Guest post by Marie-José van der Heijden

Dutch court holds Nigerian subsidiary of Shell civilly liable for oil pollution in Nigeria

On 30 January 2013, the Dutch district court of The Hague has held a Nigerian subsidiary of Shell, Shell Petroleum Development Company of Nigeria (SPDC) Ltd., civilly liable for oil pollution near the community Ikot Ada Ido in Nigeria. Five cases against the multinational Shell were brought before the Dutch court by Milieudefensie (the Dutch branch of Friends of the Earth) and four Nigerian farmers. The Dutch court dismissed all the other four claims against Shell. Notably, the Shell parent companies are not held liable. However, in one case Shell must pay compensation to the Nigerian farmer and fisherman Mr. Akpan, who sustained damages because of the two oil leakages of the oil installation of the operator SPDC. The amount of the compensation will be fixed in a separate procedure. Parties may appeal the decisions.

(District Court of The Hague 30 January 2013, LJN BY9854, available at: http://www.rechtspraak.nl; see also BY9850 and BY9845.)

Several years ago, four Nigerians joined by Milieudefensie brought proceedings against four legal persons of Shell with headquarters in The Hague before the Dutch district court. They claimed that Shell is responsible for the oil pollution near their villages in Nigeria (para. 3). Four oil leakages caused the sustained environmental damage. However, the court held that the oil leakages were not caused by alleged negligent maintenance by Shell, but the leakages were caused by sabotage by third parties. As Nigerian law applied to the case – for the damages were sustained in Nigeria – civil liability of the Shell companies had to be decided according to Nigerian tort law. With regard to the oil leakages near the village of Goi in 2004 and near the village of Oruma in 2005 respectively, SPDC had taken sufficient measures to prevent sabotage to its underground oil pipes. In case of sabotage, the main Nigerian legal rule is that the operator is not liable for the damage (para. 4.40). In accordance with this rule, the Dutch court therefore dismissed the claims in these four cases against Oguru, Efanga, and Dooh.

On the other hand, with regard to the two oil leakages near the village of Ikot Ada Udo the court held that SPDC breached its duty of care under the tort of negligence. In that case, the sabotage by tampering of the wellhead could have been easily done by applying a wrench to the valves. In Nigerian law, the operator can however be held liable in case of sabotage in case the operator has taken insufficient measures to limit or mitigate the risk of sabotage of a specific oil pipe of the oil installation. According to the court the requirements to hold an operator liable in case of sabotage are found in the Nigerian precedent or legal authority of Shell Petroleum Development Company (Nigeria) Limited v Otoko (1990): ‘the operator must have foreseen the sabotage and should have taken measures to prevent it.’ (para. 4.41) In this case, the court held that both requirements of foreseeability and proximity were satisfied (para. 4.42-43). Access to the installation and the valves to open the pipe above ground was free and unprotected against saboteurs since 1959 or 1960. SPDC should have known that there is a high risk of sabotage of the installation above ground under these specific conditions (4.43). More and better precautionary measures should have been taken such as securing the wellhead as was done in 2010 only after the case had been brought to the Dutch court (para. 4.43-44). Consequently, the court finds that it is fair, just and reasonable to establish that the SPDC had a specific duty of care vis-à-vis the people surrounding the installation and in particular to the farmers and fishermen like Akpan, a duty that was breached (4.45). If the wellhead had been sufficiently secured, the oil leakages of 2006 en 2007 would not have occurred and hence Akpan would not have sustained damages. Thus, SPDC was held civilly liable on negligence (para. 4.45).

In a separate procedure, the amount of compensation to be paid to Mr. Akpan will be established.

In these five cases, the Nigerian claimants were joined by the NGO Milieudefensie. According to Dutch law, a foundation or association, such as Milieudefensie, can bring claims against Shell on the basis of Art. 3:305a Dutch Civil Code (BW), the representative group action (para. 4.11). According to the court, Milieudefensie could represent the environment interests in Nigeria before the Dutch court on this legal basis. As this provision is part of Dutch civil procedural law, the admissibility question was therefore not decided under Nigerian but under Dutch law. The court held that all the legal requirements to legally represent the Nigerian environmental interests were satisfied (paras. 4.12-13). In particular, the court took into account that the case consists of similar claims of many Nigerians. Thus, collective or mass litigation would be less burdensome, compared to individual litigation (para. 4.12). Yet, Nigerian law is the applicable law regarding the substantive law issues (paras. 4.8-9). Hence, the liability question regarding the NGO should be decided by applying Nigerian tort law. Under Nigerian tort law, the Shell companies did however not breach a duty of care vis-à-vis Milieudefensie. Thus, all claims of Milieudefensie were dismissed (para. 4.35).

