Tag: Netherlands

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Quite the song and dance. Dutch TikTok class action passes jurisdictional hurdle at first instance, cutting many a((n) appealable) corner in the process.

Update 17 January 2024 see ECLI:NL:RBAMS:2023:6694 for findings ia on applicable law held under Rome I and Rome II.

I reported earlier on the ongoing collective claim against TikTok here. Thank you Xandra Kramer and Eduardo Silva de Freitas for signalling and discussing the first instance jurisdictional finding. I note already that the Court [5.28] has refused interim permission to appeal on the jurisdictional finding (as in i.a. the applicable law issue in Airbus). [5.22] it also refused a preliminary reference to the CJEU even though my concise discussion below already shows that more is at play here than the court has made out. TikTok will now first have to argue the case on the merits to then (presumably) appealing both substance and jurisdictional finding.

As I flagged earlier and as Xandra and Eduardo discuss, the issue here is firstly the relationship between GDPR and Brussels Ia at the jurisdictional level: I discuss that in this paper. Against TikTok Ireland, jurisdiction is established on the basis of A80 GDPR, with no further discussion of A79 (even if A80 partially refers to A79 for the action it establishes).

In my view the court quite carelessly muddles the various concepts used in A79-80, all too easily dismisses ia CJEU Schrems, does not clearly distinguish between assignment, subrogation, mandate etc., and certainly does not correctly delineate the authority which the collective organisations might have under the GDPR: for it is not at all clear that this authority, beyond injunctive relief,  includes a (collective) claim for damages.

[5.13] the court already announces that it may not in fact have jurisdiction for all individuals who are no longer habitually resident in The Netherlands, a concession which in my view in fact goes towards undermining its own reasoning.

[5.14] ff the court then reviews A4 and 7(2) BIa, as a supplementary jurisdictional ground for the GDPR related claims and as a stand-alone ground for the non-GDPR related claims. The court’s decision to apply CJEU Wikingerhof as leading to forum delicti and not forum contractus is in my view optimistic, and surely if A7(2) is in play then the CJEU’s authority ia in Schrems is, too. Yet the court [5.17] quite happily assimilates the harmed individuals’ COMI etc. with the collective organisation.

[5.19-20] the court summarily accepts jurisdiction against the other (non-EU) TikTok entities on the basis of Dutch residual rules for related cases.

Jurisdictional issues will most definitely return upon eventual appeal.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.5.

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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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No horsing around. Den Bosch court of appeal on the non-recognition of US punitive damages.

Many thanks Haco van der Houven van Oordt for flagging an (anonymised) judgment by the Den Bosch Court of Appeal, in which it refused to recognise the punitive damages element of a US (Tennessee) judgment. Damages had been awarded after a horse trainer based in The Netherlands, who had been tasked to look after and train the horse of the US based claimant, had subsequently been tasked to sell the horse and in doing so hid part of the sale price from the owner. Half a million dollar was awarded, of which exactly half in punitive damages.

The judge follows the Gazprom criteria for recognition and enforcement in The Netherlands and only objected to the punitive damages element. A bid by claimants (heirs of the meanwhile deceased owner) to argue recoverability of a chunk of the punitive damages slice, arguing that it was compensation for lawyers’ fees in the US proceedings, failed: the Dutch held that costs compensation are not ordinarily part of the punitive element of the damages and that transcripts of the US judgment and proceedings certainly did not reveal any trace of that argument.

Not an extraordinary judgment. But an instructional one.

Geert.

 

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Suing TikTok: on GDPR and ordinary jurisdiction, as well as applicable law in the Dutch collective claim.

A short note on the claim form for the collective claim by a group of parents based in The Netherlands against TikTok Technology Limited, domiciled at Dublin, Ireland.  It engages Article 79 GDPR, as well as the consumer section of Brussels Ia. At the applicable law level, it suggests application of Article 6 Rome I (consumer contracts; a logical counterpart of the jurisdictional analysis) and, in subsidiary fashion, Article 4 Rome II, each to suggest application of Dutch law.

