Onder 4.4 Gerechtshof Den Haag 18 december 2015

Shell’s suggestion that Milieudefensie does not have enough knowledge and skills for the present environmental action lacks proper substantiation; that Milieudefensie neither works nor is established in the area is insufficient. For instance, there is no evidence of a relevant knowledge deficit compared to the Nigerian claimants who do live in the area, with whom Milieudefensie works together, moreover. Another argument advanced by Shell that the declaratory decision requested by Milieudefensie et al. provides no basis for a claim for damages against SPDC in the Netherlands, just as it does not in Nigeria, as under Nigerian law the time limit for a claim for damages has expired, carries no weight, either, as Milieudefensie et al.’s claims are in any case more comprehensive. No decision needs to be made, therefore, on whether this argument is correct. Other arguments submitted by Shell but dismissed by the District Court on the grounds stated earlier are: (i) that the action under art. 3:305(a) CC is not intended for the promotion by a Dutch interest group of a purely local interest abroad which is not linked in any way to the Dutch domestic jurisdiction, (ii) that Milieudefensie’s object clause in the articles of association is not specific enough to include the protection of the environment around Goi, (iii) that Milieudefensie does not perform any activities locally, and (iv) that the Goi community objects to Milieudefensie’s actions. The Court of Appeal adds the following to the discussion and dismissal of these four arguments by the District Court. There are no good grounds for a restriction of the scope of application of art. 3:305(a) CC as proposed by Shell in its first argument. Moreover, there is a sufficient link with the Dutch domestic jurisdiction, namely to the extent that the existence and scope of the duty of care of the parent company having its headquarters in the Netherlands have been submitted for review. This is not affected by the fact that this review will occur under Nigerian law. The arguments (ii) and (iii) do not succeed because sufficient ties exist between Milieudefensie’s object clause in the articles of association and its claim, while it has also undertaken enough activities, such as, inter alia , campaigning, organizing rallies, carrying out investigations, etc. The last argument (iv) concerning the alleged objections of the Goi community has been negated sufficiently by Milieudefensie by the statements submitted on her part and is not decisive in other respects, either, in view of the provision of art. 3:305(a)(5) CC.

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