Foreign cases, competent courts
Libyan civil servants were involved in torturing a Palestinian doctor in Libya. They were held liable by a Dutch court. A European company was allegedly involved in human rights abuses in Nigeria. Is an American court competent to assess its liability?
On 28 March it was announced by the BBC Middle East news that a Dutch court had awarded one million euros to doctor Ashraf al-Hajui, at the cost of twelve Libyan civil servants. Indeed, a week earlier the district court of The Hague held the civil servants liable. The doctor was imprisoned in Libya for eight years. The civil servants were allegedly involved in the torture and inhumane treatment of doctor Al-Hajui during his imprisonment.
It is a remarkable decision, because the Dutch court considered itself competent to hear the case, although the case itself was not linked to the Netherlands. The court did not justify its decision at great length. According to article 9 section c of the Dutch Civil Procedure Act it is competent to hear a case, if the case is sufficiently linked to the Dutch legal sphere and if it would be unacceptable to require a plaintiff to turn to a judicial authority of another state. The court did not reflect on the link to the Dutch legal sphere, apparently because the plaintiff was residing in the Netherlands at the time of the procedure. Furthermore it merely referred to the situation in Libya at the time the case was introduced, 27 July 2011, ‘as described by the plaintiff’. The statement of doctor Al-Hajui was not disputed by the civil servants, because of the mere fact that they did not appear in court at all. His arguments on the Libyan judicial authorities were considered ‘not unlawful’ and ‘not without cause’.
What kind of cases are dealt with under article 9 section c? lt is supposed to apply in exceptional cases only. The few cases we know have to do with war or other political or humanitarian reasons. Once a family fled from Uruguay to Argentina for political reasons. To no avail, for in Argentina the father disappeared. The woman and her daughter fled to the Netherlands. According to the Supreme Court of the Netherlands, Dutch courts are competent to hear the woman’s request to declare her husband ‘probably dead’, at a time that due process was not guaranteed by the Argentinian or the Uruguayan judicial system.
For one more reason it is a remarkable decision. Last February the British and Dutch governments submitted a brief as Amici Curiae, in the Supreme Court of the United States-case of Kiobel vs Shell. The case is about Shell’s alleged complicity in serious human rights abuses in Nigeria. The governments wrote in support of Shell, because inter alia they are opposed to overly broad assertions of extraterritorial civil jurisdiction arising out of aliens’ claims against foreign defendants for alleged activities in foreign jurisdictions that caused injury.
Should American courts refrain from doing what Dutch courts do? Of course one has to look for similarities and differences in the Libyan and Nigerian cases carefully. Twelve civil servants residing – I assume – outside the Netherlands on the one hand, one multinational organization with bright red and yellow service stations in the United States on the other hand, for example. I am not confident that these differences will justify that Dutch courts are allowed to do what – according to the Dutch and British governments – is considered improper for American courts.