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Litigating Extraterritorial Nuisances under English Common Law and UK Statute

Published online by Cambridge University Press:  20 December 2016

Elena Merino Blanco  and
Ben Pontin
Elena Merino Blanco
Affiliation:
Bristol Law School, University of the West of England (UWE), Bristol (United Kingdom (UK)). Email: [email protected].
Ben Pontin
Affiliation:
Cardiff School of Law and Politics, Cardiff University, Wales (UK). Email: [email protected].
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Abstract

English common law and United Kingdom legislation provide various – overall liberal – jurisdictional grounds for hearing foreign tort claims. The article examines these grounds with reference to recent and ongoing oil pollution nuisance litigation involving Royal Dutch Shell Plc and its Nigerian subsidiary operating in the Niger Delta. Particular attention is given to the factors taken into account by the court in exercising its discretion to allow service out of the jurisdiction in cases of pollution taking place abroad under the principle of forum non conveniens. Following the widely commented decision of the United States Supreme Court in Kiobel v. Royal Dutch Petroleum Corporation, which ruled against the extraterritorial application of the Alien Tort Statute, it is easy to forget that the rules of jurisdiction vary from country to country and that different legal systems apply similar concepts in often radically different ways. Attention is also given to the future development of English jurisdictional law and practice in the context of environmental nuisance.

Keywords

Extraterritorial environmental litigationForeign nuisanceService out of the jurisdictionForum non conveniensShellNatural forum
Type
Articles
Information
Transnational Environmental Law , Volume 6 , Issue 2 , July 2017 , pp. 285 - 308
Copyright
© Cambridge University Press 2016 

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Footnotes

The authors are grateful to Martyn Day for access to records relating to the unreported Shell nuisance litigation addressed in this article.

References

1 See, e.g., Lord Millett in Southwark London Borough Council v. Mills [2001] AC 1, 20 (‘Good neighbourliness, involves reciprocity. A landowner must show the same consideration for his neighbour as he would expect his neighbour to show for him’).

2 Palmer, R., ‘Common Law Environmental Protection: The Future of Private Nuisance, Part 1’ (2014) 6(1–2) International Journal of Law in the Built Environment, pp. 21–42 Google Scholar, at 21. For case studies on the application of nuisance law in an environmental setting see B. Pontin, Nuisance Law and Environmental Protection (Lawtext, 2013).

3 E.g., in the British Mandate Palestine case of Heller v. Taasiyah Chemith Tel Aviv Co. Ltd (1944) SCJ 37, Judge Windham granted an injunction against a polluting chemical factory located near Tel Aviv (Israel). He held that Art. 1200 Mejelle Code – the local law addressing nuisance – was supplemented by substantive English common law nuisance provisions and the equitable remedy of an injunction (p. 38). Reference is made to a ‘long line of English cases to the effect that it is no defence to a civil action for nuisance to show that the benefit to the general public [of the polluting activity] exceeds the detriment to the plaintiff’ (p. 43). See further Schorr, D., ‘A Prolonged Recessional: The Continuing Influence of British Rule on Israeli Environmental Law’, in D. Orenstein, C. Miller & A. Tal (eds), Between Ruin and Restoration: An Environmental History of Israel (University of Pittsburgh Press, 2013), pp. 209–228 Google Scholar.

4 Foreign nuisance-like litigation against Shell is not exclusive to England. Four Nigerians and the campaign group Friends of the Earth filed suits in 2008 in The Hague (the Netherlands), where Shell has its global headquarters, seeking reparation for lost income from contaminated land and waterways in the Niger Delta region, the heart of the Nigerian oil industry. The District Court of The Hague ruled that Shell Petroleum Development Company of Nigeria Ltd (SPDC), a wholly-owned subsidiary, must compensate one farmer, but dismissed four other claims filed against the Dutch parent company: Akpan v. Royal Dutch Shell Plc and SPDC, District Court of the Hague, 30 Jan. 2013, LJN:BY9854, C/09/337050/HAZA 09-1580, available at: http://www.milieudefensie.nl/publicaties/bezwaren-uitspraken/final-judgment-akpan-vs-shell-oil-spill-ikot-ada-udo; Dooh v. Royal Dutch Shell Plc and SPDC, District Court of the Hague, 30 Jan. 2013, LJN:BY9854, C/09/337058/HAZA 09-1581, available at: http://www.milieudefensie.nl/publicaties/bezwaren-uitspraken/final-judgment-dooh-vs-shell-oil-spill-goi; Efanga & Oguru v. Royal Dutch Shell Plc and SPDC, District Court of the Hague, 30 Jan. 2013, LJN:BY9850, C/09/330891/HAZA 09-0579, available at: http://www.milieudefensie.nl/publicaties/bezwaren-uitspraken/final-judgment-oguru-vs-shell-oil-spill-goi.

