Onder 3.6 Gerechtshof Den Haag 18 december 2015

The above does not change because the legal bases of the claims against SPDC and RDS differ, or at least do not coincide altogether (cf., inter alia, ECJ 11 October 2007, C-98/06, ECLI:EU:C:2007:595 Freeport/Arnoldson ). Also incorrect is the contention based on the Painer judgment referred to before that it was not foreseeable for SPDC that they would be summoned before a another court than the Nigerian court, or as the case may be, before a Dutch court (irrespective of whether this requirement is applicable in the context of art. 7(1) CCP); in the light of (i) the ongoing developments in the field of foreign direct liability claims (cf. the cases instituted in the USA against Shell for the alleged involvement of the company in human rights violations; Bowoto v. Chevron Texaco (09-15641); Kiobel v Royal Dutch Petroleum Co ., 133 S. Ct. 1659 (2013), as well as Lubbe v. Cape Plc . [2000] UKHL 41), added to (ii) the many oil spills that occurred annually during the extraction of oil in Nigeria, (iii) the legal actions that have been conducted for many years about this (for over 60 years according to Shell), (iv) the problems these oil spills present to humans and the environment and (v) the increased attention for such problems, it must have been reasonably foreseeable for RDS as parent and SPDC as operational division of the Shell group that in the long run RDS could be targeted, in which case SPDC, which had been taken to court in Nigeria before, could well be summoned before a court with jurisdiction with regard to RDS. As an aside it is pointed out in this regard that SPDC has been taken to court in the UK for other spills (spills from the same pipeline between 2008 and 2009, but then near the village of Bodo): The Bodo Community and Others v SPDC [2014] EWHC 1973 (TCC). The SPDC did not contest the jurisdiction of the UK courts, as it says that the spills concerned were ‘operational spills ’ for which it accepted liability. The foreseeability in question, however, does not stand or fall with whether or not SPDC accepts liability. The SPDC’s contention that the spills in the present case occurred in Nigeria and that Nigerian law is applicable to them, so that the case had best be assessed by a court in its home country, Nigeria, carries insufficient weight compared to the aspects pleading in favour of a joint hearing.

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