I wrote on Article 79 here, and the problems which I signalled have in the meantime surfaced in case-law, as I signalled ia here.  Current case prima facie may not be entirely straightforward under GDPR, BIa and Rome I – one imagines a possible TikTok’s defence to go ia towards the meaning of ‘establishment’.

Geert.

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Suing ‘Norsk Hydro’ in The Netherlands. No engagement it seems of Article 33-34 BIa ‘forum non conveniens light’.

A quick note on the suit in The Netherlands against “Norsk Hydro” of Norway, for alleged pollution caused by aluminium production in Brasil. No court decisions or orders are available as yet hence I write simply to log the case. I have put Norsk Hydro in inverted commas for the suit really is against Norsk Hydro subsidiaries incorporated in The Netherlands, who are said to control the Brazilian entities. The jurisdictional basis therefore is A4 BIa. As far as the reporting on the case  indicates, there seems little likelihood of A33-34 BIa’s forum non conveniens light making an appearance seeing as no Brazilian proceedings are reported to be underway which could sink the Dutch proceedings like the High Court did in Municipio de Mariana. That is not to say of course that the defendants might not discover some.

Geert.

EU Private International Law., 3rd ed. 2021, Heading 7.3.1.

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The governing law of privilege. The Dutch courts in re Shell.

This item has been in the queue a long time – apologies. Thank you Marco Vogels for reporting end of 2019 on the Rotterdam court’s approach re privilege in ECLI:NL:RBROT:2019:7856, a criminal prosecution involving Shell. Marco’s report is most complete and I am happy to refer.

Compare the Dutch approach to my earlier reports on the issue in England and in the US. The Rotterdam court takes the law of the place of establishment of the (self-employed) solicitors as the connecting factor, ditto for in-house lawyers (on which The Netherlands takes an unusual (bu continental European standards) position of professional privilege). However the court also held that privilege falls away for the whole in-house legal department and all its lawyers, foreign established or not, if the head of legal is member of the Executive Committee.

Geert.

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Dutch Court denies jurisdiction in Chief of the Israeli General Staff case.

Update 7 December 2021 the judgment was confirmed upon appeal.

The judgment (in first instance; expect appeal) dismissing jurisdiction in Ismail Ziada v Benjamin Gantz is out in Dutch here and in English here. Gilles Cuniberti has reviewed the immunity issues here. I shall focus on the consideration of forum necessitatis, and can so do very briefly for the court does, too.

In essence the judgment on this point means that civil procedure rules on forum necessitatis do not set aside sovereign immunity based on public international law, and that the ECtHR judgment in Naït-Liman does not alter that finding. In that case, the ECtHR nudged States to consider a forum necessitatis rule:

‘“Nonetheless, given the dynamic nature of this area, the Court does not rule out the possibility of developments in the future. Accordingly, and although it concludes that there has been no violation of Article 6 § 1 in the present case, the Court invites the States Parties to the Convention to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture, while assessing carefully any claim of this nature so as to identify, where appropriate, the elements which would oblige their courts to assume jurisdiction to examine it.”

In Ismail Ziada v Benjamin Gantz the Court simply remarked that ECtHR authority on the issue all concerns immunity of international organisations not, as here, State sovereign immunity, in which consequently (in the court’s view) forum necessitatis does not have a role to play.

Geert.

 

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Suing the Chief of the Israeli General Staff in The Netherlands. Ismail Ziada v Benjamin Gantz tests Dutch forum necessitatis rules.

Update 7 December 2021  the judgment was confirmed upon appeal.

Update 10 February 2020 judgment (dismissing jurisdiction) out in NL here and in EN here. I have further analysis here.

Since the news broke in Mid-September of a Dutch claimant of Palestinian descent, suing former Chief of the General Staff Benjamin Gantz in The Netherlands, I have regularly checked ECLI NL for any kind of judgment. So far to no avail. I report the case now summarily, for it will be good to have a judgment (presumably first interlocutory: on the jurisdiction issue) to chew on.