5 Royal Dutch Shell Plc is one of the world’s largest independent oil and gas companies. Its registered office and place of incorporation are in the UK. It is domiciled in the UK and listed on the Financial Times Stock Exchange (FTSE). It is the parent company of the Shell group of companies (the Shell Group).

6 [2014] EWHC 1973 (Technology and Construction Court (TCC)) (Bodo Community).

7 Lucky Alame and Ors v. Royal Dutch Shell Plc and SPDC; His Royal Highness Emere Godwin Bebe Okpabi and Ors v. Royal Dutch Shell Plc and SPDC (unreported leave decisions of His Honour Judge Raeside QC, TCC, 2 Mar. 2016). The discussion of this emerging civil action draws on Claim No. HT-2015-000241, Exhibit DL/1 (Witness Statement of Daniel Learner) and Claim No. HT-2015-000430, Exhibit MD/1 (Witness Statement of Martyn Day). The cases will be referred to as the Ogale and Bille claims.

8 Ibid.

9 Brussels I Recast Regulation, n. 16 below, Art. 4.

10 133 S. Ct. 1659 (2013). For commentary on the case see, among others, ‘Agora: Reflections on Kiobel. Excerpts from the American Journal of International Law and AJIL Unbound’, available at: https://www.asil.org/sites/default/files/AGORA/201401/AJIL%20Agora-%20Reflections%20on%20Kiobel.pdf. See also Grear, A. & Weston, B., ‘The Betrayal of Human Rights and the Urgency of Universal Corporate Accountability: Reflections on a Post-Kiobel Lawscape’ (2015) 15(1) Human Rights Law Review, pp. 21–44 Google Scholar.

11 28 U.S.C. § 1350. Although the Court left the door open for those claims that sufficiently ‘touch and concern’ the US: McCorquodale, R., ‘Waving not Drowning: Kiobel Outside the United States’ (2013) 107(4) American Journal of International Law, pp. 846–851 Google Scholar.

12 Even though the qualification of ‘claimant-friendly’ has been challenged by different academics: see, e.g., Dine, J., ‘Jurisdictional Arbitrage by Multinational Companies: A National Law Solution’ (2012) 3(1) Journal of Human Rights and the Environment, pp. 44–69 Google Scholar, at 45.

13 Colangelo, A.J., ‘The Alien Tort Statute and the Law of Nations in Kiobel and Beyond’ (2013) 44(4) Georgetown Journal of International Law, pp. 1329–1346 Google Scholar; Alford, R.P., ‘The Future of Human Rights Litigations after Kiobel ’ (2013–14) 89 Notre Dame Law Review, pp. 1749–1772 Google Scholar.

14 Wuerth, I., ‘Kiobel v Royal Dutch Petroleum Co: The Supreme Court and the Alien Tort Statute’ (2013) 107(3) American Journal of International Law, pp. 601–621 Google Scholar.

15 Notably in those adhering to the Brussels I Recast Regulation (n. 16 below) where claims initiated against a defendant domiciled within the territory of a Member State will proceed.

16 The ‘Brussels system’ is used to denote provisions under Regulation (EC) No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters [2001] OJ L 12/1 (Brussels I Regulation), as of 10 Jan. 2015 replaced by Regulation (EU) No. 1215/2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters [2012] OJ L 351/1 (Brussels I Recast Regulation); and the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Lugano (Italy), 30 Oct. 2007, in force 1 Jan 2010 (replacing the original 1988 Lugano Convention), available at: http://ec.europa.eu/world/agreements/downloadFile.do?fullText=yes&treatyTransId=13041. The Lugano Convention extends rules that are virtually similar to those under the Brussels I Regulation to Iceland, Norway and Switzerland.

