The significance of the Newsweek article is therefore threefold: firstly Shell appears to have misled the court in the Hague which from a reputational perspective is extremely damaging (hence the headline of the article), secondly the case will now return to court for a retrial, and thirdly the lawyers and witnesses in the original case may be subject to legal action by the Dutch authorities.
POSTED BY JOHN DONOVAN
I’m not a lawyer, but the following is my understanding of the significance of the Newsweek article and the case brought by the “Friends of the Earth”.
The two Nigerian cases are actually very significant to anyone forced to confront Shell in a Dutch court.
Unlike the UK or US, there is no “discovery” in Holland and no opportunity to request documents from the other side to support a case.
The system works when everyone is honest, but fails dismally when US or UK lawyers see their role as “misleading the court” to the advantage of their client. For many lawyers, this is of course the basis of hearings in the US and the UK.
In Holland, “misleading the court” is a very serious offence, and lawyers and witnesses are very careful to avoid presenting anything to a court which might be construed as “misleading”. In general, submissions are in writing, so remain on the record. There is no statute of limitations for cases to be referred back to a court if submissions are subsequently found to have been misleading, and the penalties for witnesses and lawyers found to have misled a court are very severe. In contrast, both the US and English courts generally protect witnesses from prosecution if their testimony is subsequently found to have been inaccurate.
American and English lawyers who fail to understand this and assume that they can say whatever they choose in their court submissions in Holland are taking a major risk, as any court decision in Holland is subject to review if the court was misled at the original hearing.
It appears that in the Nigerian case, discovery documents from the English case indicated that Shell’s previous submissions to a court in the Hague had been inaccurate, but had been accepted by the Dutch judges and used in making their decision (no jury is involved).
The significance of the Newsweek article is therefore threefold: firstly Shell appears to have misled the court in the Hague which from a reputational perspective is extremely damaging (hence the headline of the article), secondly the case will now return to court for a retrial, and thirdly the lawyers and witnesses in the original case may be subject to legal action by the Dutch authorities.
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Nigeria’s parliament says Shell should pay $4 billion for 2011 oil spill: Reuters Wed 26 Nov 2014
Extracts
(Reuters) – Nigeria’s National Assembly said on Wednesday oil major Shell should pay $3.96 billion for a 2011 spill at its offshore Bonga oilfield in the latest assessment of damage to the environment.
Shell is also being pursued in a class action case for two other spills in the Niger Delta in 2008. In June, it offered 30 million pounds ($51 million) in compensation to 15,000 residents in the Bodo Community but this was rejected.
The
United Nations Environment Programme has criticised Shell in the past for not doing enough to clean up spills and maintain infrastructure.
On Monday, Shell had to shut down a pipeline as a result of a new leak close to where it was removing oil taps.
Major Opec nations, Russia and US shale oil drillers now appear on the brink of a price war as these three giant producing blocs fight for a greater share of global demand. (Potentially disastrous news for Big Oil – ExxonMobil, Shell, BP, Chevron and Total)
