Academic journal article McGill Journal of Sustainable Development Law

Tort Litigation in Respect of Overseas Violations of Environmental Law Committed by Corporations: Lessons from the Akpan V. Shell Litigation in the Netherlands

Academic journal article McGill Journal of Sustainable Development Law

Tort Litigation in Respect of Overseas Violations of Environmental Law Committed by Corporations: Lessons from the Akpan V. Shell Litigation in the Netherlands

Article excerpt

1. INTRODUCTION  2. DOMESTIC TORT LITIGATION REGARDING OVERSEAS CORPORATE VIOLATIONS OF HUMAN RIGHTS AND ENVIRONMENTAL LAW: COMPARING AMERICAN WITH EUROPEAN APPROACHES  3. THE FACTS OF AKPAN VSHELL  4. THE COURT'S CONSIDERATIONS REGARDING JURISDICTION  5. MERITS OF THE CASE  6. HUMAN RIGHTS  7. CONCLUSION 

On 17 April 2013, the US Supreme Court rendered its keenly awaited judgment in Kiobel v Royal Dutch Petroleum. (1) The court relied on the presumption against extraterritoriality to bar relief for violations of the law of nations occurring outside the United States under the Alien Tort Statute ("ATS"). (2) Victims of overseas human rights violations and human rights activists had pinned their hopes for recourse (particularly against corporations) to this statute.

The Kiobel litigation has somewhat eclipsed other litigation avenues for victims of human rights or environmental law abuses, avenues which, after the Kiobel judgment, might prove more viable. In particular, tort litigation on the basis of domestic law and private international law, rather than on the basis of public international law (the law of nations, which was at issue in Kiobel), may hold hopes for victims. The aim of this note is not to exhaustively examine the promise of such litigation. Rather, the note discusses a specific judgment rendered by the District Court of The Hague (the Netherlands) on 30 January 2013 in Akpan v Shell. (3) This judgment illustrates the promises and the challenges of public interest tort litigation in domestic courts, and the defendants in this case belong to the same corporate group as the defendants in Kiobel--although the cases were unrelated. Kiobel concerned violations of physical integrity rights of Kiobel and others by the Nigerian Government, allegedly aided and abetted by the Anglo-Dutch corporation, (4) Shell. In contrast, Akpan 2013 was a tort case brought by a Nigerian farmer, Akpan, and the Dutch NGO Milieudefensie (Environmental Defense) against Shell and its Nigerian subsidiary. (5) The plaintiffs in Akpan 2013 alleged that both corporations had failed to prevent oil spills from a wellhead in Nigeria, causing environmental damage to Akpan's land. (6) The court eventually held Shell's Nigerian subsidiary responsible towards Akpan for violating its duty of care to prevent oil spills. (7)

Akpan 2013 may constitute an important precedent for future transnational tort cases against multinational corporations for overseas environmental harm. It demonstrates that victims of foreign torts can overcome a number of impediments that had previously hampered their chances of successful extraterritorial tort litigation, especially in Europe. This case addresses: (1) the vexing question of whether a forum state's courts have jurisdiction over violations committed abroad; (2) the question of which substantive law would apply; and (3) the practical issue of generating resources to bring a claim. At the same time, Akpan 2013 shows that challenges remain, notably the challenge of holding domestically incorporated parent corporations liable for the wrongful acts and omissions of their foreign subsidiaries ("piercing the corporate veil").

The structure of this note is as follows. The introductory section (Section 1) gives a brief overview of American and European approaches to domestic tort litigation in cases concerning corporate violations of human rights and environmental law. In the following sections, the facts of Akpan 2013 are set out (Section 2), the grounds on which the Dutch court had jurisdiction over the case are discussed (Section 3), and the merits are analyzed, in particular the application of the Nigerian common law of negligence to the case (Section 4). The note ends with an exploration of the role of human rights in transnational tort litigation, a role rejected by the Dutch court, at least in respect of negligence claims (Section 5), and a conclusion (Section 6).

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