These cases against Shell for oil pollution in Nigeria are often referred to as foreign direct liability cases, as multinational corporations are being held liable for environmental or human rights violations in the host States (in this case: Nigeria) before the courts of their home States (in this case: Netherlands, as jurisdiction in which Shell has its headquarters), in which the parent companies are incorporated or have their headquarters. This case is a unique case in the sense that it is the first time a multinational is being held accountable and liable for overseas’ violations before Dutch civil courts. However, as stated, only the Nigerian subsidiary is held liable, not the parent companies. Under Nigerian law and under many common law jurisdictions, the Dutch court held that the parent companies generally have no legal duty to prevent (overseas’) damage to third parties by their subsidiaries (paras. 4.24 and 4.26-4.32). Moreover, there were no facts or circumstances to deviate from this principle (paras. 4.24 and 4.33, referring to the English Chandler v. Cape PLC case).[1] In sum, the Dutch Shell Nigeria case is no doubt a landmark case, though it is no clear victory for the NGO and the Nigerian farmers, who principally aimed to hold the parent companies responsible for the damages. Whether the result would have been different if Dutch law applied remains one of the yet unanswered questions.

Marie-José van der Heijden is an assistant professor at the Molengraaff Institute for Private Law, Utrecht University.

Guest post by Liesbeth Enneking

On January 30th, the The Hague district court rendered a verdict in five civil liability procedures that had been brought by a number of Nigerian farmers and the Dutch NGO Milieudefensie against Royal Dutch Shell (RDS) and its Nigerian subsidiary Shell Petroleum Development Company of Nigeria (SPDC). The reasons for these procedures were four incidents in which oil had spilled from SPDC-operated pipelines in the Nigerian Niger Delta, causing damage to the neighbouring farmers’ lands and fishponds, compromising their livelihoods. The plaintiffs had asked the court, among other things, for a declaratory judgment holding that the defendant companies had acted unlawfully towards them and could be held liable for the resulting damage.

In its ruling, the district court dismissed the plaintiffs’ claims in four of the five procedures. On the basis of the evidence presented to it, the court came to the conclusion that the oil spills were a result of sabotage, and not a result of faulty maintenance as had been argued by the plaintiffs. This, in combination with the fact that under Nigerian law the operator of an oil pipeline is not liable, in principle, for harm resulting from oil spills caused by sabotage, led the court to dismiss the claims against SPDC. It also dismissed the claims against the parent company RDS, finding that under Nigerian tort law a parent company does not in principle have a legal obligation to prevent its subsidiaries from causing harm to third parties except under special circumstances, which the court did not find to exist.

In the fifth procedure, however, which related to two oil spills in 2006 and 2007 from an abandoned wellhead near the village of Ikot Ada Udo, the The Hague district court did grant the plaintiff’s claims, albeit only in part, ordering SPDC to pay compensation for the resulting loss. Although starting from the assumption that the immediate cause of the oil spills had been sabotage, the court in this specific case decided that SPDC was liable for the damage caused to the plaintiff’s crops and fishponds as a result of the oil spills. According to the court, SPDC had been negligent in leaving behind the wellhead without adequately securing it, thus making it simple for saboteurs to unscrew its valves. This led the court to conclude that in failing to take sufficient precautions against the risk of sabotage, SPDC had violated the duty of care it owed to neighbouring farmers.

On this basis, the The Hague district court concluded last Wednesday that SPDC had committed the tort of negligence viz-à-viz one of the farmers involved in the dispute and can be held liable for the damage he has suffered as a result. The exact amount of the compensation that is to be paid will be established in follow-up proceedings for the determination of damages. Notwithstanding the fact that all other claims made by the Nigerian farmers and Milieudefensie in these procedures have been dismissed, including those against the parent company RDS, The Hague district court’s ruling is groundbreaking.

Over the past two decades, Western societies around the world have seen a trend towards transboundary civil liability cases against (the parent companies of) multinational corporations. These so-called ‘foreign direct liability cases’ are typically brought before Western society courts by citizens from developing host countries who have suffered harm as a result of those multinationals’ local activities there. The main reason for pursuing these claims is that the host country plaintiffs are typically unable to address and obtain redress for the harm caused to them in their own countries before their local courts.