The claim invokes the Dutch forum necessitatis rule (Article 9 CPR; other European States have similar rules), often also known as ‘universal jurisdiction’ however clearly the rule has its constraints. Claimant’s lawyer, Meester Liesbeth Zegveld, argues the application of the rule here. The piece includes assessment of sovereign immunity, and the involvement of Article 6 ECHR. Its outcome will also play a role in issues of corporate social responsibility and jurisdiction.

Clearly the moment I have a court opinion I shall post more.

Geert.

 

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Kiobel v Shell in The Netherlands. Court confirms jurisdiction anchored unto mother holding and qualifies the suit as one in human rights: not tort. Also orders limited use of documents obtained in US discovery and limited continuation of the trial.

Update 26 July 2019 the English version of the judgment is now available here.

In January 2017 I reported that Ms Kiobel, following failure to convince the USSC of jurisdiction under the Alien Tort Statute, subsequently initiated proceedings in the Dutch courts to try and sue Shell over the case. (Evidently unrelated to the pursuit of Shell in The Netherlands on environmental grounds – a case which is still pending upon appeal).

The court in first instance at the Hague on 1 May accepted jurisdiction against

  • both the mother holding. That was not at all under discussion: this is done via Article 4 Brussels Ia’s domicile rule. Use of Article 33 /34’s forum non conveniens-light mechanism was not suggested;
  • two English-incorporated Shell daughters using Article 8(1) of the Brussels I a Regulation; and
  • the Nigerian daughter company. Against the Nigerian daughter company, jurisdiction needs to be anchored unto the Dutch mother holding using Article 7 of the Dutch CPR, which is a near carbon copy of Article 8(1) Brussels Ia, whose CJEU authority is followed by Dutch courts in the interpretation of the Dutch residual rule.

Coming so soon after the UKSC in Vedanta the Dutch case has received quite a bit of attention. After first not considering an English translation (not surprisingly; these are the Dutch courts, not a World Service), the clerks have now announced that there will be one, coming up some time soon.

Readers of the blog will expect me to hold the judgment against a clear jurisdictional and conflict of laws lens – in doing so, I fear I have to be a little bit less optimistic than media soundbites following the case.

Jurisdictional issues were in the end dealt with fairly summarily. Most attention went to issues of evidence and discovery, as well as a first review of the substance of the case.

Of note is:

  • At 4.3: acceptance by all parties of of Nigerian law as the lex causae; if need be, choice of law by all parties for Nigerian law as the lex causae. Rome II is not applicable ratione temporis. The case has this in common with the Milieudefensie case against Shell. This being a civil law jurisdiction, ius novit curia applies. The court has taken into account parties’ submissions on Nigerian law yet has also conducted its own research. Foreign law is ‘law’ in the civil law; not ‘fact’ as in the common law.
  • Claimants suggest that in the events in Ogoniland Shell acted as one organisation and treated the issue as one engaging the Shell concern as a whole (4.7 in fine);
  • Claimants purposedly do not wish their claim to be qualified as one engaging piercing of the corporate veil; duty of care; shareholders responsibility; or tort of negligence. Rather, as one engaging the Shell concern directly in a suit on infringement of human rights included in the African Charter on Human and Peoples Rights (ACHPR) and the Nigerian constitution. Tort is only suggested as an alternative should the court not follow the arguments on the basis of human rights (4.8).
  • At 4.12 the Court accepts the horizontal direct effect of human rights under Nigerian law, referring for that finding to Nigerian case-law. At 4.19 the Court notes the absence of statutes of limitation for human rights violations under Nigerian law: thus qualifying this as an issue of substance (lex causae), not procedure (lex fori). It revisits the statute of limitation issue at 4.47 ff (holding that under Nigerian law the suits can still be brought).
  • At 4.26 the court applies A8(1) BIa and A7 Dutch CPR in globo, given the same lines of interpretation, and finds succinctly that all conditions (Kalfelis; Roche Nederland; The Tatry) are met. It remarks at 4.26 in fine that given the same situation of law and fact, it was predictable for all parties that they might end up being sued in any of their corporate siblings’ domicile.
  • At 4.27 the court discussed summary dismissal. As seen in Vedanta, despite Owusu European courts are within their rights to reject the case in summary judgment if there is no ‘real issue’ to be tried against the anchor defendant. However this only applies against non-EU based defendants. Application of Article 8(1) does not allow such summary dismissal for EU-based defendants (see also C-103/05 Reisch Montage). The Hague court reviews summary dismissal only vis-a-vis the Nigerian defendant but finds succinctly that the suit is not prima facie without merit. There is a serious issue to be tried.
  • At 4.28 interestingly the Court rejects relevance of the High Court and the Court of Appeal‘s dismissal of jurisdiction in Okpabi, arguing that these courts employed ‘English law’. This underscores the argument I have made elsewhere, that there is a serious blank in the discussion on lex causae for the duty of care or, depending on the case, the piercing issue. The Dutch court here notes without hesitation that the English courts apply lex fori to that test, and so therefore, I am assuming, should they (meaning Dutch law in their case)?
  • At 4.29 it looks as if the Court considers some kind of reflexive argument which defendants seem to have made. Namely that the Dutch courts should respect the exclusive jurisdictional head under the Fundamental Rights (Enforcement Procedure) – FREP Rules, for the Federal High Court in cases involving alleged infringement of human rights. However the Dutch court considers this a mere internal jurisdictional distribution rule, which does not hinder the Dutch courts in their assessment of the claims. There is no written or unwritten rule in Dutch private international law which suggests such deference to a Nigerian civil procedure rule.

