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Corporate Human Rights Violations: #e
Feasibility of Civil Recourse in the Netherlands
Nicola M.C.P. Jagers
Marie-Jose van der Heijden
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CORPORATE HUMAN RIGHTS
VIOLATIONS: THE FEASIBILITY OF CIVIL
RECOURSE IN THE NETHERLANDS
Nicola M.C.P. Jägers & Marie-José van der Heijden
*
I
NTRODUCTION
n August 2006, the oil and cargo ship Probo Koala set sail for the
west coast of Africa. Its cargo consisted of, inter alia, a toxic brew of
cleaning chemicals, gasoline, and crude oil slop. Under the cover of night
on August 19, 2006, the deadly cargo of the Probo Koala was dispersed
onto the streets of Abidjan, the capital of the Ivory Coast, in fourteen
locations around the city—near vegetable fields, fisheries, and water res-
ervoirs.
1
This resulted in a major environmental disaster and serious hu-
man suffering; it is estimated that a dozen people died and over 9000 fell
ill.
2
Before sailing to the Ivory Coast, the Proba Koala had called at ports in
Europe, including the port of Amsterdam in the Netherlands. There,
Dutch authorities halted the unloading of the waste and suggested that
the waste be disposed of at special facilities in Rotterdam for approxi-
mately US$250,000. For executives at Trafigura Beheer B.V.
(“Trafigura”)—a multinational oil trading company domiciled in the
Netherlands with annual sales of US$28 billion, which had chartered the
Probo Koala—the disposal cost was too high.
3
They decided instead to
send the ship on its way and to dump the waste elsewhere: Africa.
* Dr. Nicola Jägers and Marie-José van der Heijden, LL.M., M.Phil., work as senior
lecturer/researcher and Ph.D.-candidate, respectively, at the Centre for Transboundary
Legal Development, Tilburg University, the Netherlands. This Article is partly based on a
report written for the Norwegian research institute Fafo. See A
NITA RAMASASTRY &
ROBERT C. THOMPSON, COMMERCE, CRIME AND CONFLICT: LEGAL REMEDIES FOR PRIVATE
SECTOR LIABILITY FOR GRAVE BREACHES OF INTERNATIONAL LAW: A SURVEY OF SIXTEEN
COUNTRIES (2006), available at http://www.fafo.no/pub/rapp/536/536.pdf.
1. The toxic sludge was removed from the ship and dumped by the Ivorian waste
handler Societé Tommy. Greenpeace News, Toxic Waste in Abidjan: Greenpeace
Evaluation, Sept. 15, 2006, http://www.greenpeace.org/international/news/ivory-coast-
toxic-dumping/toxic-waste-in-abidjan-green [hereinafter Greenpeace Evaluation].
2. Sebastian Knauer, Thilo Thielke & Gerald Traufetter, Profits for Europe, Indus-
trial Slop for Africa, S
PIEGEL ONLINE INT’L, Sept. 18, 2006, http://www.spiegel.de/
international/spiegel/0,1518,437842,00.html. Victims have been treated for respiratory
problems, nausea, dizziness, vomiting, and burns. Greenpeace Evaluation, supra note 1.
The waste was eventually cleaned up by a French company. Ivory Coast Begins Toxic
Clean-up, BBC
NEWS, Sept. 17, 2006, http://news.bbc.co.uk/2/hi/africa/5354530.stm.
3. Trafigura is incorporated under Dutch law and is consequently domiciled in the
Netherlands. Its headquarters are in Lucerne, Switzerland, while its operational center is
I
834 BROOK. J. INT’L L. [Vol. 33:3
The case of the Probo Koala is sadly only part of a growing trend
known as toxic waste colonialism, in which underdeveloped states are
used as inexpensive disposal sites for waste turned away by developed
states. The resulting harm frequently amounts to serious human rights
violations. In the case of the Probo Koala, the right to health and the right
to life were seriously threatened. As a result, Trafigura, the corporation
that chartered the vessel, has been the subject of numerous investiga-
tions.
4
Currently, its British subsidiary, Trafigura Ltd., is facing charges
of negligence before the High Court in London, where Trafigura’s opera-
tional center is located.
5
However, beyond the case pending in London,
Trafigura’s incorporation in the Netherlands raises the interesting ques-
tion of what possibilities Dutch law offers to address such extra-
territorial human rights violations by a corporation. This Article will ex-
plore these possibilities from a civil law perspective.
