THE SHELL LEAKS FILES: 29 AUGUST 2026
SLF-2007-041
The Sakhalin Papers XXXI: The Judicial Review That Never Reached Judgment — WWF, The Corner House and the Unanswered Legality Question
In August 2007, WWF-UK and The Corner House asked the Administrative Court to examine a question created by a three-year-old ECGD letter: could Britain’s export-credit agency make a legally binding conditional commitment to support Sakhalin II contracts before completing its environmental assessment — and while the very British supplies it was supposed to “facilitate” were already being delivered? The pleadings survive. The arguments survive. The judgment does not. Sakhalin Energy withdrew its application before the case could be decided.
Archive reference: SLF-2007-041
Collection: The Sakhalin Papers
Principal legal record: R (WWF-UK and The Corner House Research) v Secretary of State for Business, Enterprise and Regulatory Reform — Statement of Facts and Grounds, dated 11 August 2007
Supporting records: Royal Dutch Petroleum Company/The “Shell” Transport and Trading Company Form 6-K, May 2003; WWF and Corner House witness material; contemporaneous reporting by The Guardian; Sakhalin Energy statements reported by Interfax; Parliamentary material concerning ECGD and Sakhalin II
Evidence standard: The allegations in the judicial-review papers are identified as allegations advanced by the claimants. They are not court findings. ECGD’s responses are identified separately. Sakhalin Energy’s withdrawal of its financing application is not treated as an admission of illegality or environmental wrongdoing. No court adjudicated the merits of this judicial review.
Introduction
The previous Shell Leaks File examined a deceptively simple document.
On 4 March 2004, Britain’s Export Credits Guarantee Department sent Sakhalin Energy Investment Company Ltd a letter headed:
“Confirmation of conditional support.”
The letter did not constitute the final approximately $650 million ECGD guarantee being contemplated for the Sakhalin II project.
But neither was it merely a casual expression of interest.
By 2007, ECGD acknowledged that the commitment was binding if the stipulated conditions were satisfied.
That left an awkward question.
What happens when a government department makes a binding conditional commitment before completing the environmental assessment upon which one of those conditions depends?
WWF-UK and The Corner House decided to ask a judge.
On 15 August 2007, they filed judicial-review proceedings challenging the legality of the March 2004 decision. (thecornerhouse.org.uk)
The case potentially placed several aspects of Britain’s handling of Sakhalin II under judicial scrutiny:
the timing of ECGD’s environmental assessment;
the legal meaning of its statutory duty to facilitate British exports;
the status of its conditional commitment;
the adequacy of consultation;
and whether a support decision could still lawfully be made once much of the relevant procurement and construction had already occurred.
The court papers survive.
But the hearing never produced a judgment.
That absence is the central fact of this file.
1. The Court Papers Identified the Decision Precisely
The claimants did not simply challenge “British support for Shell” in general terms.
Their Statement of Facts and Grounds identified a specific administrative decision:
the 4 March 2004 decision by the Secretary of State, acting through ECGD, to give conditional support in relation to specified preliminary contracts for Sakhalin II.
The pleading also challenged ECGD’s continuing position, reflected in correspondence during 2007, that the March 2004 commitment remained legally binding if its conditions were fulfilled.
The relief sought was correspondingly serious.
WWF and The Corner House asked the Administrative Court either to declare that the 2004 decision had no legal effect or to quash it, and to prevent ECGD from providing support for the preliminary contracts on the basis of that decision.
These were remedies being requested.
They were never granted.
2. This Was a Case About Government Power, Not a Trial of Shell
That distinction is essential.
Judicial review examines the lawfulness of decisions made by public authorities.
WWF and The Corner House were challenging the conduct and legal powers of the British Government’s export-credit agency.
The proceeding was not a civil damages action against Shell.
It was not a prosecution.
It was not a trial to determine whether Sakhalin Energy had caused particular environmental damage.
