisdiction under of art. 7(1) CCP

133. The claimants’ claims against Shell Petroleum NV and Royal Dutch Shell are inextricably bound up with their claims against Shell Transport and Trading and SPDC. The claimants after all claim that both the parent company and SPDC were complicit in human rights violations towards themselves and their executed husbands. In this summons the claimants give more detailed substantiation of the active role SPDC and the parent company jointly played in this regard, in so doing acting at all times as a single entity.

134. Under article 7(1) CCP a Dutch court that has jurisdiction in respect of a defendant also has jurisdiction in respect of other defendants involved in the proceedings, provided that there is such a connection between the claims against the different defendants that reasons of efficiency justify a joint hearing.

135. The claimants base their claims against the Dutch and non-Dutch defendants on the same facts and legal grounds. It is therefore efficient to hear these cases together. The joint action on which the complicity of Shell is based demonstrates a coordinated approach that cannot actually be split up into separate acts by the different defendants. The connection between the claims is therefore so close that good administration of justice requires their simultaneous hearing and adjudication, in order also to avoid incompatible decisions being given in separate adjudication of the cases.168 

136. It should also be noted that the declaration in the Wiwa-case of (former) lawyer Mr. J.K. Franx of law firm De Brauw submitted by Shell in the American proceedings shows that Shell also takes the view that the Dutch courts have jurisdiction to judge on the present matter (exhibit 170: Declaration of J.K. Franx, 21 March 1997).

6.3 Alternative jurisdiction under forum necessitatis

137. Alternatively the claimants rely on article 9(c) CCP with regard to the jurisdiction of the Dutch courts. This article stipulates that the Dutch courts have jurisdiction in the absence of jurisdiction under art. 2 to 8 CCP, when a case that has to be initiated by summons is sufficiently connected to the Dutch legal sphere and that it is unacceptable to expect the claimant to submit the case to the judgment of a court of a foreign state.

138. The claims against SPDC are closely connected to the Dutch legal sphere since SPDC is a wholly owned subsidiary of the parent company/companies in The Hague, acted as a single entity with the parent company/companies and also received its instructions from The Hague.

139. Given the background to the case and the pivotal role that the Nigerian regime and the Nigerian legal system have played in the events, these events also having led to refugee status for Kiobel and Bera, as well as for several witnesses, the claimants cannot now be expected to submit their case to the judgment of Nigerian jurisdiction. Not only do they have no prospect of a fair trial there, a judicial process in Nigeria would plainly be traumatic and dangerous for them.

140. The judges who sat on the tribunal at the time continue to be part of the Nigerian legal system. Following the events of 1995, and despite the massive international criticism, it has not exactly put its house in order. Judge Auta in fact is currently Chief Judiciary in the federal court of Nigeria.169 Since November 2016 he has been the subject of an investigation as part of a bribery scandal within the judiciary.170

141. Large-scale corruption in Nigeria and within the Nigerian judiciary has for a long time been a clear problem.171 Consequently, a proper judicial process cannot be guaranteed in Nigeria. Regarding article 9 the Court of Appeal in The Hague has stated:

“absence of a proper judicial process […] is not in the opinion of the court an impossibility as described in article 9, preamble and under b CCP (absolute impossibility). Such a circumstance may however give rise to serious onerousness that must be taken into consideration in the context of article 9, preamble and under c CCP in the sense that it may mean that it is unacceptable to expect a claimant to submit the case to the judgment of the courts of the state in question”172

142. This is confirmed by A-G Vlas:

“art. 9(c) CCP requires that it is unacceptable to expect the claimant to submit the case to the judgment of a court of a foreign state (for example, because a proper judicial process (fair trial) in the foreign proceeding is not guaranteed)”.173

Extracts end.

Footnotes

167 Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), via: http://eur-lex.europa.eu/legal-content/NL/TXT/?uri=CELEX%3A32012R1215.

168 Cf. with regard to 6 Brussels I Regulation (currently art. 8 Brussels II Regulation): EU CofJ 27 September 1988, case 189/87, Jur. 1988, p. 5565, NJ 1990/425, m.nt. J.C. Schultsz (Kalfélis/Bank Schröder), available at: http://eur- lex.europa.eu/legal-content/NL/TXT/?uri=CELEX%3A61987CJ0189 <accessed 24 April 2017>.

169 The person in question is Ibrahim Auta, then Chairman of the Special Disturbances Tribunal (see chapter 4.3), currently Chief Judge of the Federal High Court: see the website of the Federal Judicial Service Commission: http://fjsc.gov.ng/hon-justice-ibrahim-ndahi-autaofr/ <accessed 24 April 2017>.

170 See “Chief Judge of Nigeria’s Federal High Court implicated In 1.3$ Million Bribery Arrest, 11 October 2016, available at: http://saharareporters.com/2016/10/11/chief-judge-nigeria%E2%80%99s-federal-high-court- implicated-13-million-bribery-arrest <accessed 24 April 2017>.

171 Exhibit 227: Transparency International, “Nigeria: Evidence of corruption and the influence of social norms”, 26 September 2014, p. 10. Exhibit 241: F.A.R. Adeleke & O.F. Olayanju “The role of the judiciary in combating corruption: aiding and inhibiting factors in Nigeria”, Commonwealth Law Bulletin, 2014, 40(4), pp. 604-605.

172 Court of Appeal The Hague, 15 October 2013, ECLI:NL:GHDHA:2013:3895, at 11.3.

173 Conclusion of A-G Vlas in the Supreme Court 20 February 2015, ECLI:NL:PHR:2014:2344, at 2.5.

Footnotes end

FURTHER INFORMATION ABOUT THE WRIT

The numbered paragraphs above are extracted from the English translation of a 138 page Writ of Summons served on Royal Dutch Shell companies on 28 June 2017 by Dutch Human Rights law firm Prakken d’Oliveira. They represent four widows including Esther Kiobel who hold Shell liable for the murder of their husbands individual Ogoni leaders now known collectively as the ‘Ogoni Nine‘. MOSOP Chairman Ken Saro-Wiwa was one of the group. For the purpose of this online publication, the footnotes are indicated in red text.

Disclosure: The lead claimant Esther Kiobel, Channa Samkalden of the Dutch human rights law firm Prakken d’Oliveira representing the widows, and the acclaimed human rights organisation Amnesty International, have all acknowledged the involvement of John Donovan in bringing *this case. (*See Writ of Summons in English and Dutch served on Shell 28 June 2017 – copy obtained from US Pacer public electronic court records)

Shell blanket denial: Shell’s blanket denial of any responsibility for the ‘Ogoni Nine’ executions and related events/allegations can be read here. The denial does not explain why Shell settled for $15.5 million in June 2009 a case legally and substantively the same.

The Guardian: Shell pays out $15.5m over Saro-Wiwa killing: 9 June 2009

Shell to Pay $15.5 Million to Settle Nigerian Case: The New York Times: 8 June 2009

Shell, Nigerian families settle suit for $15.5 million: Reuters: 8 June 2009

Shell to pay $15.5 million to settle Nigeria claims: CNN: 8 June 2009

Shell Settles Human Rights Suit for $15.5 Million: Fox News/AssociatedPress: 8 June 2009

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