Importantly, a great deal of attention at 4.30 ff  goes to the debate on the use of documents obtained in US discovery, in the Dutch proceedings. A fair amount of these had to be returned following a confidentiality agreement in the US proceedings. Claimants make recourse to Article 6 ECHR to regain access for use in the Dutch proceedings however the Dutch court curtails much of that. Common law discovery rules are notoriously more claimant friendly than those of the civil law (a comment also made by Marsh CM in Glaxo v Sandoz). It leads to Shell not having to turn over quite a large part of the documents claimants had hoped to use. [Note 18 May 2019 in my original post of 17 May I had ‘common’ law and ‘civil law’ accidentally mixed up in the previous sentence].

At 4.58 ff the Court then turns to the substance of the case for case management reasons, with a view to determining which parts of the claim may be made subject to further proof. It holds in a way which I imagine must have been very disappointing for claimants. Only limited claims (of the Nigerian daughter’s involvement in the bribing of witnesses) will be allowed to continue.

The court held that claims of controlling meddling in the Nigerian court proceedings were not proven with sufficient force for these claims to continue – instead it held that Shell’s policy of silent diplomacy, in line with its business policies, had been consistently carried out.

All in all I would suggest claimants have scored clear points on jurisdiction, minor points on discovery and a disappointing outcome for them on substance. Albeit that the witness bribe leg may still lead to a finding of human rights infringement.

Geert.

(Handbook of) European private international law, second ed. 2016, Chapter 8, Headings 8.3.1.1., 8.3.2.

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Ordre Public in Bankruptcy. The Dutch Supreme Court confirms non-recognition of Yukos liquidation order.

The Dutch Supreme Court late in January has confirmed the lower court’s decision (see my report here) in Yukos, not to recognise the Russian liquidation order of 1 August 2006 regarding OAO Yukos Oil Company. The decision to recognise or not evidently is based on residuary Dutch conflict of laws (the Insolvency Regulation is not engaged).

At 4.1.3 the Supreme Court emphasises that the principle of mutual trust does not apply, as it would do between EU jurisdictions. It then does not perform the entire ordre public exercise from scratch, rather assesses whether the lower court properly carried out said analysis (as befits its role as a Supreme Court). Which it finds, the Court of Appeals did. Its ordre public check did not in the abstract test Russian court proceedings, rather tested whether the precise conduct of all involved parties led to use of the judicial system in a way which compromises the core Dutch legal order (see for more detail on that, my earlier post).

Textbook ordre public.

Geert.