17 In this article, ‘England’ is used as a shorthand in jurisdiction terms for England and Wales.

18 Connelly v. RTZ Plc [1998] AC 854 (Connelly).

19 Lubbe and Ors v. Cape Plc [2000] 1 WLR 1545 (Lubbe).

20 Although the jurisdictional grounds have changed in respect of these cases by virtue of the impossibility for the English court of staying actions in cases where jurisdiction derives from the Brussels system. This is discussed in detail in Section 4 below.

21 Cherney v. Derikpaska [2009] EWCA Civ 849; [2010] 2 All ER (Comm) 456; approving [2008] EWHC 1530 (Comm); [2009] 1 All ER (Comm) 333 (Cherney).

22 AK Investment CJSC v. Kyrgyz Mobil Tel Ltd [2011] UKPC 7 (Kyrgyz Mobil).

23 Spiliada Maritime Corp. v. Cansulex Ltd [1987] AC 460 (Spiliada).

24 On unilateralism, see Shaffer, G. & Bodansky, D., ‘Transnationalism, Unilateralism and International Law’ (2012) 1(1) Transnational Environmental Law, pp. 31–41 Google Scholar.

25 On the theoretical basis of jurisdiction, see Merrick Dodd, E. Jr, ‘Jurisdiction in Personal Actions’ (1929) 23(5) Illinois Law Review, pp. 427–445 Google Scholar.

26 According to the English traditional rules, symbolic power over the defendant or his property, either through physical service of a summons while in the forum or seizure of property (often land) located in the forum, justified the basis of jurisdiction: ‘Whoever is served with the King’s writ and can be compelled consequently to submit to the decree made is a person over whom the courts have jurisdiction’: John Russell & Co. Ltd v. Cayzer, Irvine & Co. Ltd [1916] 2 AC 298 (House of Lords (HL)), at 302. Very few limits were established under this rule, the main ones involving the use of deception or enticing the defendant fraudulently or improperly: Watkins v. North American Timber Co. Ltd (1904) 20 TLR 534.

27 On the symbolic aspect of this, see Lord Sumption in Abela and Ors v. Baadarani [2013] 1 WLR 2043 (Abela), p. 2063; Lord Clarke concurred (p. 2060). See discussion below in this section.

28 Kiobel, n. 10 above, p. 1669.

29 N. 16 above.

30 Brussels I Recast Regulation, n. 16 above, Art. 4: ‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State’.

31 Ibid., Arts 25 and 26. This is developed in this section in respect of the English traditional rules.

32 Kant, I., Practical Philosophy (ed. and trans. M. Gregor, Cambridge University Press, 1999)Google Scholar.

33 Raz, J., ‘Rule of Law and its Virtue’, in J. Raz (ed.), The Authority of Law: Essays on Law and Morality, 2nd edn (Oxford University Press, 2009), pp. 210–232 Google Scholar.

34 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Rome (Italy), 4 Nov. 1950, in force 3 Sept. 1953, Art. 6(1), available at: http://www.echr.coe.int/Documents/Convention_ENG.pdf.

35 See Adede, A., ‘A Fresh Look at the Meaning of the Doctrine of Denial of Justice under International Law’ (1976) 14 Canadian Yearbook of International Law, pp. 73–95 Google Scholar.

36 Briggs, A., The Conflict of Laws (Oxford University Press, 2013), pp. 110–112 Google Scholar.

37 The court with jurisdiction derived from the Brussels system cannot stay actions on the basis of forum non conveniens, following the judgment of the Court of Justice of the European Union (CJEU) in Case C–281/02, Andrew Owusu v. N.B. Jackson [2005] ECR I–1383 (Owusu v. Jackson).

38 Brussels I Recast Regulation, n. 16 above, Art. 4.

39 Ibid., Art. 62 for individuals, Art. 63 for companies.

40 SI 2001 No. 3929: s. 9 ‘Domicile of an individual; and s. 10 ‘Seat of company, or other legal person or association for purposes of Article 22(2) (s. 43).

