Transnational Experts Wanted: Nigerian Oil Spills before the Dutch Courts

Abstract

This analysis recapitulates the Hague Court of Appeal’s decisions in a series of lawsuits brought by Nigerian farmers against Dutch oil giant Shell. The ruling upholds Shell’s civil liability for the pollution ensuing from several oil spills and has been widely hailed as a blueprint for similar claims before European courts. Beyond these headlines, the judgment charters unexplored legal territories and elicits burning questions about judicial and environmental expertise in complex transnational settings. I propose a three-pronged analysis to cut through this complexity. First, the case deals with the international ‘anchor’ jurisdiction of Dutch courts over claims against foreign defendants. Secondly, the ruling marks a significant contribution to the jurisprudence on tort liability across corporate structures. Finally, the verdict sheds a new light on the interplay between environmental rights and tort actions. The confluence of these three perspectives projects a kaleidoscopic vision of environmental liability across borders.

Environmental Rule of Law: Tracking Progress and Charting Future Directions

“…One of the core issues in the case was whether the court had competence over a foreign damage, foreign claimants, and foreign defendants. This was the first time a company and its foreign subsidiary had been tried-and held liablein Netherlands for allegedly breaching duty of care abroad (Bertram 2021;Brown 2021).…”

Judicializing Environmental Governance? The Case of Transnational Corporate Accountability

“…For a long time, the Netherlands hardly had any record of transnational civil litigation against corporations (Jägers and van der Heijden 2008). This situation changed rapidly in the last decade, with a preliminary culmination in January 2021, when the Court of Appeal in the Hague issued a final ruling in a string of three lawsuits brought by Nigerian farmers against the Dutch oil giant Royal Dutch Shell (Bertram 2021). Shell's Nigerian subsidiary has long been accused of causing serious human rights violations and ecologically devastating oil spills in the Niger Delta region (Enneking 2019).…”

“…In virtually all extraterritorial litigation of the type discussed, European courts are not creating new norms so much as they are enforcing existing standards in foreign and international human rights and environmental law through private legal mechanisms (Enneking 2019, 542-546;van Loon 2018, 302-303). Even though accusations of normative imposition can therefore be dispelled, a residual degree of illegitimacy remains by virtue of the fact that domestic courts follow their own rules of civil procedure, in the creation of which foreign actors had no say (Bertram 2021). This point may seem pedantic, but as the litigations analyzed above show, procedural traditions can have definitive effects on case outcomes and should thus be taken seriously.…”