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Today’s win against #Shell in the @UKSupremeCourt is a crucial step toward long awaited redress for Nigerian claimants
It's also significant for those taking on other transnational corporate #humanrights & environmental harms. Some initial takeaways we think are important:
It's also significant for those taking on other transnational corporate #humanrights & environmental harms. Some initial takeaways we think are important:
1) Strong message against ‘mini-trials’ over jurisdictional issues: companies seek to avoid liability through preliminary challenges to jurisdiction, prior to disclosure obligations
As this case, filed in 2015, demonstrates, these challenges can take years & are costly, burdening less resourced claimants who often require redress urgently. That companies often settle if they lose these challenges further reflects their importance
Judgment - (a) emphasises that claimants shouldn't bear undue evidentiary burden at preliminary stage; (b) recognises importance to liability of undisclosed internal corporate documents; and (c) indicates companies can’t be trusted to disclose key evidence at preliminary stage
2) Builds on UKSC’s Vedanta judgment finding parent company could owe duty of care re subsidiaries’ activities. Court emphasises (a) parent company duty of care may arise from group wide policies/standards;
(b) ‘nothing special’ about parent/sub relationship makes such a duty unlikely, and it is determined by general principles, not as a distinct category, meaning no ‘added level of rigorous analysis’ is necessary at preliminary stage; and perhaps most significantly,
(c) control “is just a starting point”, key issue is assumption/sharing of management of relevant activity & regardless of control exercised, claiming it in public documents may be sufficient
3) Court makes no mention of Shell’s argument during the hearing that the case is about “uniquely Nigerian problems” and “complex and multifactorial problems w deep roots in the historic & societal problems in Nigeria” for which it couldn’t be considered responsible
Companies often try to claim damage associated with their transnational operations is due to various "problems" supposedly particular to global South states. This has found favour in other cases (see Kalma v AML), so important to note that it didn't here