41 Brussels I Recast Regulation, n. 16 above, Art. 63.

42 Ibid., Arts 25 and 26.

43 A. Nuyts, ‘Study on Residual Jurisdiction: Review of the Member States’ Rules concerning the “Residual Jurisdiction” of their Courts in Civil and Commercial Matters pursuant to the Brussels I and II Regulations’, European Commission, 3 Sept. 2007, p. 64, available at: http://ec.europa.eu/civiljustice/news/docs/study_residual_jurisdiction_en.pdf.

44 For a discussion on the possibility of introducing an alternative general forum based on ‘necessity’ or access to justice see C. Nwapi, ‘Jurisdiction by Necessity and the Regulation of the Transnational Corporate Actor’ (2014) 30(78) Utrecht Journal of International and European Law, pp. 24–43, at 32.

45 For a discussion of common law rules relating to agreements on jurisdiction see Fawcett, J. & Carruthers, J.M., Cheshire, North and Fawcett’s Private International Law (Oxford University Press, 2008), pp. 383–448 Google Scholar. Agreements on jurisdiction for the court of a Member State are validated by Art. 25 Brussels I Recast Regulation; note also The Hague Choice of Court Convention, The Hague (the Netherlands), 30 June 2005, in force 1 Oct. 2015, available at: https://www.hcch.net/en/instruments/conventions/full-text/?cid=98.

46 Civil Procedure Rules (UK) (CPR), r. 11(5).

47 CPR, para. 6.4(2).

48 See CPR r. 6.20(5)(d) (formerly RSC Ord. 11, r. 1(1)(d)(iv)); Fawcett & Carruthers, n. 45 above, p. 382. The court is also unlikely to stay an action on the grounds of forum non conveniens where there is a valid English jurisdiction clause.

49 E.g., in cases in respect of title to foreign land, or family matters where jurisdiction fora are compulsory. The title issue is particularly pertinent to nuisance law (see n. 124 below, and associated text).

50 Ibid.

51 See n. 26 above and associated text.

52 Discussed in Section 4 below.

53 ‘Whoever is served with the King’s writ and can be compelled consequently to submit to the decree made is a person over whom the courts have jurisdiction’: John Russell & Co. Ltd v. Cayzer, Irvine & Co. Ltd, n. 26 above, p. 302.

54 CPR r. 6.3. Service may be made personally, by post, or by certain electronic means.

55 Companies Act 2006 (UK), s. 1139(1).

56 South India Shipping Corpn Ltd v. Export-Import Bank of Korea [1985] 1 WLR 585 (Court of Appeal (CA)); see also CRP r. 6.3(2); Saab v. Saudi American Bank [1999]1 WLR 1861 (CA).

57 Spiliada n. 23 above, p. 476.

58 Ibid., p. 477.

59 The second limb of the Spiliada test.

60 Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), and Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), analyzing the ‘private interest factors’ affecting the litigants’ convenience and the ‘public interest factors’ affecting the forum’s convenience. A four-step approach is used by the 11th Circuit Court as in Aldana v. Del Monte Fresh Prod N.A., Inc., 2009 WL 2460978, 5-6 (11th Cir.,13 Aug. 2009).

61 Nwapi, n. 44 above, p. 33.

62 This is the case of Belgium or the Netherlands: see Nuyts, n. 43 above, p. 64.

63 Spiliada, n. 23 above, p. 476.

64 Mohamed v. Bank of Kuwait and the Middle East KSC [1996]1 WLR 1483.

65 Ibid., p. 1485 (emphasis added). Mohamed has been criticized as an example of the wrongful coalescence of the first and second prongs of the Spiliada test: L. Merrett, ‘Uncertainty in the First Limb of the Spiliada Test’ (2005) 54(1) International & Comparative Law Quarterly, pp. 211–20.

66 Stewart, R., Chapman, G. & Yeginsu, C., ‘Londongrad Calling: Jurisdictional Battles in the English Courts’ (2014) 8(1) Dispute Resolution International, pp. 25–36 Google Scholar, at 26.

67 Carvill America Inc. v. Camperdown UK Ltd [2005] 2 Lloyd’s Rep 457, para. 24.

68 Canada Trust Co. v. Stolzenberg (No. 2) [1998] 1 WLR 547, at 555–7, per Waller LJ (affirmed [2002] 1 AC 1); Bols Distilleries BV v. Superior Yacht Services (trading as Bols Royal Distilleries) [2007] 1 WLR 12.

