All of us have been so fixated on the DoJ White Paper and the drone controversy at home that we overlooked an important and eponymous development for this blog: lawfare in the Hague.
On January 30, a court in the Hague dismissed most of the environmental claims brought by Nigerian farmers and a Dutch environmental group against Royal Dutch Shell and one of its Nigerian subsidiaries for oil spills in Nigeria. But the Dutch court, applying Nigerian substantive law, upheld a claim by the Nigerians against the Nigerian subsidiary for failing to prevent some of the spills. (Remarkably, these spills occurred when someone used a monkey wrench to open the overground valves of the Nigerian subsidiary’s oil pipelines; the court held that the subsidiary could have prevented this from happening.)
The decision — which could have implications for multinational corporations — is unusual for allowing foreign plaintiffs to sue a foreign corporation for actions in a foreign country. The jurisdictional basis for the Dutch court’s decision is not entirely clear. It was not universal jurisdiction. Rather, it appears that the court concluded that the activities of Royal Dutch Shell and its Nigerian subsidiary were so intertwined that the court had jurisdiction over both entities, even though the court later ultimately concluded that Royal Dutch Shell was not itself liable under Nigerian law for the tortious acts of its subsidiary.