9.2.1 Civil law litigation

After the execution of Saro-Wiwa and the others, human rights groups worldwide blamed General Abacha and Shell. The reasons for blaming Shell were multiple. The allegations were, in general, that Shell had severely polluted the environment of the Niger Delta and had depleted - without permission of the Ogoni representatives - their mineral resources without redistributing the proceeds to the Ogoni. The protestations of Saro-Wiwa had led to his death. Shell was also said to have co-operated with the regime of General Abacha, not only by concluding oil concessions and participating in the joint venture SPDC, but also by requiring the Government to protect its oil installations, knowing that the available special security forces were 'licensed to kill'. Shell allegedly contributed financially and by furnishing equipments and arms.

Following the events, family members of Saro-Wiwa and the other executed Ogoni were afraid of being targeted as the next victim of General Abacha, and left the country for a safe harbour abroad. With support from NGOs, they filed several legal claims against Shell and the Government.

For various reasons, it appears generally difficult for victims to obtain justice in civil court proceedings against multinational companies. In the particular case of the families of Saro-Wiwa and the others, the issue of security was the primary obstacle to the initiation of legal action in Nigeria. Since SPDC is a Nigerian joint venture company, Nigeria would be the logical place to commence proceedings. In principal, victims cannot file a claim against a local company before a court in another country.1 Secondly, successfully asserting a claim against Shell, the ultimate parent company of SPDC - which consisted of a dual-company structure, registered both in the Netherlands and in the UK - is not an easy undertaking.2 The parent company would basically assert that it is only the (indirect) shareholder of SPDC and has no influence upon the wrong-doings of the local SPDC management. Parent companies establish local legal entities for protection against commercial risks and other liabilities incurred by their subsidiary ventures. This is especially true for operations abroad in risky regions of the world, such as Nigeria. To hold a shareholder liable for the behaviour of a subsidiary means that the claimant has to 'pierce the corporate veil'.3 To be successful, several facts need to be established, principally concerning the involvement and interference of the parent company in the policies and activities of its subsidiary company.4

Despite the corporate veil, there are interesting examples of multinationals being held accountable for injuries in developing countries. In the UK, plaintiffs from South Africa and Namibia employed by local companies have been allowed to submit their claims for negligence against the ultimate UK parent companies. They held the defendant companies liable for breaches of a duty of care in tort, instead of alleging violations of human rights. In particular, these cases concerned miners in South Africa who claimed damages for personal injuries allegedly sustained as the result of exposure to asbestos (The Cape Plc cases5); a cancer victim who worked in a uranium mine in Namibia (Connelly v. R.T.Z. Corporation Plc6); and workers who suffered from lethal mercury poisoning in South African mines (Thor cases7). Meeran, who represented some of the defendants in these cases, emphasised that the plaintiffs had namely no access to justice in their home country.8 In the UK, they could apply for legal aid. He advocated that multinational companies should not be able anymore - in this globalising world - to get away with a practice whereby their subsidiary companies located in developing countries apply lower health and safety standards than their factories elsewhere ("double standards"). In his view, the corporate veil should not limit the legal responsibility of the parent company. Since most of the multinational companies today work with operational divisions, which usually do not coincide with the legal 'corporate chart barriers', it would result in an unfair situation to hide legal responsibility for negligent behaviour towards their employees by legal group charts'. As the House of Lords stated with respect to the 12 to 35 times higher asbestos levels in the mines in South Africa in comparison to the UK level

(Lubbe v. CapePlc.): "[...] the corporation ought to have taken into account the scientific knowledge that was available to it, as it was situated in England".

These judgements are interesting considering that most of them were favourable to the plaintiffs. Some of the cases were settled out of court by paying compensation to the victims. It cannot not be a coincidence that a group action by over 20,000 African victims of the Ivory Coast scandal in 2006, regarding the illegal dumping of 400 tonnes of toxic waste, has been filed before the UK High Court against Trafigura, a UK-based multinational company (see also section 11.2.2).9

Another interesting development was the announcement of a possible lawsuit in May 2008 against Shell by Nigerian farmers and fishermen in the Niger Delta, supported by the NGOs Friends of the Earth Netherlands/Nigeria. Based on their rights to food and to a clean and healthy environment, they intend to claim damages caused by oil spills in their villages as a result of the exploitation of Shell's subsidiaries in the Niger Delta.10

In addition to the corporate veil obstacles in parent companies jurisdictions, civil litigation in the UK and the US face the additional hurdle of the forum non conveniens doctrine. This doctrine intends to protect the defendant who can challenge the forum chosen by the plaintiff if there is another more appropriate forum and certain other criteria are met.11 A parent company will typically raise this defence stating that the complaint or the facts on which the case is based have a closer link with another jurisdiction and that it would be more appropriate to litigate the case there. In other EU countries, article 2 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters12precludes the application of this doctrine where the defendant is based in the EU.13

Human rights violations have also been brought up in civil law cases in the US. Plaintiffs submitted claims against parent companies that were registered in other countries, making use of a special form of legal extra-territoriality: the over 200 years old Alien Tort Claim Act 28 U.S.C. §1350 (ATCA). This statute enables US courts to exercise extra-territorial jurisdiction over specified claims, including particular categories of human rights violations. The ATCA was originally enacted in 1189 to provide a remedy for foreigners (aliens) who were mistreated on American soil. The current text states that US district courts shall have jurisdiction over any civil action by an alien (an individual, his or her legal representative or a person who may be a claimant in an action for wrongful death) for a tort only, committed in violation of the law of nations or a treaty of the US. The alien does not need to be physically present in the US nor does the tort need to occur in the US. However, the defendant must be properly served notice in order for personal jurisdiction to arise. In the past 30 years, the ATCA has increasingly been used by non-US-nationals to bring up severe human rights violations, which took place outside the US, as a tort claim before a US court, even against non-US defendant companies.14