The example of Trafigura illustrates one of many ways in which corpo-
rations can be either directly responsible for or contribute significantly to
serious human rights violations. Increasingly, the impact (both negative
and positive) that corporations have on human rights is being acknowl-
edged. More importantly, the urge to hold corporations accountable for
their grave human rights violations is strengthening.
located in London, United Kingdom. See THE BERNE DECLARATION, NOMINATION FOR
THE
PUBLIC EYE GLOBAL AWARD 2007: TRAFIGURA BEHEER B.V. 1–2 (2007),
http://www.evb.ch/cm_data/Trafigura_e.pdf [hereinafter T
RAFIGURA BACKGROUND].
4. The Dutch public prosecutor planned in February 2008 to file criminal charges
against Trafigura and the Amsterdam City Council for their conduct in connection with
the Probo Koala. Foo Yun Chee & Charles Dick, Dutch Plan to Charge Trafigura Over
Toxic Ship, R
EUTERS, Feb. 19, 2008, http://www.reuters.com/article/latestCrisis/
idUSL19884993. In the Ivory Coast, three Trafigura employees were arrested in connec-
tion with the incident. Toby Sterling, Dutch Trafigura Settles Toxic Waste Case, W
ASH.
POST, Feb. 16, 2007, available at http://www.washingtonpost.com/wp-dyn/content/
article/2007/02/16/AR2007021600707.html. In February 2007, Trafigura settled the case
with the Ivory Coast by paying 152 million euros; however, an investigation conducted
by the United Nations (“U.N.”) Environmental Programme is still pending. Trafigura
Agrees Probo Koala Payout, D
UTCHNEWS.NL, Feb. 14, 2007, http://www.dutch
news.nl/news/archives/2007/02/trafigura_agrees_probo_koala_p.php; Press Release,
U.N. Environment Programme, Donor Assistance Critical to Cote D’Ivoire Clean-up
Efforts (Dec. 20, 2006), http://www.unep.org/Documents.Multilingual/Default.asp?
DocumentID=496&ArticleID=5456&l=en.
5. Trafigura has faced serious allegations before. In May 2006, a Texas court or-
dered the company to pay penalties and repay profits of close to US$20 million for vio-
lating U.S. laws and the embargo provisions of the “Oil for Food” program in Iraq.
Knauer et al., supra note 2; Press Release, U.S. Attorney’s Office, Southern District of
Texas, Swiss Corporation Convicted in “Oil for Food” Case (May 25, 2006), available at
http://www.forensicrisk.com/060525-Trafigura.pdf.
2008] CIVIL RECOURSE IN THE NETHERLANDS 835
Traditionally, international law has exclusively addressed states. Nev-
ertheless, it is increasingly recognized that non-state entities, such as in-
dividuals, also have rights and duties under international law. Holding
corporations accountable for violations of international law, therefore,
does not pose a problem conceptually. This can be deduced, inter alia,
from the number of international conventions that explicitly create obli-
gations for companies in specific areas.
6
Notwithstanding the growing
awareness of corporate entities’ major involvement in international hu-
man rights violations, there is no mechanism at the international level to
hold such entities accountable.
As a result, the tendency has been to turn to domestic remedies.
7
This
is not unusual since, generally, domestic legal systems are crucial to the
enforcement of international human rights norms. In the burgeoning
quest for international corporate accountability for violations of interna-
tional human rights law, attention to the possibilities offered by domestic
courts is rising as multinational corporations are confronted with liability
claims in their home countries for violations committed abroad. From the
perspective of the victims of such violations, the ability to bring a claim
in their home countries offers the distinct advantage that they do not have
6. See, e.g., International Convention on the Suppression and Punishment of the
Crime of Apartheid art. I, Nov. 30, 1973, 1015 U.N.T.S. 243; Basel Convention on the
Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22,
1989, 28 I.L.M. 649 (1989); United Nations Convention Against Transnational Organ-
ized Crime art. 6(5), opened for signature Dec. 13, 2000, S.
