Jurisdictional issues in the Ogoni case

Abstract

The article analyzes the Ogoni case, which combines several high-profile lawsuits in the courts of Nigeria, the United States, theNetherlands, the United Kingdom, the African Commission on Human Rights, and the Court of Justice of the Economic Communityof West Africa. Practical issues related to the jurisdiction of states are covered, namely, extraterritorial jurisdiction, universal jurisdictionin civil matters, ‘piercing the corporate veil’, ‘forum shopping’, doctrines ‘forum non conveniens’, ‘forum necessitatis’, etc. The Ogonicase demonstrated the diversity and complexity of jurisdictional issues at the national and international levels. Although in terms ofjurisdiction the courts of Nigeria were the most appropriate forum to bring an action in this case, due to the inefficiency of the Nigerianjudicial system, the plaintiffs appealed to other jurisdictions. The Wiwa and Kiobel cases before the US courts can be considered asexamples of an attempt, albeit unsuccessful, to implement the extraterritorial application of US national law and to apply the principleof universal jurisdiction in civil tort cases. US courts have denied the plaintiffs’ claims under the ‘forum non conveniens’ doctrine andrefused to apply extraterritorially the American tort law to corporations located and registered in other states. In the Akpan case, theDistrict Court of the Netherlands refused to ‘pierce the corporate veil’, but the Court of Appeal ruled that it had jurisdiction to hear thacase concerning both Shell and the Nigerian subsidiary. In the Kiobel case, which is also before the courts of the Netherlands, an alternativebasis for jurisdiction was used – ‘forum necessitatis’. In the Okpabi case, the British courts have so far refused to recognize theirjurisdiction. It should be noted that the Wiwa and Kiobel cases concern the liability of Shell and SPDC for human rights violations,while the Akpan and Okpabi cases concern the civil liability for environmental damage. The above proceedings in national and internationalcourts are a clear example of ‘forum shopping’. The case was considered by the African Commission on Human Rights, whichrecognized its jurisdiction despite the absence of domestic remedies exhaustion, and by the West African Economic Community Court,which recognized its jurisdiction to hear the case under the African Charter as well as international covenants on human rights.