69 The Atlantic Star [1974] AC 436 (HL).

70 Spiliada, n. 23 above.

71 N. 21 above.

72 N. 22 above.

73 The concept of the ‘natural forum’ was discussed in The Atlantic Star, n. 69 above, Mac Shannon v. Rockware Glass [1978] AC 705, and The Abidin Daver [1984] AC 398 in the lead-up to adoption of the forum (non) conveniens doctrine in England by Spiliada.

74 Recently, in tort cases, by the House of Lords in Berezovsky v. Michaels [2000] 1 WLR 1004 (HL); but see below.

75 [2010] EWCA Civ 808; [2013] UKSC 5.

76 This had been left as an open question in Cordoba Shipping Co. Ltd v. National State Bank (The ‘Albaforth’) [1984] 2 Lloyd’s Rep 91, and Berezovsky v. Forbes Inc. and Michaels [2000] 1 WLR 1004.

77 Collins, L., ‘Some Aspects of Service Out of Jurisdiction in English Law’ (1972) 21(4) International and Comparative Law Quarterly, pp. 656–681 Google Scholar.

78 [1944] KB 432, at 437 (cited in Collins, ibid., p. 658).

79 Malik v. Narodni Banka Ceskoslovenska [1946] 2 All ER 663, at 664 (per Lord Goddard CJ).

80 Aaronson Brothers v. Maderera del Tropica SA [1967] 2 Lloyd’s Rep 159, at 161 (per Winn LJ).

81 Massey v. Hayes (1888) 21 QBD 330, at 334 (per Wills J).

82 Dunlop Rubber Co. Ltd v. Dunlop [1921] 1 AC 367, at 373 (per Lord Birkenhead).

83 N. 21 above.

84 Despite this, in a detailed and carefully reasoned judgment (ibid., [2008] EWHC 1530 (Comm)), Christopher Clarke J found that the court had a basis for exercising its discretion to take jurisdiction as it was common ground that, if the relevant agreement was made, it was made in England and one of the jurisdictional gateways of CPR Pt 6 PD 6B was engaged.

85 For a vigorous criticism of the decision see Briggs, A., ‘Forum non Satis: Spiliada and an Inconvenient Truth’ (2011) 3 Lloyd’s Maritime and Commercial Law Quarterly, pp. 329–333 Google Scholar.

86 Steward, Chapman & Yeginsu, n. 66 above, p. 30.

87 N. 22 above.

88 Briggs, n. 85 above, p. 330.

89 Kyrgyz Mobil, n. 22 above, p. 33.

90 Arzandeh, A., ‘Should the Spiliada Test Be Revised?’ (2014) 10(1) Journal of Private International Law, pp. 89–112 Google Scholar, at 90.

91 Abela, n. 27 above.

92 The Hague (the Netherlands), 15 Nov. 1965, in force 10 Feb. 1969, available at: https://www.hcch.net/en/instruments/conventions/full-text/?cid=17.

93 Cited by Lord Clarke in Abela (n. 27 above) in relation to Longmore LJ in the Court of Appeal.

94 Ibid., p. 2063; Lord Clarke concurred (p. 2060).

95 Ibid.

96 Ibid.

97 OJSC Oil Company Yugraneft (in liquidation) v. Abramovich and Ors [2008] EWHC 2613 (Comm) (Yugraneft).

98 Erste Group Bank AG (London Branch) v. JSC ‘VMZ Red October’ and Ors [2013] EWHC 2913 (Comm). A similar conclusion was reached in respect of Ukraine in Pacific International Sports Club Ltd v. Soccer Marketing International Ltd and Ors [2009] EWHC 1839 (Ch), and Ferrexpo AG v. Gilson Investments Ltd and Ors [2012] EWHC 721 (Comm).

99 [1973] 1 QB 364 (CA), at 381–2.

100 Lubbe, n. 19 above, p. 1545.

101 Briggs (n. 85 above, p. 330) stresses that the English courts ‘aside from egregious examples where the facts needed no commentary, [h]ad gone out of their way to discourage litigants who, having no other cards to play, sought to resist a stay or to obtain permission to serve out on the basis that the relevant foreign jurisdiction was dreadful and not to be trusted’.

102 Dicey, A.V., Introduction to the Study of the Law of the Constitution (Macmillan, 1915, first published 1889)Google Scholar.