TREATY DOC. NO. 108-16
(2004), 2225 U.N.T.S. 275. Furthermore, there are numerous international instruments of
a soft law character that address corporations directly. See, e.g., Tripartite Declaration of
Principles Concerning Multinational Enterprises and Social Policy, para. 6, Int’l Labour
Org., 204th Sess., Nov. 16, 1977, 17 I.L.M. 422 (1978); Organisation for Economic Co-
operation and Development, Guidelines for Multinational Enterprises, June 21, 1976, 15
I.L.M. 969 (1976); Human Rights Council, Report of the Special Representative of the
Secretary-General on the Issue of Human Rights and Transnational Corporations and
Other Business Enterprises, U.N. Doc. A/HRC/4/35 (Feb. 19, 2007) (prepared by John
Ruggie) (describing various soft law mechanisms). See also N
ICOLA M.C.P. JÄGERS,
C
ORPORATE HUMAN RIGHTS OBLIGATIONS: IN SEARCH OF ACCOUNTABILITY (2002) (ana-
lyzing the accountability of corporations for violations of international human rights law
from a conceptual point of view).
7. This is explicitly recognized by the U.N. Special Representative of the U.N. Sec-
retary General on Business and Human Rights John Ruggie in his 2007 report to the U.N.
Human Rights Council. Ruggie, supra note 6. This trend is also reflected in the survey
conducted by the Norwegian research center Fafo, which maps the various ways of hold-
ing corporations accountable for international crimes in sixteen different jurisdictions.
See A
NITA RAMASASTRY & ROBERT C. THOMPSON, COMMERCE, CRIME AND CONFLICT:
LEGAL REMEDIES FOR PRIVATE SECTOR LIABILITY FOR GRAVE BREACHES OF
INTERNATIONAL LAW: A SURVEY OF SIXTEEN COUNTRIES (2006), available at
http://www.fafo.no/pub/rapp/536/536.pdf.
836 BROOK. J. INT’L L. [Vol. 33:3
to rely on the legal remedies available in the countries where the corpora-
tions operate—such remedies often being non-existent or difficult to ac-
quire.
This Article focuses on tort law as an avenue to address corporate vio-
lations of international law. Tort law can be employed for several rea-
sons. Tort law can serve a preventive function by discouraging certain
unlawful behavior. In this sense, tort liability may act as a regulatory
mechanism. Additionally, tort law offers redress for injuries suffered and
therefore also serves a compensatory function. It is especially this latter
characteristic of tort law that makes it an important tool of human rights
enforcement from the perspective of victims of human rights violations.
Research in the area of tort law as a tool for enforcing human rights
has so far concentrated mainly on the United States. This is hardly sur-
prising given the eye-catching developments that have arisen under the
Alien Tort Claims Act (“ATCA”).
8
Litigation under the ATCA is unique
in the sense that it constitutes a category of truly international tort cases.
In ATCA litigation, international law is incorporated to define the sub-
stance of the tort and to determine the actor who is liable to suit. Indi-
viduals and corporations, irrespective of their location, are being held
responsible in the United States for violations of international law that
occurred elsewhere.
9
However, as Professor Beth Stephens has com-
mented, because of its unique character, the ATCA cannot easily be
translated to other jurisdictions.
10
Moreover, outside the United States,
domestic remedies for violations of international law are more often
sought in the realm of criminal law rather than civil law.
11
Nevertheless,
developments in civil litigation before other domestic courts reflect the
same international law concerns as the human rights litigation in the
United States. For example, a number of high-profile cases in which par-
ent companies have been held responsible in the United Kingdom for
8. Alien Tort Claims Act, 28 U.S.C. § 1350 (1994) (providing that “[t]he district
courts shall have original jurisdiction of any civil action by an alien for a tort only, com-
mitted in violation of the law of nations”).
9. See, e.g., Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005); Tachiona
v. Mugabe, 234 F. Supp. 2d 401 (S.D.N.Y. 2002); In re Estate of Marcos Human Rights
Litigation, 910 F. Supp. 1460 (D. Haw. 1995).
10. Beth Stephens, Translating Filártiga: A Comparative and International Law
Analysis of Domestic Remedies For International Human Rights Violations, 27 Y
ALE J.
INT’L L. 3, 17–18, 27–34 (2002) (providing an overview of the common procedures in
different legal systems around the world that serve as obstacles to civil litigation for hu-
man rights abuses).
11. See infra Part IV for more on criminal law remedies.
2008] CIVIL RECOURSE IN THE NETHERLANDS 837
bodily harm inflicted on third parties in host countries
12
have generated a
fair amount of scholarly attention to civil law remedies in that jurisdic-
tion.
