Global disputes, local courts?

Why would environmental damage in Nigeria be litigated in The Hague, The Netherlands? Or a worldwide Volkswagen “Dieselgate” in Amsterdam? Are Dutch courts better equipped to deal with complex litigation arising out of multinationals’ activities?

In January 2021, the Court of Appeal in The Hague held Shell Petroleum Development Company Nigeria (“SPDC”) liable to pay reparations for lost income caused by oil spills, and subsequent environmental pollution, in the Niger Delta. Simultaneously, the court found a duty of care owed by Royal Dutch Shell (“RDS”), SPDC’s parent company, to the affected Nigerian villagers and imposed an obligation on both companies to install leak detection systems, which would limit potential future environmental damage. This judgment illustrates well the role of Dutch courts as forum conveniens, Latin for appropriate forum, in the domain of collective redress and cross-border civil and commercial disputes and, where applicable, on the basis of foreign law(s).

Against the backdrop of recent Dutch case law, the online seminar “The Netherlands: a forum conveniens for collective redress?” was held on 5 February 2021 by Maastricht University, Tilburg University and the University of Amsterdam, with the collaboration of the Open University. The organisers identified possible factors that may reinforce the attractiveness of Dutch courts and discussed such factors in four panels with highly reputable speakers, both academics and practitioners.

The first panel on “The attractiveness of Dutch courts in the international scene” gathered Dr. Alexia Pato, McGill University, and Prof. Dr. Dres. h.c. Burkhard Hess, Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law. During this panel discussion, the speakers departed from the set premise that the instruments of European private international law (specifically the Brussels I and Rome II Regulations) are in need of specific rules for collective action and collective settlement. Moderated by Prof. Aukje van Hoek of the University of Amsterdam, the speakers shared the view for more tailor-made private international law rules for complex litigation.

Zooming in on the Dutch procedures, Flip Wijers, partner at Lemstra Van der Korst NV, and Daan Lunsingh Scheurleer, partner at Clifford Chance’s Amsterdam office, debated on the admissibility rules included in the Dutch Settlement of Large-scale Losses or Damage (Class Actions) Act; WAMCA), under the moderation of Dr. Cathalijne van der Plas, of Jahae Raymakers Advocaten. They expressed divergent views on the legal requirement that the claim must have a sufficient link to the Netherlands, and questioned its compatibility with EU law.

During the penultimate panel of the event, Assistant Prof. Vincent Smith of ESCP Business School London, Prof. Dr. Axel Halfmeier of Leuphana University and Ms. Paulien van der Grinten, Senior Legislative Lawyer at the Dutch Ministry of Justice and Security, discussed possible implementation methods of the new EU Directive on representative actions for the protection of the collective interests of consumers, within the context of the proposition that the limitation on standing (to pre-approved entities) in Article 4 of the Directive is a threat to Dutch cross-border actions. The panel was moderated by Prof. Dr. Ianika Tzankova of Tilburg University and Birkway Advocaten.

The final panel, comprised of Prof. Dr. Xandra Kramer of the Erasmus School of Law and Mr. Alexander Layton QC of Twenty Essex, concludingly addressed the market for mass litigation, setting out from the proposition that the position of the Netherlands is reinforced in a fragmented international legal landscape (in post-Brexit times). With Prof. Marta Pertegás Sender from Maastricht University moderating, the discussion revealed that The Netherlands has specific assets that may attract such complex litigation, although the position of London as prime international dispute settlement hub in Europe is not contested.

Tim Draband, research intern at the Maastricht European Private Law Institute (M-EPLI)

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