103 Dicey, A.V., A Digest of the Laws of England with Particular Reference to Conflicts of Laws (Stevens and Sons, 1896)Google Scholar.

104 Ibid., p. 116.

105 Ibid., pp. 119–20 (‘The fact, again, that in many foreign countries the rights of individuals, e.g. to personal freedom, depend upon the constitution, whilst in England the law of the constitution is little else than a generalisation of the rights which the Courts secure to individuals, has this important result. The general rights guaranteed by the constitution may be, and in foreign countries constantly are, suspended’).

106 Ibid.

107 On judicial review see Craig, P., ‘The Common Law, Shared Power and Judicial Review’ (2004) 24(4) Oxford Journal of Legal Studies, pp. 237–257 Google Scholar.

108 According to the criteria mentioned above in Section 2.

109 According to the principles established by Lord Goff in Spiliada, n. 23 above.

110 N. 37 above.

111 See Section 2 above. See also Re Harrods (Buenos Aires) Ltd [1990] 4 All ER 3347, in which the Court of Appeal held that ‘an English court could stay proceedings brought against an English domiciled defendant when the court was convinced that a non-contracting state was clearly the more appropriate forum’.

112 Connelly, n. 18 above, p. 873.

113 Ibid.

114 Ibid.

115 Ibid., at 866 (‘Faced with the stark choice between one jurisdiction, albeit not the most appropriate in which there could in fact be a trial, and another jurisdiction, the most appropriate in which there never could, in my judgment, the interests of justice would tend to weigh, and weigh strongly, in favour of that forum in which the plaintiff could assert his rights’, per Bingham MR).

116 Ibid., p. 876. Connelly was received with dismay by the business community: ‘RTZ Ruling Threatens other Multinationals’, The Financial Times, 25 July 1997; and the Lord Chancellor proposed legislation to reverse the effect of the House of Lords’ ruling: for a discussion of this case see Meeran, R., ‘Tort Litigation against Multinational Corporations for Violation of Human Rights: An Overview of the Position Outside the United States’ (2011) 3(1) City University of Hong Kong Law Review, pp. 1–41 Google Scholar, at 28.

117 Lubbe, n. 19 above, p. 1559.

118 Ibid.

119 The Trafigura case, which concerned victims of toxic waste dumping in Côte d’Ivoire, was atypical in this respect as it involved the UK head office company itself and no subsidiary: Yao Essaie Motto & Others v. Trafigura Ltd and Another [2009] EWHC 1246 (QB), para. 28.

120 Guerrero & Others v. Monterrico Metals Plc [2009] EWHC 2475 (QB).

121 For a discussion of both, see Meeran, n. 116 above.

122 Leigh Day & Co, ‘History of the Bodo Litigation’, available at: https://www.leighday.co.uk/International-and-group-claims/Nigeria/History-of-the-Bodo-litigation.

123 As SPDC Nigeria alleged in Oguru, Efanga & Milieudefensie v. Royal Dutch Shell Plc and Shell Petroleum Development Co. Nigeria Ltd, No. 330891/HA ZA 09-579 2009.

124 Re Polly Peck International Plc (No. 2) [1998] 3 All ER 812, p. 828 (per Mummery LJ).

125 Bodo Community, n. 6 above, para. 165.

126 N. 7 above.

127 Bodo Community, n. 6 above.

128 Ibid., para. 179.

129 For acts and omissions that occurred between 1 May 1996 and 11 Jan. 2009.

130 Bodo Community, n. 6 above. Regulation (EC) No. 864/2007 of 11 July 2007 on the Law Applicable to Non-Contractual Obligations.

131 Exhibit DL/1 (Witness Statement of Daniel Learner), n. 7 above, para. 34.

132 Ogale and Bille, n. 7 above.

133 Connelly, n. 18 above, per Bingham MR.

134 Ibid., p. 873.

135 And similar cases such as Yugraneft, n. 97 above.

136 Exhibit DL/1 (Witness Statement of Daniel Learner), n. 7 above, para. 44(b)(i).

137 Ibid., para. 44(b)(iv).

138 S. Joab, D. Peterside & M. Watts, ‘Rethinking Conflict in the Niger Delta: Understanding Conflict – Dynamics, Justice and Security’, University of California, Institute of International Studies, Working Paper No. 26, 2012, available at: http://siteresources.worldbank.org/INTJUSFORPOOR/Resources/Watts_26_Revised.pdf.

