3.1 Shell (Nigeria), ECLI: NL: GHDHA: 2015:3586 (December 2015)
In this case, the department of environmental affairs in Nigeria sued the oil company on behalf of a local Nigerian community. The case concerned environmental damage caused by a leak from an oil tank. The plaintiff sued both the parent companies, one of which (Shell Petroleum) was based in the Netherlands, as well as the subsidiary, SPDC, based in Nigeria as operator of the pipeline, in a Dutch court.
With regard to the claims against the parent companies, the court notes first focused on the claim against Shell Petroleum, and noted that the company has a registered office in The Netherlands. For this reason there is jurisdiction under art 2(1) of the (former) Brussels I Regulation.(1) Now article 4(1) As regards RDS and Shell T&T, the court commentsedthat there were no registered offices in the Netherlands, but found that the court had jurisdiction according to art 2(1) in conjunction with art. 60(1) and according to art 6(1) and /or art. 24 in the Brussels I Regulation. These issues were not in dispute in the case(2) Para 3.1. in the ruling.
With regard to the claim against the subsidiary (SPDC), the court noted that according to the Dutch CCP (Code of Civil Procedure) art 7(1), there would be jurisdiction for a claim against the subsidiary as a related claim, “provided the claims against the various defendants are connected to the extent that reasons of efficiency justify a joint hearing”.
The subsidiary argued that in the end the test should be whether the claims against the parent companies could possibly be awarded. In this regard, the court noted that: “If it is clear in advance that claims against RDS (the so called anchor claims) are obviously bound to fail and for that reason cannot possibly be allowed, [author’s italics] it is hard to imagine that reasons of efficiency nonetheless justify a joint hearing”. In this way, the court by way of implication accepted that the likelihood of the success of the claim against the parent company is indirectly also relevant when determining whether the court has jurisdiction to hear the claim against the subsidiary. However, after having made rather brief references to the Chandler case and related cases, the court found that the possibility could not be ruled out in advance that a parent company could become liable for the acts of a subsidiary.
The court therefore moved on to consider whether there was a sufficient connection between the claim raised against the parent company and the claim raised against the subsidiary. In making this assessment, the court found that the following criteria were relevant: i) the acts and omissions of SPDC as a group company played an important role in the assessment of the possible liability of RDS as top holding, ii) the claims were identical, iii) the facts in the two cases were identical, iv) the questions of facts primarily concerned the question what caused the spill, v) further investigations with regard to the facts were required, vi) these investigations should be carried out by a single court to avoid divergent findings.
Based on these criteria, the court reached the conclusion that the claims were connected to the extent that reasons of efficiency justified a joint hearing. (3) The court added that the same result would arise according to the Brussels Regulation regime, ie. art 6(1) Brussels I Regulation (now art 8(1) EC Regulation no. 1215/202), according to which the relevant criteria is whether : “The claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments”. More specifically, it is relevant whether there is the same situation of facts and law and that the suit against the parent company is not an attempt to circumvent the jurisdictional rules. The court added that: “The above does not change because the legal bases of the claims against SPDC and RDS differ, or at least do not coincide altogether”. It also added that it was not unforeseeable for SPDC that they might get sued. On this basis it was concluded that there was jurisdiction for both claims in the Dutch court.