MASS FOREIGN DIRECT LIABILITY CLAIMS IN THE NETHERLANDS
Based on the 18th century Alien Tort Statute (ATS), a foreign direct liability practice emerged in the mid-nineties of the last century in the US. The ATS allowed foreigners to address American federal courts for compensation of damages suffered as a consequence of violations of international law that occurred anywhere around the globe. In the slipstream of this development, foreign direct liability cases were also launched in other jurisdictions, including the Netherlands. In April 2013, however, the US Supreme Court ruled that the ATS lacks extraterritorial effect. In this light, it is anticipated that many claimants will look outside of the US. Dutch courts can be expected to be involved in a fair share of this international work, due to the various characteristics of the Dutch legal society, discussed in this article.
Numerous international corporations have Dutch holding companies for various reasons. Following the actor sequitur forum rei principle, such Dutch holding companies can be summoned by any claimant before the Dutch court of residence. Such Dutch holding companies may also serve as ‘anchor defendants’ in order to bring a group company located outside the Netherlands before the Dutch courts. This competence is set out in the Dutch Code of Civil Procedure (DCCP), EU Regulation 1215/2012 and has been assumed in case law. Claims against each of the defendants should be so closely connected that it is expedient to consider and determine these claims jointly. A landmark case in which jurisdiction was assumed to hear a case against a foreign entity through a Dutch holding company as anchor defendant, is the 30 January 2013 decision of The Hague District Court in a case initiated by Friday Akpan and Vereniging Milieudefensie against Royal Dutch Shell PLC, located in The Hague, and Shell Petroleum Development Company of Nigeria Ltd, with residence in Port Harcourt, Nigeria.
Oct-Dec 2015 issue