13
This case law differs from the ATCA litigation insofar as it ap-
plies domestic liability standards to actors headquartered in the country,
as opposed to the independent ATCA cases against non-resident defen-
dants for international human rights violations committed outside the
forum state.
This Article will not deal with the transnational human rights litigation
in the United Kingdom, but will instead focus on the feasibility of such
litigation in another European country: the Netherlands. Specifically of
interest is the use of Dutch tort law as a remedy for corporate human
rights abuses.
14
In the Netherlands, as is the case with corporations in many other
(home) countries, the activities of (Dutch) corporations abroad have been
subject to increased political attention. Dutch political interest in multi-
national corporations’ activities abroad is evidenced by the numerous
questions regarding such activities submitted to the Dutch Parliament
over the past few years. These questions have addressed, inter alia,
12. See, e.g., Lubbe v. Cape PLC, [2000] 4 All E.R. 268 (Eng. H.L.); Sithole v. Thor
Chem. Holdings Ltd., [1999] T.L.R. 110 (Eng. C.A.); Connelly v. RTZ Corp., [1997] 4
All E.R. 335 (Eng. H.L.); Ngcobo v. Thor Chem. Holdings Ltd., [1995] T.L.R. 10 (Eng.
C.A.).
13. See generally Richard Meeran, The Unveiling of Transnational Corporations: A
Direct Approach, in H
UMAN RIGHTS STANDARDS AND THE RESPONSIBILITY OF
TRANSNATIONAL CORPORATIONS 161–70 (Michael Addo ed., 1999); Richard Meeran,
Liability of Multinational Corporations: A Critical Stage in the UK, in L
IABILITY OF
MULTINATIONAL CORPORATIONS UNDER INTERNATIONAL LAW 251 (Menno T. Kamminga
& Saman Zia-Zarifi eds., 2000).
14. The Dutch legal system may also provide avenues other than tort law, but given
the limited space, these will not be discussed here. See, e.g., Marie-José van der Heijden
& Katinka Jesse, Corporate Environmental Accountability as a Means for Intragenera-
tional Equity: ‘Hidden’ Environmental Impacts in the North-South Conflict, in
S
USTAINABLE DEVELOPMENT IN INTERNATIONAL AND NATIONAL LAW 348, 349–74 (Hans
Christian Bugge & Christina Voigt eds., 2008). Van der Heijden and Jesse suggest that
the so-called enquete-recht (right of investigation) of the Ondernemingskamer (Dutch
Companies and Business Court) may be such an avenue. See generally id. This Dutch
legal doctrine is comparable in some ways to the business judgment rule in U.S. corpo-
rate law. Shareholders and other stakeholders can file a complaint, after which the Dutch
Companies and Business Court may decide to examine the corporate conduct, i.e., the
management and its decisions. The enquete-recht can also be used as a disclosure mecha-
nism. So far, no case on corporate violations of human rights abroad has been filed under
this mechanism. The whole range of possible legal remedies will be extensively analyzed
in van der Heijden’s forthcoming dissertation.
838 BROOK. J. INT’L L. [Vol. 33:3
Unilever’s involvement in child labor practices in India
15
and Shell’s ac-
tivities in Nigeria.
16
The aforementioned incident involving Trafigura,
and the illegal dumping of the waste carried by the Probo Koala in par-
ticular, led to political commotion during a special parliamentary debate
in September 2006.
17
However, scholarly attention to the specific subject
of corporate liability in the Netherlands for international human rights
violations has remained relatively scarce.
18
One explanation might be
that, to date, such claims have not been filed in the Dutch courts against
(parent) companies. The Netherlands has no equivalent to the ATCA.
The question this Article seeks to answer is if and how Dutch tort law
provides possibilities for transnational human rights litigation. By ana-
lyzing the Dutch legal system, this Article seeks to survey the possibili-
ties this system might offer to human rights plaintiffs and litigators and
to explore why claims of human rights violations under tort law still have
not been brought before the Dutch courts. As part of this analysis, an ex-
amination of European law more generally is also required, since a sur-
vey of the Dutch legal system on its own is incomplete given the far-
reaching harmonization of civil procedures at the European level.
