Onder 3.2 Gerechtshof Den Haag 18 december 2015

Although SPDC repeated all these contentions on appeal, it concluded in the final analysis that the test that should be applied is whether the claims against RDS could possibly be awarded, which SPDC did not believe is possible because the spill (of 10 October 2004) had occurred before RDS became in charge of the Shell Group on 20 July 2005. This circumstance does not mean that RDS’s liability for the consequences of a failure [of supervision] of the previous group management and/or obligation to prevent new spills and clean up the existing pollution can be excluded straightaway. There is also the argument by Milieudefensie et al., about which the District Court has not given an opinion, that the merger of Shell Petroleum and Shell T&T into the new ‘umbrella’ or parent company RDS - the unification process, which at first glance looks similar to the triangular merger under Dutch law, cf. art. 2:309 in conjunction with art. 2:333(a) CC - is first and foremost a ‘paper transition’, here abused by RDS to avoid liability. This argument, if not abandoned on appeal, must be assessed against the applicable incorporation law and requires further (factual) investigation, which is not yet at issue. As far as the test referred to by SPDC is concerned (mentioned in the first sentence of 3.2 above), this is implicit in the requirement of connection as provided in art. 7(1) CCP. If it is clear in advance that the claims against RDS (the so-called ‘anchor claims’) are obviously bound to fail and for that reason cannot possibly be allowed, it is hard to imagine that reasons of efficiency nonetheless justify a joint hearing. There is no question of a claim that is ‘certain to fail’, however, now that it cannot be ruled out in advance that a parent company may, in certain circumstances, be liable for damages resulting from acts or omissions of a (sub)subsidiary. Incidentally, SPDC did not argue the opposite; it only believed, predominantly for reasons of fact, that such circumstances do not present themselves here, just as the District Court ruled, but this will be the subject in dispute in the next stage of the appeal (hereinafter: stage 2), while it has not yet been established that SPDC is right and that, for example, RDS is also exempt from liability under Nigerian law if, as Milieudefensie et al. argue, the spill and the ensuing damage were the foreseeable consequence of a maintenance / corrosion problem due to systematic failure of SPDC, which the parent company had been aware of for a long time, but did not do anything about, although it could very well have done so on the basis of knowledge, possibilities and means. Considering the foreseeable serious consequences of oil spills to the local environment from a potential spill source, it cannot be ruled out from the outset that the parent company may be expected in such a case to take an interest in preventing spills (or in other words, that there is a duty of care in accordance with the criteria set out in Caparo v Dickman [1990] UKHL 2, [1990] 1 All ER 56 ), the more so if it has made the prevention of environmental damage by the activities of group companies a spearhead and is, to a certain degree, actively involved in and managing the business operations of such companies, which is not to say that without this attention and involvement a violation of the duty of care is unthinkable and that culpable negligence with regard to the said interests can never result in liability. This is not altered by the fact that, as Shell argues, there are no decisions by Nigerian courts in which group liability is accepted on these grounds, for this does not mean that Nigerian law by definition provides no basis for assuming (a violation of) a duty of care to the parent company under those circumstances, for instance in the context of cleaning up pollution and preventing repeated spills. As Nigerian law as a common law system is based on English law, and common law, especially English case-law are important sources of Nigerian law, a basis could also be found in decisions such as in the case of Chandler v Cape [2012] EWCA Civ 525. That the latter decision -which does not exclude that other circumstances than those presenting themselves in that case may lead to a duty of care for the parent company- cannot constitute a precedent (to the detriment of RDS) in any respect in such circumstances as set out above is not an established fact, and, particularly, does not follow from the later decision in Thompson v The Renwick Group Plc [2014] EWCA Civ 635 about a case that was not similar in all respects, as it concerned a pure holding company, with subsidiaries performing greatly diverging operational activities - cf. on the one hand point 33 of the latter decision (about the scope of Chandler v Cape): ‘ It is clear that Arden LJ intended this formulation to be descriptive of circumstances in which a duty might be imposed rather than exhaustive of the circumstances in which a duty may be imposed.’ and on the other hand point 36 (about the divergence): ‘The mere recitation of these factors demonstrates how far removed from Chandler v Cape is this case.’ It seems that the decision in Thompson v The Renwick Group Plc indicates that a clear correlation is required between the damage incurred and the role the parent company played within the group; the crux according to Tomlinson LJ being that there is a situation in which the parent company, due to ‘ its superior knowledge or expertise’ ’is better placed’ to intervene (point 37). Whether such a situation has arisen -which Shell challenges, with substantiation, for instance by pointing out the degree of discretion of the operating company in applying standards not prescribed by the parent company- and whether in other respects sufficient support can be found in Chandler v Cape will be assessed, if necessary, after further debate in stage 2 of the appeal. Point of departure in the application of Nigerian law will then be, amongst other things, that it is not up to a Dutch court to start an entirely new legal development in Nigerian law. For now this issue can wait.

$ curl -s https://bron.page/api/v1/blobs/de8feb9f0194be3387388a193625674a6efa5f71b1f8db026b54aca27981e24c | shasum -a 256