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The court of appeal has opened the session #shellcase
Full decision (150 p) will be on http://rechtspraak.nl after the session today.
Decision consists of three separate decisions, concerning three factual issues; was supposed to be delivered in three parts by separate judges, but due to corona it will be restricted to two. First judge is up now.
First case concerns oil spills near Oruma, Nigeria, in June 2005. Second case concerns spills in Goy in 2004.
Respectively 10 and 40 football pitches destroyed by the oil spills; in each case, Shell cleaned up some of the grounds later.
Applicable law is Nigerian law, primarily the Oil Pipeline Act (already determined in preliminary decision, not disputed by the parties).
According to CoA, Shell must prove "beyond reasonable doubt" that oil spills were caused by sabotage. Merely arguing that it was likely or possible is not sufficient.
Expert report did not show that spills by caused by sabotage, "beyond reasonable doubt". So, SPDC (Shell Nigeria) is liable. All other claims concerning the causes, against RDS particularly, are dismissed.
Regarding Shell's response, CoA notes that it is difficult for Shell to respond quickly to leaks and spills. Milieudefensie had argued that leak detection system should have been applied.
CoA holds that SPDC should have installed LDS in Oruma pipeline. Omitted doing so, so liable under tort of negligence for Oruma damage. Orders to install LDS.
Now for RDS liability.
CoA holds that RDS *did* have duty of care under Nigerian law, to ensure that LDS had to be applied in Oruma.
This is MAJOR.
This is MAJOR.
No LDS obligation in other cases, because pipeline was already replaced and LDS installed. But, liability for inadequate response to spills. CoA orders compensation.
No liability on either SPDC or RDS for inadequate cleanup, but remaining aspects of cleanup could be part of later determination of damages.
Third case, oil spills in Ikot Ada Udo. Only case where claims were upheld by the District Court.
Court of Appeals sides with District Court on the cause, which it determines to be sabotage. But, question is whether Shell should have taken more measures against sabotage.
CoA will *not* rule on this case today. More factual research is needed, after parties changed their arguments on appeal. Will continue later.
Session closed. Full decision including legal reasoning, and including interlocutory decision on Akpan/Ikon Aka Udo case, will be on http://rechtspraak.nl .
This is quite the victory for @milieudefensie and @channasamkalden, and of course for the Nigerian claimants. Much more than I expected, especially because of the finding of a duty of care on RDS.
I'll take some time to read the decision and come back with a (preliminary) analysis on CoA's legal holdings later today. First, coffee.
(Apologies for typos and possible errors in the use of English legal terminology, had to listen, translate and type at the same time)