It was not a proceeding to determine whether Shell had violated Russian environmental law.
Shell’s involvement was nevertheless central to the historical context because Sakhalin Energy was controlled by the Royal Dutch/Shell Group when the Phase 2 investment decision was made and when ECGD issued its March 2004 letter.
An authenticated Shell filing with the US Securities and Exchange Commission records that, in May 2003, Sakhalin Energy was a 55 per cent Royal Dutch/Shell Group company, with Mitsui holding 25 per cent and Mitsubishi 20 per cent. (SEC)
So although the defendant in the judicial review was the British Secretary of State, the financing under examination concerned a project then controlled by Shell.
3. Shell’s Own Filing Fixes the Environmental Chronology
The May 2003 Shell regulatory filing is important for another reason.
It announced the shareholders’ positive investment decision to proceed with Sakhalin II Phase 2, then estimated at approximately $10 billion.
Shell described it as the largest single foreign direct-investment project in Russia and one of extraordinary industrial scale.
But the same Shell document also recorded that final approval stages for the project’s design and construction documentation — including what Shell described as a substantial environmental impact assessment — were still progressing. (SEC)
That chronology later became important to the judicial-review challenge.
The investment decision had been taken.
Contracting was advancing.
Construction subsequently began.
The environmental assessment and lender due diligence were still developing.
Then ECGD issued its conditional commitment.
WWF and The Corner House argued that the sequence was legally defective.
Again, that was their case.
No judge ultimately decided whether they were right.
4. The Statutory Words at the Centre of the Dispute
The claim involved an apparently innocuous phrase in the Export and Investment Guarantees Act 1991.
At the relevant time, the legislation empowered the Secretary of State to make arrangements:
“with a view to facilitating”
supplies of goods or services by UK businesses to businesses overseas.
That wording mattered.
The claimants argued that ECGD’s power was not an unrestricted authority to subsidise or insure any overseas transaction involving British suppliers.
The statutory purpose was to facilitate those supplies. (thecornerhouse.org.uk)
From that proposition arose one of the most technically interesting questions in the entire Sakhalin financing story.
What happens if the goods and services have already largely been supplied before ECGD finally completes its assessment?
Can government support still be said to have facilitated something that has already happened?
5. Two Clocks Were Running
The claimants’ case effectively identified two clocks.
The first was the environmental clock.
ECGD said environmental and social impacts had to be assessed before final support was given.
That process was lengthy.
The second was the commercial clock.
Sakhalin II was already proceeding.
Contracts were being performed.
Construction was advancing.
British suppliers were doing work.
WWF and The Corner House argued that these clocks created a legal dilemma.
If ECGD waited until the environmental assessment was properly completed, some of the supplies it was supposed to facilitate might already have been delivered.
But if ECGD committed itself early enough to affect those supplies, it risked doing so before completing the environmental assessment.
Their allegation was that ECGD attempted to solve this problem in March 2004 by separating the two stages:
make the eligibility commitment now;
complete the environmental assessment later;
and make satisfaction of the environmental requirements a condition of eventual support.
The claimants argued that this solution was unlawful. (thecornerhouse.org.uk)
ECGD disagreed.
6. Ground One: Had ECGD Predetermined the “Facilitation” Question?
One ground attacked the March 2004 decision as an unlawful predetermination.
The claimants argued that whether ECGD support genuinely facilitated British exports had to be assessed when the support decision was actually made.
Instead, they said, ECGD had effectively fixed that question in 2004 by making the conditional commitment, even though the financing and environmental process continued for years.
By 2007, according to the claimants, performance of the preliminary contracts had advanced to the point that the original facilitation rationale was questionable.
Their contention was therefore not merely:
the project is too far advanced.
It was more technical:
ECGD cannot preserve a statutory power indefinitely by determining years earlier that future financial support will count as facilitating supplies, regardless of what happens to those supplies in the meantime.(thecornerhouse.org.uk)
That proposition was never tested by a judgment.
