Uitspraak Nº C-09-540972-HA ZA 17-1048. Rechtbank Den Haag, 2019-07-01

Datum uitspraak: 1 juli 2019
Uitgevende instantie::Rechtbank Den Haag
 
GRATIS UITTREKSEL

judgment

THE HAGUE DISTRICT COURT

Commerce Team

case number / cause list number:

Judgment of 1 May 2019

in the case of

  1. [claimant 1] of [residence 1] , [country 1] ,

  2. [claimant 2] of [residence 2] , [country 2] ,

  3. [claimant 3] of [residence 3] , [country 3] ,

  4. [claimant 4] of [residence 4] , [country 3] , claimants,

counsel: Ch. Samkalden of Amsterdam,

versus

  1. ROYAL DUTCH SHELL PLC of London, United Kingdom, with its registered office in The Hague,

  2. SHELL PETROLEUM N.V. of The Hague,

  3. THE SHELL TRANSPORT AND TRADING COMPANY LIMITED of London,

  4. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD of Port Harcourt, Rivers State, Federal Republic of Nigeria,

defendants,

counsel: W.I. Wisman of The Hague.

Claimants are hereinafter jointly referred to as ‘claimants’ and individually as [claimant 1] , [claimant 2] , [claimant 3] and [claimant 4] , respectively. Defendants are hereinafter jointly referred to as ‘defendants’ and individually as RDS, SPNV, STTC and SPDC, respectively.

1. The proceedings

1.1. The course of the proceedings is evidenced by the following:

- the summons of 28 June 2017, with Exhibits 1 through to 269;

- the statement of defence, with Exhibits 1 through to 204;

- the judgment in which appearance before a three-judge panel was fixed;

- the statement of claim in the procedural issue regarding exhibits, with Exhibits 1 through to 3;

- the document containing Exhibits (205 and 206) of the defendants;

- the statement of defence in the procedural issue regarding exhibits, with one Exhibit (207);

- the document containing Exhibits (270 through to 291, and an addendum to Exhibit 34) of Claimants;

- the report of the parties’ appearance before the three-judge panel of 12 February 2019.

1.2. The report was drawn up in the parties’ absence with their consent. The parties were given the opportunity to submit factual comments within two weeks from dispatch of the report. Claimants took advantage of this opportunity in their letter dated 14 March 2019, and the defendants in their letter dated 13 March 2019. These letters form part of the prosecution file and the judgment is passed with due regard for these letters, in so far as they are factual corrections.

2. The facts

2.1. Claimants are the widows of four of a group of nine men, also known as the Ogoni 9. They belong to the Ogoni, a people native to Nigeria’s Ogoniland in Rivers State province. The Ogoni 9 were hanged in Nigeria on 10 November 1995 following a death sentence for involvement in the death of four traditional Ogoni leaders passed by a special tribunal.

2.1.1 [claimant 1] is the widow of Dr [A] ( [A] ), who in January 1994 had been appointed Honourable Commissioner of the Ministry of Commerce, Industry and Tourism of Rivers State province and who in that capacity working as the link between the Ogoni and the Nigerian authorities.

2.1.2 [claimant 2] is the widow of [B] , who from their establishment had been a key member of MOSOP (see below under 2.13) and NYCOP (see also under 2.13).

2.1.3 [claimant 3] is the widow of [C] , who in 1993 had joined NYCOP.

2.1.4 [claimant 4] is the widow of [D] , who in 1993 had joined MOSOP.

2.2. Shell Petroleum N.V. (SPNV) is the successor by universal title of

N.V. Koninklijke Nederlandsche Petroleum Maatschappij (Royal Dutch). Royal Dutch and the legal entity under English law, The Shell Transport and Trading Company Limited (STTC), were the parent companies of the Shell Group (Group Parent Companies) in the period relevant to these proceedings, 1990-1995 (hereinafter: “the relevant period” or “1990-1995”). Royal Dutch and STTC – hereinafter also jointly referred to as ‘the parent companies’ – cooperated on the basis of an agreement concluded in 1907.

2.3. Royal Dutch and STTC held the shares in the holding companies of the Shell Group (the Group Holding Companies), to which SPNV and the legal entity under English law, Shell Petroleum Company Ltd (SPCo), also belonged. The Group Holding Companies held the shares of the operating companies in the Shell Group, including Shell Petroleum Development Company of Nigeria Ltd (SPDC), a legal entity under Nigerian law.

