Retrieved from April 14, 2020 the Amsterdam Court of Appeal ruled on appeal in the proceedings concerning the 2006 Ivory Coast toxic disaster between Stichting Victimes des Déchets Toxiques Côte d'Ivoire and Trafigura.
The court considered the formal arguments raised by Trafigura. These arguments by Trafigura were intended to prevent a ruling by the Dutch court on its liability to the victims of the toxic disaster. The court ruled that Trafigura does have to answer to the Dutch court for dumping the Probo Koala waste materials in Abidjan.
Efirst construction
In the preliminary subpoena, the Foundation claimed that oil trader Trafigura had acted unlawfully towards those who suffered (health) damage through contact with the toxic waste materials. These wastes were exported from Amsterdam to Abidjan, Ivory Coast, in 2006 on the Probo Koala - a ship chartered by Trafigura - and dumped at various locations in the city.
With the judgment of the court on April 18, 2018, the Foundation's proceedings suffered an initial setback for procedural reasons.
Appeal
A large number of objections (“grievances”) to that judgment of the District Court were raised by the Foundation on appeal, all of which were successful. The grievances formulated by Trafigura all fail.
In the judgment, the court considered, inter alia, that the Dutch courts had jurisdiction to hear the Stichting's claims, both against Trafigura Beheer B.V. and Trafigura Limited (§3.6-3.15).
The court further finds that Ivorian substantive law does not preclude the requested remedy under Dutch formal law (§3.16-3.18).
According to the court of appeal, there is also similarity of interests of the Foundation's supporters within the meaning of Article 3:305a paragraph 1 (old) of the Dutch Civil Code (§3.19-3.26). It is relevant here that the court of appeal considered that it is sufficient that “the interests involved lend themselves to bundling so that efficient and effective legal protection can be promoted” (§3.24). It is also relevant that the court of appeal overruled Trafigura's contentions with respect to the petition amended at first instance at oral argument, giving reasons (§3.20-3.23).
The guarantee requirement of Article 3:305a paragraph 2 last sentence (old) of the Civil Code (§3.27-3.43) is also met, according to the court of appeal. It is of importance here that:
- the court does not find the funding arrangement impermissible (§3.28);
- the Foundation with the members of the Board and the Supervisory Board has sufficient “knowledge, experience and skill” (§3.32);
- it cannot be assumed that the Foundation's records would be defective, as the court also concluded earlier (§3.33);
- the Foundation's bylaws meet the requirements of the 2011 Claims Code (§3.33) where “the ultimate determinant is whether the facts and circumstances of the case, considered together and in context, are sufficient to justify a finding that the guarantee requirement has been met” (§3.42);
- plausible that “a (sufficiently large) group of persons [...] claims to have suffered damages that have not yet been (fully) compensated" (§3.33);
- the Foundation has reduced to an acceptable level the risk that any compensation may not benefit individual victims (§3.34-3.37 as well as §3.41);
- individual victims may also benefit from the proper outcome of these proceedings “without (otherwise) using the Foundation's efforts” (§3.38-3.39).
Continued
On July 11, 2020, Trafigura notified the Foundation to appeal to the Supreme Court against the April 14, 2020 judgment favorable to the Foundation. This means that the proceedings will not be continued at the Amsterdam District Court and Court of Appeal, but the Supreme Court. This decision by Trafigura is disappointing because proceedings at the Supreme Court will take (much) more than a year. The Supreme Court will decide whether the judgment of the Amsterdam Court of Appeal can be upheld. Only after the Supreme Court has ruled in favor of the Foundation will Trafigura have to answer to the Dutch courts for dumping the Probo Koala waste in Abidjan.
For questions about this case, please contact Christa Wijnakker or Bojan Dekker. More information can also be found through the website of the Foundation.