7. Ground Two: Could ECGD Commit Before Completing the Environmental Assessment?
The environmental ground went to the heart of ECGD’s own procedures.
The court papers referred to international standards and ECGD’s Case Impact Analysis Process.
Sakhalin II was treated as a high-impact project requiring substantial environmental assessment.
The claimants pointed in particular to ECGD material indicating that preliminary indications of cover were normally given without commitment, with more detailed assessment required before a commitment was made.
Yet the March 2004 Sakhalin letter was different.
ECGD later accepted that it was binding if its conditions were satisfied. (thecornerhouse.org.uk)
The parties were not apparently arguing about whether ECGD possessed all the environmental information necessary for a final support decision in March 2004.
It did not.
That was why the environmental condition was included.
The legal disagreement concerned what ECGD was entitled to do while that assessment remained incomplete.
WWF and The Corner House argued that the Department could not make a binding commitment first and perform the required environmental assessment afterwards.
ECGD’s position, as reproduced in the claimants’ papers, was materially different.
The Department relied upon the flexibility within its procedures and the exercise of professional judgment in the circumstances of individual cases. It did not accept that its policies created the rigid legal prohibition alleged by the claimants. (thecornerhouse.org.uk)
That competing interpretation was precisely the sort of issue a judicial-review judgment might have resolved.
There was never such a judgment.
8. A Subtle but Important Point About the EIA Argument
The claimants were not simply asserting that ECGD was itself a Russian planning authority obliged by statute to conduct the project’s environmental impact assessment.
Their case was more nuanced.
ECGD had adopted environmental and social assessment procedures governing the exercise of its export-credit functions.
WWF and The Corner House argued that, once those policies were adopted, ECGD had to apply them lawfully and could not evade their purpose by making a binding commitment before the relevant assessment was complete.
ECGD disputed that interpretation of its procedures.
This distinction matters because it prevents a later historical account from exaggerating the case into something it was not.
The judicial review was fundamentally about the lawful exercise of ECGD’s own public powers and policies.
It was not an environmental-liability trial against Shell.
9. Ground Three: Was Anything Left to “Facilitate”?
A separate ground returned to the statutory language.
The claimants argued that ECGD needed evidence that its support would make some concrete difference to the supply of British goods or services.
Sakhalin Energy itself was not the British exporter.
The rationale for ECGD involvement was that UK suppliers and contractors participating in Sakhalin II would benefit from government-backed financial arrangements.
WWF and The Corner House argued that, as the relevant contracts progressed, ECGD needed to consider whether its involvement was still genuinely facilitating those supplies.
They alleged that the Department had not lawfully addressed that question. (thecornerhouse.org.uk)
Again:
allegation, not finding.
10. Ground Four: Consultation
Then came consultation.
ECGD had opened a process through which environmental organisations and other interested parties could submit information and concerns concerning Sakhalin II.
The claimants argued that once a public authority undertakes consultation, it must conduct that consultation fairly.
Their case relied upon familiar public-law principles:
consultation should occur while proposals remain genuinely formative;
participants should receive sufficient information to respond intelligently;
they should have adequate time;
and their responses should be conscientiously considered before the decision is made.
WWF and The Corner House alleged that the March 2004 binding commitment undermined that process because a legally significant decision had already been taken before subsequent consultation and assessment were complete. (thecornerhouse.org.uk)
ECGD did not accept that its final decision had been predetermined.
From the Department’s perspective, environmental issues remained open and no final guarantee had been issued.
11. That Produced the Central Paradox
This was the puzzle already encountered in yesterday’s Shell Leaks File.
ECGD could say:
No final decision to support the project has been made.
And simultaneously:
The March 2004 conditional commitment is binding if its conditions are met.
To campaigners, those propositions demonstrated the problem.
To ECGD, they described two different stages of the process.
The first concerned eligibility and conditional contractual support for identified contracts.