The reasons for this include the fact that they may not expect to receive a fair trial by an impartial court locally, that the local legal system may not be up to dealing with such complicated claims, that the local subsidiary may have ceased to exist or that they seek to hold the parent company accountable so as to make a statement and perhaps bring about structural changes in the multinational’s environmental, health & safety, human rights and/or labour policies.

The vast majority of these cases have so far been pursued in the US, where an obscure 1789 federal statute called the Alien Tort Statute (ATS) has since its ‘rediscovery’ in the 1980s provided non-US citizens (‘aliens’) with a legal basis for bringing before US federal courts civil liability claims relating to international human rights violations perpetrated anywhere in the world. A high-profile example are the claims against a large group of multinationals including General Motors, IBM and DaimlerChrysler for their alleged involvement in human rights violations perpetrated by the South African Apartheid regime.

In the spring of 2013, the US Supreme Court is expected to consider a number of fundamental questions relating to the interpretation of the ATS, including its applicability in foreign direct liability cases, in the case of Kiobel v. Shell. This case relates to Shell’s alleged involvement in human rights violations perpetrated by the Nigerian military regime in the 1990s against environmental activists who were protesting against the environmental degradation caused by oil exploration activities in the Nigerian Niger Delta.

Also in other Western societies such as Australia, Canada and the UK courts have been asked to deal with claims by plaintiffs from developing host countries who seek to address and obtain redress for harm caused to people and planet there by multinationals that are incorporated or headquartered in or otherwise connected to the forum country. Due to a lack of an ATS-equivalent, these non-US foreign direct liability claims have typically been pursued on the basis of general principles of tort law and the tort of negligence in particular. Recent examples include the Probo Koala toxic waste dumping incident, which led not only to the criminal prosecution of the international oil trading company Trafigura in the Netherlands but also to the pursuit of civil claims against Trafigura before the London High Court by a large group of Ivorian citizens. A group action brought against Shell by 11,000 Nigerians from the Bodo community in relation to two serious oil-spill incidents in the Niger Delta is currently pending before that same court.

The foreign direct liability claims against Shell in which the The Hague district court has now rendered a verdict are the first to have been brought before a court in the Netherlands, a fact that makes them unique. Already in 2009, the court issued a ruling stating that it had jurisdiction not only over the Netherlands-based parent company but also over the Nigerian subsidiary, due to the close connection between the claims against both entities. Even regardless of their outcome, the fact that the plaintiffs have succeeded in bringing their foreign direct liability claims against RDS and SPDC before the The Hague district court is a novelty that may signal to other plaintiffs in potential future cases that it is possible to bring this type of claim in the Netherlands. This is especially important at a time when controversy surrounding the ATS is increasing, rendering it a less reliable basis for future foreign direct liability claims.

What is also novel is the fact that the The Hague district court has rendered a ruling on the merits of these claims. Of all of the foreign direct liability cases that have been brought in other Western societies so far, only a handful have reached the trial stage; the far majority have either been dismissed at a preliminary (pre-trial) stage or settled out of court. Of course, what makes this case particularly salient is the fact that SPDC, Shell’s Nigerian subsidiary, has been held liable by the court for having failed to exercise proper care towards (one of) the plaintiffs, and has been ordered to pay compensation for the damage suffered. Although this may not seem like such a sweeping result, it is one of the very first instances that a corporate entity within a multinational group, albeit a subsidiary, has been held liable in a foreign direct liability claim.

As regards the issue of parent company liability, which is particularly interesting from a legal perspective as it is a relatively novel and uncharted concept, the court leaves the door ajar. It has explicitly rejected Shell’s contention that the plaintiffs’ claims against the parent company RDS were manifestly prospectless. According to the court, a parent company may under certain circumstances be held liable under Nigerian (and English) tort law for harm caused to third parties by the activities of its subsidiaries, as is made clear by a recent case in the UK in which a parent company was held liable for asbestos-related injuries suffered by an employee of one of its subsidiaries. The court also considers, however, that under the particular circumstances of these claims (including the court’s conclusion that the spills were caused by sabotage), there is no reason to depart from the general principle in Nigerian (and English) tort law that there is no general duty of care to prevent others from suffering harm as a result of the activities of third parties.

