Esther Kiobel v Shell. Dutch Court takes strict evidentiary approach in its rejection of Shell Nigeria involvement in bribery.

The Dutch court of first instance held at the end of March (English version of the judgment is here) on the merits of Esther Kiobel’s case against Shell, proceedings which she unsuccessfully tried to bring in the US under the ATS and then pursued in The Netherlands as I reported at the time.

In my earlier post I pointed out that the Dutch court narrowly construed the case that could be pursued in the Netherlands: Only limited claims, of the Nigerian daughter’s involvement in the bribing of witnesses, were allowed to continue. Those claims have now been dismissed.

The judgment is fairly succinct, many points having discussed at length in the interim jurisdictional and case-management decision. Witnesses’ recent interviews (by the Dutch courts, but without cross-examination. Not because it was not offered but because counsel did not feel the need to proceed with it) were cross-checked against earlier statements which had been entered as evidence in the US proceedings. The court [2.26] holds that

the alleged involvement of the SPDC in witness bribery is not proven with the statements of the witnesses produced by the claimants. This is also true when viewing these witness statements in conjunction.

As I pointed out here in reply to Lucas Roorda, if I were claimant’s counsel looking for appeal grounds, I would study the Dutch court’s application of Nigerian common law evidentiary standards for upholding civil liability.

The court’s approach to the witness statements is that they cannot sustain SPDC bribery involvement. The evidence of SPDC staff presence at relevant meetings (often in police stations) is, when not held to be factually (albeit on minor points) contradicted by earlier statements (going back 20 years for some of them), found to be circumstantial only. Witnesses point to people that were referred and /or pointed to when Shell-related employment (as a reward) was discussed, briefcases held by people with the outward, corporate appearance of Shell staff, people driving off in cars with corporate stickers formerly used by Shell. None of this satisfied the court’s evidentiary requirements without however proper discussion of what, under Nigerian law, that standard would require.

Geert.

 

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