The second concerned the final substantive decision whether ECGD’s conditions had been met and whether cover should actually be issued.
The judicial-review proceedings offered the possibility that a court would determine the legal consequences of that distinction.
12. ECGD Said the Challenge Was Premature
The surviving claimants’ grounds reproduce another important part of ECGD’s response.
The Department maintained that no decision to support the project had been made and argued that environmental issues remained open.
On that basis, ECGD contended that aspects of the judicial review were premature.
It also challenged whether WWF had standing to contest what it regarded as a commercial eligibility decision distinct from the environmental questions in which WWF had an obvious interest. (thecornerhouse.org.uk)
The claimants responded that this missed the central point.
Their challenge was not directed only at a hypothetical future guarantee.
They said there was already an existing legally binding commitment dating from March 2004.
In their view, that was a decision capable of judicial review then and there.
The case thus contained an unusual threshold dispute:
Had a sufficiently final decision already been made to be challenged, or had the genuinely important decision not yet occurred?
13. The Claimants Wanted the 2004 Commitment Neutralised
WWF and The Corner House were not merely seeking a declaration for historical interest.
Their pleaded remedies included an order declaring that the March 2004 decision had no legal effect or quashing that decision.
They also sought to prevent ECGD from relying upon it to provide support for the preliminary contracts. (thecornerhouse.org.uk)
Had the claim proceeded and succeeded, the consequences could therefore have been practical.
But “could have” is as far as the documentary record permits us to go.
No such order was made.
14. The Case Became Public on 15 August 2007
WWF and The Corner House publicly announced the proceedings on 15 August 2007.
Their public presentation was strongly critical of ECGD and of Sakhalin II.
They argued that the Government had entered a binding financial commitment while continuing to tell Parliament that no final support decision had been taken. (thecornerhouse.org.uk)
Their witness material set out years of engagement with ECGD and the environmental objections raised by NGOs, consultants and others concerning Sakhalin II. Nicholas Hildyard’s Corner House witness statement specifically focused on the alleged separation between environmental assessment and the Department’s binding commitment. (thecornerhouse.org.uk)
Those documents are useful primary material for understanding the claimants’ case.
They should not be mistaken for independent findings of fact.
15. The Guardian Recorded ECGD’s Defence
The following day, 16 August 2007, The Guardian reported the legal action.
Its report is valuable because it did not merely reproduce the campaigners’ case.
It also recorded ECGD’s contemporary response.
The Department rejected the challenge and maintained that no final insurance cover had been given.
According to the newspaper, ECGD emphasised that no cover was in place, no premium had been received and no British taxpayer money was then at risk. (The Guardian)
That is an important part of the evidential record.
It demonstrates that ECGD was not concealing its interpretation once the dispute became public.
The parties fundamentally disagreed about the legal significance of the March 2004 commitment.
WWF and The Corner House emphasised its binding character.
ECGD emphasised the conditions still outstanding and the absence of a final guarantee.
A court was potentially going to have to decide which consequences followed from those facts.
16. By Then Shell Had Lost Control of Sakhalin Energy
There is another chronological complication.
When ECGD issued the March 2004 letter, Shell controlled Sakhalin Energy with a 55 per cent interest.
By the time the judicial review was filed in August 2007, that had changed.
Gazprom had acquired control earlier that year, reducing Shell’s interest to 27.5 per cent.
The ownership change does not retroactively alter the origin of the ECGD commitment.
The financing application and much of the environmental scrutiny arose while Sakhalin II was Shell-led.
But by the time the British court proceedings were gathering momentum, Shell was no longer the project’s controlling shareholder.
That distinction is particularly important in a historical series bearing Shell’s name.
Responsibility for events must be tied to the relevant date, not transferred indiscriminately across the entire life of the project.
17. The Hearing Never Happened
The litigation continued into 2008.
Then the underlying financing application disappeared.
On 29 February 2008, Sakhalin Energy withdrew its applications for support from ECGD and the US Export-Import Bank.