All in all, even though the The Hague district court’s ruling in the Shell Nigeria case does not necessarily set a precedent in a strictly legal sense (due to the fact that it is a rendered by a Dutch court on the basis of Nigerian tort law), it is likely to have a broad impact. It represents another step on a path that leads from soft law standards on the social responsibilities of internationally operating business enterprises towards hard law consequences. Moreover, it will provide a signal to legal practitioners, legal academics and especially Western society courts dealing with this type of claims that the trend towards these foreign direct liability cases is a real one. After all, it shows that both subsidiaries and parent companies of Western society-based multinationals may be held accountable before courts in their home countries, not only in principle but also in practice. This message is likely to strike a note not only among lawyers, but also among multinationals, NGOs, policymakers and the general public in both developing host countries and Western society home countries.

Liesbeth Enneking is a postdoctoral research fellow at UCALL, Utrecht University’s Centre for Accountability and Liability Law. In May 2012, she defended her PhD thesis on foreign direct liability and the role of tort law in promoting international corporate social responsibility and accountability. The text of this blog will be incorporated into an article on this issue; please do not quote without prior permission from the author.

Job description

Developing, conducting, and supervising high quality academic research on International Relations;

Teaching general and specialist courses in Political Science, more in particular International Relations at both undergraduate and post-graduate levels, and involvement in post-graduate supervision;

(Participation in) the acquisition of external research funding;

Contributing to the research programme of the Amsterdam Institute for Social Science Research and to the development of the field through scholarly publications and participation in national and international research networks and educational initiatives.
Requirements

A completed doctoral thesis in Political Science or other relevant field in the social sciences;

An ongoing programme of research and publications, focused on internationally ranked, ‘peer reviewed’ journals and/or books published by internationally recognized academic presses;

Broad general knowledge in International Relations;

Mastery of appropriate social science research methods (qualitative and/or quantitative);

Ability to provide excellent and inspiring teaching at both undergraduate and postgraduate levels, in English as well as (eventually) Dutch;

Strong passive and adequate active knowledge of Dutch, or the ability and willingness to acquire such within a period of three years;

The basic qualification at Dutch universities in higher education (Basiskwalificatie Onderwijs; BKO) certificate, or a willingness to acquire such.

Conditions of employment

Depending on experience, pay will be based on assistant professor scale 1 or 2 (i.e. a gross monthly salary ranging from a minimum of €3195 to a maximum of € 4970 for full-time work, based on the January 2009 salary scale). Holiday pay is 8% of the gross annual salary, while the year-end bonus is 8.3% of the gross annual salary. According to our employment policies, you will be offered a temporary contract for three years, with conditions for tenured position thereafter agreed upon appointment.

Organisation

Faculty of Social and Behavioural Sciences

The Faculty of Social and Behavioural Sciences (FMG) is the largest educational and research institution in the social sciences in the Netherlands. The Faculty serves around 9,000 students in numerous Bachelor’s and Master’s programs in Political Science, Sociology, Anthropology, Communication Science, Psychology, Social Geography, Planning and International Development Studies, and Educational Sciences. The academic staff is employed in education as well as research. There are over 1,200 employees at the Faculty, which resides in a number of buildings in the centre of Amsterdam.

Additional information

Additional information about the vacancy may be obtained from:

Prof. Dr. Brian Burgoon
Website PETGOV
More information about employer University of Amsterdam (UvA) on AcademicTransfer.

Direct link to this job opening: www.academictransfer.com/16137

Guest post by Dr. Sinan Çankaya 

Police officers cannot tackle all crime, enforce all laws and stop all people. They have to make choices. During proactive policing so-called street cops make use of generalizations. This practice is ineffective and has a stigmatizing impact on ‘communities’.

Traditionally, the police organization functions as ‘fire fighters’: they react as quickly as possible to a fire, extinguish it and then wait for the next call. This type of officer is unfortunately always late. Since the eighties there is a development whereby the officer who is always late, wants to be early – in fact, the police officer is preferably at the occasion before the fire even ignites. The proactive police organization waits no longer for the reports of citizens, but attempts to prevent, disrupt and deter crime from happening.

The street cop as a “Where’s-Waldo–seeker”

During proactive policing, officers use generalized images of potential suspects and work with a selection profile. Citizens who tend to the profile, are more inclined to be stopped and checked. I define this decision-making process with the notion where’s-Waldo-seekers. In my childhood I ‘read’ almost the entire series of Where’s Waldo? In this comic book for children, which has an A3-format, the reader is supposed to find Waldo. The drawings represent a variation of realistic scenes, but also imaginative worlds. However, the ‘description’ of Waldo remains unchanged: a white man with glasses and a cane, dark brown hair, blue jeans, brown shoes and a red and white striped sweater.