139 Wiwa et al. v. Royal Dutch el al., No. 96 Civ. S386 (KMW-HBP), in which the claimants sought damages from the Shell Group’s parent companies for human rights abuses, including their involvement in the deaths of Ken Saro-Wiwa and other Ogoni activists. The claim was settled.

140 Exhibit DL/1 (Witness Statement of Daniel Learner), n. 7 above, para. 44(b)(iii).

141 Ibid.

142 Muchlinski, P.T., ‘The Bhopal Case: Controlling Ultrahazardous Industrial Activities Undertaken by Foreign Investors’ (1987) 50(5) The Modern Law Review, pp. 545–587 Google Scholar, at 580.

143 Ibid, p. 581.

144 Frynas, J.G., ‘Political Instability and Business: Focus on Shell in Nigeria’ (1998) 19(3) Third World Quarterly, pp. 457–478 Google Scholar.

145 Joab, Peterside & Watts, n. 138 above.

146 Karayanni, M., ‘Access to Justice Ascends to International Civil Litigation: The Case of Palestinian Plaintiffs before Israeli Courts’ (2014) 33(1) Civil Justice Quarterly, pp. 41–75 Google Scholar.

147 Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip 1995, Annex IV, Protocol Concerning Legal Affairs, 28 Sept. 1995, Art. 3.2(c), available at: http://www.mfa.gov.il/MFA/ForeignPolicy/Peace/Guide/Pages/THE%20ISRAELI-PALESTINIAN%20INTERIM%20AGREEMENT%20-%20Annex%20IV.aspx#article3.

148 Kelly, T., ‘Access to Justice: The Palestinian Legal System and the Fragmentation of Coercive Power’, Crisis States Research Centre, London School of Economics and Political Science, Crisis States Research Centre Working Papers Series 1, 2004, p. 41 Google Scholar.

149 Karayanni, n. 146 above, p. 49.

150 Qato, D. & Nagra, R., ‘Environmental and Public Health Effects of Polluting Industries in Tulkarm, West Bank, Occupied Palestinian Territory: An Ethnographic Study’ (2013) 382(5) The Lancet, S29, pp. 1–14 Google Scholar, at 5; Pontin, B., de Lucia, V. & Gamero Rus, J., Environmental Injustice in Occupied Palestinian Territory (Al Haq, 2015), pp. 79–80 Google Scholar.

151 Pontin, de Lucia & Gamero Rus, ibid.

152 Qato & Nagra, n. 150.

153 See Section 2 above for an overview of ordinary jurisdiction grounds.

154 It is important to remember that those were present in Cherney (n. 21 above) and in Kyrgyz Mobil (n. 22 above). Note, however, the reflection advanced by Briggs that if what drives the court to allow service out of jurisdiction is the fact that England is the forum conveniens, the requirement to satisfy taxonomic gateways is unjustified: Briggs, n. 36 above, p. 123.

155 If it did, it would amount to the doctrine of forum of necessity.

156 What Cherney (n. 21 above) and Kyrgyz Mobil (n. 22 above) have shown is that the claimant must establish the risk of injustice (in the sense of the absence of a fair hearing) at a specific level. It is not enough to prove that there is a general risk of corruption, incompetence or irrational decisions in the foreign forum.

157 Israeli Class Action Law 5766-2006. More generally, the system is modelled on the English system: see N. Bentwich, ‘The Legal System of Israel’ (1964) 13(1) International and Comparative Law Quarterly, pp. 236–55, at 236 (‘It is the English habit to leave as a permanent legacy of British rule her system of law’).

158 Hunter v. Canary Wharf [1997] AC 655, 692.

159 Exequatur is a private international law concept used in civil law systems referring to the decision of a court authorizing the enforcement of a foreign judgment.

160 As above, the declaration of enforceability authorizes the enforcement of a foreign judgment within the court’s jurisdiction.

161 It may also be one of the factors taken into account by the court as a potential advantage to one of the parties when exercising its discretion under the Spiliada rules: see International Credit and Investment Company Overseas Ltd v. Shaikh Kamal Adham (1999) International Litigation Procedure, p. 302 (CA).