Contemporaneous Interfax reporting several days later quoted Sakhalin Energy’s Moscow representative, Igor Ignatiev, explaining that there was serious uncertainty over how long the two export-credit agencies would take to complete their consideration and reach final decisions. He rejected any suggestion of a political connection with the Russian presidential election. (Interfax.ru)
The Corner House subsequently recorded that the judicial review had been due to be heard about a month later and said the legal proceedings were among the factors contributing to financing delays. Following Sakhalin Energy’s withdrawal, WWF and The Corner House decided not to continue with the case. (thecornerhouse.org.uk)
Those two sources should be read together.
Sakhalin Energy publicly emphasised uncertainty and delay in the financing timetable.
The campaigners attributed significance to the pending judicial review.
There is no judgment establishing that Sakhalin Energy withdrew because it feared losing the case.
18. Withdrawal Was Not a Legal Victory on the Merits
This is where historical retellings can easily go wrong.
WWF and The Corner House had succeeded in bringing the issue toward a hearing.
Sakhalin Energy’s withdrawal then removed the practical financing decision around which the litigation revolved.
But that does not mean the Administrative Court ruled that ECGD had acted unlawfully.
It did not.
Nor did the withdrawal constitute a judicial declaration that the campaigners’ interpretation of ECGD policy was correct.
No judge ruled upon:
whether the March 2004 commitment unlawfully predetermined the statutory facilitation question;
whether ECGD had been prohibited from giving conditional support before completing its environmental assessment;
whether the Department had failed to facilitate UK exports within the meaning of the 1991 Act;
or whether its consultation process rendered the decision unlawful.
The questions survived.
The case did not.
19. Nor Did ECGD Win
The reverse proposition is equally important.
Because the claim was discontinued after the application was withdrawn, ECGD did not obtain a judgment vindicating its interpretation either.
There was no judicial ruling that the March 2004 arrangement was lawful.
There was no judgment accepting ECGD’s contention that its procedures allowed this form of binding conditional commitment.
There was no ruling rejecting the claimants’ statutory argument.
There was no judgment deciding the standing or prematurity disputes.
Consequently, neither side can legitimately point to this judicial review as a merits judgment in its favour.
The lawfulness question remained unresolved.
20. Do Not Confuse This With the Other Sakhalin High Court Case
The distinction is particularly important because another British Sakhalin case did produce a High Court judgment.
That was the litigation concerning access to environmental information involving Friends of the Earth and ECGD.
In that separate proceeding, the Information Tribunal had ordered disclosure of interdepartmental environmental material, and Mr Justice Mitting subsequently dismissed ECGD’s appeal in March 2008.
That was an actual judicial decision.
The WWF/Corner House proceeding examined here was different.
It challenged the legality of the March 2004 conditional-support decision itself.
That case produced no merits judgment.
The existence of one Sakhalin High Court judgment must not be used to create another that never happened.
21. An Extraordinary Timing Detail
There is nevertheless a striking historical sequence.
For years, ECGD examined whether to provide hundreds of millions of dollars of support for Sakhalin II.
The environmental process generated enormous quantities of material.
Campaigners obtained the March 2004 conditional-support letter.
They challenged it.
The case moved toward hearing.
And then, before a court could determine whether the commitment had been lawful, the applicant decided it no longer required the British support.
The contemplated ECGD financing vanished.
The legal question vanished with it.
Not because a judge answered it.
Because the commercial circumstances removed the need for an answer.
22. Yet the Statutory Problem Did Not Vanish Forever
There is a final documentary twist.
The claimants’ argument concerning the meaning of “facilitating” exports may sound like an obscure technical dispute peculiar to one Russian energy project.
It was not destined to remain obscure.
In 2009, Parliament legislated to amend ECGD’s statutory powers.
The Industry and Exports (Financial Support) Bill replaced the old formulation with authority to make arrangements “in connection with” overseas supplies.