My argument is that the officer also searches for Waldo, who apparently looks a certain way. Here, Waldo symbolizes the archetypal and decontextualized images of a ‘criminal’. Consciously and unconsciously, street cops define civilians not only as suspicious because they have committed or are committing a criminal offense. Partly they judge their appearance – such as skin colour, age, gender, clothing and jewellery – in a positive or negative way. The judgments about the personal facades of civilians are not neutral with respect to class, ethnicity, age and gender. Some facades work to the disadvantage of civilians, while others form privileges. Yet the appearance is not necessarily the decisive factor in the daily decision making processes of police officers. For the same reason there is not just one Waldo, but there are several variables that constitute numerous Waldo’s.

Ethno-racial profiling

This selection process is partly consistent with what is described as racial and ethnic profiling. This method is problematic for several reasons. The first false assumption is that so-called ‘communities’ can be identified on the basis of biological, thus racial, characteristics. This is highly unworkable, because the physiological variations within ethnic categories are too large. Secondly, the reasoning jumps from individual offenders to ‘groups’. An overrepresentation of for example Moroccan-Dutch young men in specific offenses does not justify the association of the total population with that offense. Thirdly, the present practice can undermine the trust of ‘groups’ of citizens in the police organization. Fourthly, criminals who do not tend to the ‘picture’ of police officers can be overlooked. Bad policing in my opinion.

It is remarkable that the deleterious effects of the current practice are unconvincing in public opinion. The fact that innocent civilians are subjected to proactive checks is perceived as collateral damage. The most persistent objection is the over-representation of ethnic minorities in the visible forms of crime. In the same category, officers say: “What should we do? ID check grandmas?” But the current practice has little to do with robust intelligence-led policing. Instead of focusing on individual, specific and concrete delinquents and ‘suspicious behaviour’, it leads to (self)management at the level of risky profiles. In other words: social categorization, stereotyping, status and prestige are inextricably linked to proactive policing.

 From the officer as a ‘crime fighter’, to the officer as an ‘information broker’

Moreover, the proactive stops do not result in a significant number of arrests. The reason is that the stops rely on the intuitive and vague suspicions of the police officer. A ‘gut feeling’ as they will say. As a result, street cops usually have insufficient legal grounds for an arrest. The relative low numbers of arrests are in sharp contrast to how street officers justify selective attention to certain ethnic categories.

So what is it that cops do? The result of the proactive control is generally (a) a record in a police system and (b) the assumption that crime is prevented in the preliminary phase of its execution. When we look at the first ‘hit’, it becomes clear that Intelligence-led Policing (Informatiegestuurde Politie), an abstract policy concept of management cops, has seeped to the level of street cops. However, the formal and informal norm of “the more intelligence, the better” is at odds with the Police Data Act (Wet op de Politiegegevens, WPG). For much of the records the basis for processing data is general and unclear, and seems redundant and irrelevant. Besides, it is unclear how many records are actually used in concrete investigations.

This practice has a curious side effect. The choices of street cops in the present affect the focus areas in the future. Intelligence is also proactively acquired, created, edited and added. In addition, the supplemented intelligence focuses on the already defined ‘target groups’ and perpetuates these categories. The everyday decisions of street cops not only relate to stops and checks, but also to who is and is not recorded in police systems.

Preventive Policing = black box

When looking at the second ‘hit’: the effectiveness of preventive interventions are difficult to be determined. There is no actual crime in the present, but an imagined act in the future – that does not necessarily need to occur, even without the intervention of the police officer (see also Schinkel 2009). Preventive policing is basically a virtual business. Police officers avoid a hypothetical and a future scenario from taking place. At the same time, it is possible that street cops paradoxically prevent hypothetical criminal acts from happening.

Inclusive and exclusive function of the police organization

The labels and categorizations of street cops are not about hostilities towards certain social or ethnic groups. In my interpretation, ethnicity and social class are the criteria by which a given social order manifests itself. What matters are the underlying power relations in a society. All together, the enforcement of public order is accompanied by the consolidation of the boundaries between positively valued ‘normal’ groups and the groups ‘who do not belong’ to society.

Sinan Çankaya is a cultural anthropologist and researches the police organization and inclusion – and exclusion processes. This article is a snapshot of his latest publication (in Dutch) “The control of Martians and other scum: the decision making process during proactive policing”. Anyone interested can mail to info@boomlemma.nl

Literature:

Schinkel, W. (2009) ‘De nieuwe preventie: Actuariële archiefsystemen en de nieuwe technologie van de veiligheid’ Krisis (2): 1-21