162 CPR r. 74.12 and PD 74A supporting Pt 74.

163 CPR r. 74.13.

164 The enforcement of judgments under the Brussels I Recast Regulation (n. 16 above) has been streamlined further in the latest review of the Brussels regime. A decision of a court of a Member State will be (almost) automatically enforced in the territory of any other Member State.

165 The Administration of Justice Act 1920 applies to Malaysia, New Zealand, Nigeria and Singapore while the Foreign Judgments (Reciprocal Enforcement) Act 1933 applies to judgments from Australia, Canada, Guernsey, India, the Isle of Man (UK), Israel, Jersey, and Pakistan.

166 The common law establishes that the English court will recognise a final and conclusive judgment of a court with ‘international jurisdiction’. This jurisdiction is ‘jurisdiction in the eyes of the English court’; it is not enough that the foreign court had jurisdiction according to its own rules, as Lord Ellenborough stated in Buchanan v. Rucker (1808) 9 East. 192.

167 Buchanan, ibid, p. 194.

168 For an explanation of the intention behind the order and potential enforcement consequences of the decision of the Court of Appeal see Briggs, A., ‘Enforcing and Reinforcing an English Judgment’ (2008) 4 Lloyds Maritime and Commercial Law Quarterly, pp. 421–427 Google Scholar.

169 Masri v. Consolidated Contractors International Company SAL and Ors [2009] UKHL 43.

170 Stephens, B. et al. (eds), International Human Rights Litigation in the U.S. Courts (Brill, 2008)Google Scholar; Lillich, R.B., ‘Damages for Gross Violations of International Human Rights Law’ (1993) 15 Human Rights Quarterly, pp. 207–229 Google Scholar, at 208.

171 Often, because of practical reasons, such as lack of funds within the jurisdiction and the difficulties of enforcement of the decision abroad – factors that were not known to the claimants at the time of starting the action.

172 Terry, J., ‘Taking Filartiga on the Road’, in C. Scott (ed.), Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Hart, 2001), pp. 109–134 Google Scholar, at 112.

173 See, in this respect Meeran, n. 116 above, p. 23.

174 Baxi, U. (ed.), Inconvenient Forum and Convenient Catastrophe: The Bhopal Case (The Indian Law Institute, 1985)Google Scholar.

175 In re Union Carbide Corp Gas Plant Disaster, 634 F. Supp. 842 (S.D.N.Y., 1986); Connelly, n. 18 above; Lubbe, n. 19 above.

176 Robertson, D.W. & Speck, P.K., ‘Access to State Courts in Transnational Personal Injury Cases: Forum Non Conveniens and Antisuit Injunctions’ (1990) 68 Texas Law Review, pp. 937–961 Google Scholar, at 938 (‘Although courts and commentators routinely discuss forum non conveniens as if the issue at stake were a choice between two competing jurisdictions, in fact, the usual choice is between litigating in the United States or not at all’).

177 Ibid.

178 Trail Smelter Case (United States/Canada) 3 RIAA 1905 (1941).

179 Wirth, J.D., ‘The Trail Smelter Dispute: Canadians and Americans Control Transboundary Pollution, 1927–1941 (1996) 1(2) Environmental History, pp. 34–51 CrossRefGoogle Scholar, at 36 (‘the fact that Trail became a foreign policy issue between two sovereign states … brought new actors to the scene, and changed the role of others’). Overall the pollution victims received less compensation than they had claimed privately, while the factories invested in only moderately clean technologies, rather than the more expensive cleaner alternatives (p. 47). For further criticisms, see Kerkhof, M. van der, ‘The Trail Smelter Case Re-examined: Examining the Development of National Procedural Mechanisms to Resolve a Trail Smelter Type Dispute’ (2011) 27(73) Utrecht Journal of International and European Law, pp. 68–83 Google Scholar.

180 Wirth, ibid., pp. 39–40.

181 McGillivray, D. & Wightman, J., ‘Private Rights, Public Interest and the Environment’, in T. Hayward & J. O’Neill (eds), Justice, Property and the Environment: Social and Legal Perspectives (Ashgate, 1997), pp. 146–160 Google Scholar.

182 Meeran, n. 116 above, p. 3.