More strikingly, the legislation expressly provided that arrangements could relate to goods or services already supplied before the arrangements were made. (Parliament Publications)
That legislative change maps remarkably closely onto one of the practical problems raised in the Sakhalin pleadings.
But caution is required.
Similarity is not causation.
The existence of the Sakhalin challenge does not by itself prove that Parliament subsequently changed the law because of Sakhalin II.
That question requires its own documentary examination.
And that is where the next Shell Leaks File will go.
Documentary Findings
Established
The Royal Dutch/Shell Group held 55 per cent of Sakhalin Energy when the shareholders approved Sakhalin II Phase 2 in May 2003. Shell’s SEC filing estimated the investment at approximately $10 billion and recorded that final approval work concerning project documentation, including substantial environmental-impact assessment, was still progressing. (SEC)
ECGD issued its conditional-support letter on 4 March 2004.
WWF-UK and The Corner House filed judicial-review proceedings on 15 August 2007 challenging the legality of that decision and ECGD’s continuing position that the conditional commitment was binding if its conditions were satisfied.
The judicial-review grounds raised questions concerning ECGD’s statutory export-facilitation power, the timing of environmental assessment, consultation and the legal effect of the conditional commitment. (thecornerhouse.org.uk)
ECGD disputed the claimants’ interpretation and maintained that no final project-support decision had been made.
Contemporaneous reporting recorded ECGD’s position that no cover was in place, no premium had been received and no British taxpayer money was then at risk. (The Guardian)
Sakhalin Energy withdrew its ECGD and US Ex-Im applications on 29 February 2008.
Interfax reported Sakhalin Energy’s explanation that considerable uncertainty existed over the timing of final decisions by the agencies. (Interfax.ru)
Following the withdrawal, WWF and The Corner House did not pursue their judicial review to judgment. (thecornerhouse.org.uk)
No merits judgment exists in this proceeding.
Alleged in the Judicial Review — Never Adjudicated
WWF and The Corner House alleged that ECGD unlawfully predetermined whether its support would facilitate British exports.
They alleged that ECGD could not lawfully enter a binding conditional commitment before completing the relevant environmental assessment.
They alleged that the Department had not properly established that the proposed support would continue to facilitate UK supplies as required by the legislation then in force.
They alleged deficiencies in consultation and disclosure surrounding the 2004 decision.
They sought to have the conditional commitment declared ineffective or quashed.
These propositions were legal arguments advanced by the claimants.
They did not become judicial findings.
ECGD’s Position
ECGD maintained that the ultimate support decision remained outstanding.
It treated environmental and social issues as matters still requiring assessment before a final guarantee could be issued.
Its position, as reflected in the claimants’ papers, relied upon flexibility and professional judgment within its environmental procedures.
It disputed the proposition that the March 2004 conditional commitment amounted to the final project-support decision.
It also raised arguments concerning the prematurity of the proceedings and the claimants’ standing in relation to aspects of the commercial eligibility decision. (thecornerhouse.org.uk)
Those propositions likewise never received definitive judicial endorsement in this proceeding.
Not Established
It is not established that the Administrative Court found ECGD’s March 2004 commitment unlawful.
It is not established that the court found the commitment lawful.
It is not established that WWF or The Corner House won the case on its merits.
It is not established that ECGD won the case on its merits.
It is not established that Shell or Sakhalin Energy was found environmentally liable in this proceeding.
It is not established that ministers deliberately misled Parliament.
It is not established that Sakhalin Energy withdrew its ECGD application because it expected to lose the judicial review.
And the withdrawal itself was not an admission of wrongdoing.
Commentary
The historical importance of this case lies partly in the judgment that does not exist.
Most litigation becomes easier to describe once a judge resolves the competing legal arguments.
This one became harder.
The March 2004 document undeniably existed.
Its conditions undeniably existed.
The continuing environmental assessment undeniably existed.
