Multinationals and Transparency in Foreign Direct Liability Cases - The Prospects for Obtaining Evidence Under the Dutch Civil Procedural Regime on the Production of Exhibits

Abstract

On 30 January 2013, the The Hague district court rendered a final judgment with respect to a number of civil liability claims against Royal Dutch Shell (RDS) and its Nigerian subsidiary Shell Petroleum Development Company of Nigeria (SPDC) that had been pursued by four Nigerian farmers and the Dutch NGO Milieudefensie in relation to various oil spills from SPDC-operated pipelines in the Nigerian Niger Delta. This case, including the January 2013 ruling by the The Hague district court, is interesting for a number of reasons. One of them is that it forms part of a broader, worldwide trend towards similar civil liability procedures that has come up over the past two decades in Western societies around the world.One of the main characteristics of these so-called 'foreign direct liability cases' is the inequality of arms that typically exists between the host country plaintiffs on the one hand and the corporate defendants on the other when it comes to financial scope, level of organization and access to relevant information. As a consequence, the procedural rules pertaining to the collection of evidence that apply in the forum countries in which they are pursued typically play an important part in these cases. This also means that in countries where the prospects for obtaining evidence in civil procedures are poor, this may add a potentially crucial procedural barrier for host country plaintiffs seeking to pursue foreign direct liability claims that may be difficult to overcome.The main question to be answered in this article is what the prospects are for plaintiffs in Dutch foreign direct liability claims (i.e. foreign direct liability claims pursued before Dutch courts against multinational corporations that are based in the Netherlands) when it comes to obtaining evidence under the Dutch civil procedural regime on the production of exhibits. This question is highly relevant, since the course of the proceedings in the first and (so far) only Dutch foreign direct liability case, the Dutch Shell Nigeria case, suggest that the Dutch procedural regime on the collection of evidence may pose a significant hurdle for plaintiffs seeking to pursue foreign direct liability claims before Dutch courts.