2.4. SPDC is the continuation of Shell D’Arcy, which in 1938 received a permit in Nigeria to explore for oil. In April 1956, the name of this company was changed to Shell-BP Petroleum Development Company of Nigeria Limited. In December 1979 the name of this company was changed again, to its current name SPDC. In the relevant period, SPCo held 99.9% of the shares in SPDC, while SPNV in this period held 0.1% of the shares in SPDC.

2.5. The legal entity under English law, Royal Dutch Shell plc (RDS), has been the sole parent company of the Shell Group since a restructuring in 2005, which entailed a merger in which Royal Dutch was merged with SPNV. RDS was placed at the top of the Shell Group and did not take over any obligations from the other companies in the Shell Group.

2.6. Besides the Group Parent Companies, the Group Holding Companies and the operating companies, Service Companies also belonged to the Shell Group in the relevant period, including Shell Internationale Petroleum Maatschappij B.V. (SIPM) and the legal entity under English law, Shell International Petroleum Company Limited (SIPC). These Service Companies provided the Shell Group with advice and expertise, for instance in the area of engineering, geophysics, geology, safety and public affairs.

2.7. A consultative body was established at the organizational level between the Group Parent Companies, known as the “Conference”. The members of the Supervisory Board, and of the Board of Directors of Royal Dutch and STTC convened in the Conference. The Shell Groups also had a so-called Committee of Managing Directors (the CMD). This was a joint, informal committee established by the Management Boards of the Group Holding Companies. Every member of the CMD was either a member of the Board of Directors of Royal Dutch or a member of the Board of Directors of STTC as well as a member of the Management Boards of both Group Holding Companies.

2.8. SPDC was currently still is operator in a Nigerian joint venture without legal personality established in April 1973, which is involved in detecting, producing and transporting petroleum and natural gas. Relationships in the joint venture have changed over time. In the relevant period, SPDC had a stake of 30%. The legal entity under Nigerian law, Nigerian National Petroleum Company (NNPC), had a stake of 55%. Elf and Agip has stakes of 10% and 5%, respectively. In the relevant period, the duties in the joint venture were divided as follows: the operator prepared the work programmes and budgets and the partners in the joint venture provided the capital for the activities of the operator on cash calls. The operator was also responsible for all aspects of oil extraction and oil exploitation of the joint venture. The joint venture had an Operating Committee (OPCOM), consisting of six representatives of NNPC, four representatives of SPDC, one representative of Elf and one representative of Agip. OPCOM was responsible for general supervision, leadership and management of the joint venture, including approving, adjusting or rejecting intended decisions on projects and budgets.

2.9. The joint venture extracted oil in Ogoniland, among other locations. There, the joint venture exploited 12 oil fields with 116 wells, five flow stations, various manifolds and pipelines at least until 1993.

2.10. SPDC employed security personnel in 1990-1995, who were not allowed to carry firearms. The staff and possessions of the joint venture were also protected by a regular police force (supernumerary police SPY, in popular parlance also referred to as Shell police) and dog handlers. These police officers, who were employed by the Nigeria Police Force, often worked for particular companies long term. The companies paid a fee to the Nigerian government for their services under Article 18, paragraph 4 of the Nigerian Police Act. The companies also paid the salaries of these police officers.

2.11. In 1985 Major General [Major General] usurped power in Nigeria after staging a coup. He stepped down in August 1993. After an interim government led by [X] , General [the General] ( [the General] ) came to power in November 1993 following a coup. He was the head of state of Nigeria until his death in 1998.

2.12. In October 1990 residents of Umuechem, a village just outside Ogoniland, protested against the poor power and water facilities in Umuechem and the lack of fair compensation for the expropriation and exploitation of their land. Following a request of the divisional manager east of SPDC, [divisional manager east] ( [divisional manager east] ), on 29 October 1990 to the Nigerian Commissioner of Police to provide “security protection (preferably by Mobile Police Force)”, the Mobile Police Force (MOPOL) cracked down on the protestors in Umuechem on 31 October 1990. Many people were killed or injured in the process and 495 houses were set on fire.

2.13. In 1990 the Movement for the Survival of the Ogoni People (MOSOP) was established by [E] ( [E] ). MOSOP protested against the oil extraction in Ogoniland. Its programme was laid down in the Ogoni Bill of Rights drafted in 1991. MOSOP focused on more political autonomy for Ogoniland, fair compensation for the use of Ogoniland and the raw materials in Ogoniland as well as the repair of the damage caused by oil exploitation. Later, in 1993, organisations were established that operated under the umbrella of MOSOP. One of these organisations was the youth movement National Youth Council of Ogoni People (NYCOP).

2.14. On 20 and 21 July 1992 Ogoni demonstrated at the Bonny Terminal, a...

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