ECGD’s later recognition of the conditional commitment’s binding character existed.
The claimants’ challenge existed.
ECGD’s defence existed.
The financing application then disappeared.
And with it disappeared the opportunity for a court to determine what all those facts meant in law.
That makes restraint unusually important.
It would be easy, looking backwards, to turn the sequence into a morality play in which one side was proved right and the other wrong.
The surviving record does not permit that.
What it permits is something more interesting.
It shows a British government department attempting to reconcile export promotion, environmental due diligence and a huge project whose commercial timetable was moving faster than the public financing process.
It shows campaigners identifying a potential legal collision between those objectives.
And it shows the collision reaching the doors of the Administrative Court before the underlying financing transaction was removed.
A legal issue can remain unresolved and still be historically significant.
The Sakhalin judicial review is an unusually good example.
Source Record
The principal legal source is the Statement of Facts and Grounds in R (WWF-UK and The Corner House Research) v Secretary of State for Business, Enterprise and Regulatory Reform, dated 11 August 2007 and filed as part of the Administrative Court challenge announced on 15 August. It identifies the March 2004 decision under challenge, the statutory and procedural grounds advanced, ECGD’s pre-action position and the remedies sought. The document is treated throughout this instalment as a pleading, not as a judgment. (thecornerhouse.org.uk)
The authenticated Shell corporate record is the May 2003 Royal Dutch Petroleum Company/The “Shell” Transport and Trading Company Form 6-K filed with the US Securities and Exchange Commission. It confirms Shell’s 55 per cent interest, the Phase 2 investment decision, the then approximately $10 billion cost and the continuing approval work concerning environmental assessment. (SEC)
The campaigners’ contemporaneous record includes the 15 August 2007 WWF/Corner House announcement and supporting witness material, which document their reasons for bringing the proceedings and their interpretation of ECGD policy. These sources represent the claimants’ case and are labelled accordingly. (thecornerhouse.org.uk)
Independent contemporaneous reporting is supplied by The Guardian, 16 August 2007, which recorded both the campaigners’ allegations and ECGD’s response that no final cover had been issued. (The Guardian)
The termination of the financing application is independently documented by Interfax on 3 March 2008, quoting Sakhalin Energy concerning uncertainty over the timetable for final ECGD and US Ex-Im decisions. (Interfax.ru)
The subsequent history of the abandoned judicial review is recorded by The Corner House, which confirms that WWF and The Corner House decided not to proceed after Sakhalin Energy withdrew its ECGD application. (thecornerhouse.org.uk)
Archive disclaimer: Judicial-review pleadings record allegations and legal arguments, not findings. The WWF/Corner House Sakhalin proceeding ended without a merits judgment after Sakhalin Energy withdrew its ECGD application. Nothing in this instalment should be read as asserting that a court found ECGD, Shell, Sakhalin Energy or any minister to have acted unlawfully where no such finding exists.
Site wide disclaimer also applies.
Next Archive File
SLF-2007-042 — The Sakhalin Papers XXXII: After “Facilitating” — When Parliament Rewrote Britain’s Export-Credit Law
One of the most technical arguments in the abandoned Sakhalin judicial review concerned just three words:
“with a view to facilitating.”
WWF and The Corner House argued that ECGD could not use its statutory powers to facilitate British exports if the relevant goods and services had already largely been supplied by the time financial support was approved.
No court decided whether that interpretation was correct.
Then, in 2009, Parliament changed the law.
The replacement wording authorised ECGD support “in connection with” overseas supplies — and expressly permitted support relating to goods or services supplied before the government arrangements were made. (Parliament Publications)
The resemblance to the problem identified in the Sakhalin litigation is difficult to miss.
But resemblance is not proof of causation.
SLF-2007-042 will examine the 2009 Bill, its Parliamentary explanation and the surviving ECGD record to determine exactly why the law was changed — and whether the legal problem exposed by Sakhalin II formed part of the story.
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