This Article will demonstrate that in light of the increased attention to
international civil liability claims and the characteristics of the Dutch
civil system, a Dutch corporation will likely be faced with a claim con-
cerning alleged human rights violations in the (near) future. In the 1990s,
this seemed likely when Ken Saro-Wiwa and other leaders of the Ogoni
15. Tweede Kamer der Staten-Generaal [TK] [Dutch House of Representatives]
2003–2004, Aanhangsel van de handelingen [Addendum to the Agenda: Questions Asked
by Members of Parliament with Subsequent Answers by Members of the Cabinet], nos.
1453 & 1476, submitted 12 mei 2003.
16. TK 2003–2004, Aanhangsel van de handelingen [Addendum to the Agenda:
Questions Asked by Members of Parliament with Subsequent Answers by Members of
the Cabinet], no. 2237, submitted 17 juni 2004.
17. See TK 2006–2007, Brief van de Staatssecretaris van volkshuisvesting, ruimteli-
jke ordening en milieubeheer [Letter from the State Secretary on Environmental Man-
agement], no. 143, submitted 31 oktober 2006.
18. But see L.
ENNEKING, CORPORATE SOCIAL RESPONSIBILITY: TOT AAN DE GRENS EN
NIET VERDER
? [CORPORATE SOCIAL RESPONSIBILITY: NOT BEYOND THE BORDER?] (2007);
Gerrit Betlem, Transnational Litigation Against Multinational Corporations Before
Dutch Civil Courts, in LIABILITY OF MULTINATIONAL CORPORATIONS UNDER
INTERNATIONAL LAW 283–305 (Menno T. Kamminga & Saman Zia-Zarifi eds., 2000);
M.L. Lennarts, Multinationals en Asbestclaims: Over Forum Non Conveniens,
Zorgplichten, ‘double standards’ en ‘soft law’ [Multinationals and Asbestos Claims: On
Forum Non Conveniens, Caretaking, ‘Double Standards’ and ‘Soft Law’], in LT
VERZAMELDE ‘GRONINGER’ OPSTELLEN AANGEBODEN AAN VINO TIMMERMAN [LT COLLECTED
‘GRONINGER’ DRAFTING OFFERED TO VINO TIMMERMAN] 177–89 (E.E.G. Gepken-Jager &
J.N. Schutte-Veenstra eds., 2003).
2008] CIVIL RECOURSE IN THE NETHERLANDS 839
people challenged the business and environmental practices of various
multinational corporations in Nigeria, particularly that of Shell Nigeria.
These Ogoni leaders were eventually executed in 1995 by the Nigerian
military government after a sham trial.
19
In 1996, the first of a series of
cases was filed under the ATCA by the decedents’ relatives against the
Dutch/British parent company, The Royal Dutch/Shell, for its involve-
ment in gross human rights abuses in Nigeria.
20
The plaintiffs alleged
that Shell Nigeria was complicit in the execution of the Ogoni leaders.
The Southern District Court of New York dismissed the case on forum
non conveniens grounds, therefore raising the possibility that the case
would be brought before a court in the parent company’s home coun-
try—the Netherlands (its place of incorporation) or England (its corpo-
rate headquarters). The possibility of litigating in the Netherlands was,
however, not fully explored, as the district court held that the case should
be dismissed and tried in England. In 2000, the case was reversed on ap-
peal and the U.S. Court of Appeals for the Second Circuit decided that
“in balancing the interests, the district court did not accord proper sig-
nificance to a choice of forum by lawful U.S. resident plaintiffs or to the
policy interest implicit in our federal statutory law in providing a forum
for adjudication of claims of violations of the law of nations.”
21
The case
therefore proceeded in the United States, foreclosing any need for an al-
ternative forum, either in the United Kingdom or in the Netherlands.
This Article will show that as a result of certain features of Dutch tort
law, the Dutch legal system is not as litigation-friendly as that of the
United States. Nevertheless, there are several reasons why it is relevant
to analyze the possibilities for civil litigation in the Netherlands. The
Netherlands is the home country to a relatively large number of big mul-
tinational corporations such as Philips, Shell, and Heineken, to name a
few. It is argued that the Netherlands offers an attractive environment to
set up businesses, especially from a fiscal point of view, therefore draw-
ing many to establish corporations in its jurisdiction.
22
This abundance of
19. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 92–93 (2d Cir. 2000). For
more background on the Wiwa case, see Sigrun I. Skogly, Complexities in Human Rights
Protection: Actors and Rights Involved in the Ogoni Conflict in Nigeria, 15 N
ETH. Q.
HUM. RTS. 47 (1997).
20. Wiwa, supra note 19, at 92.
21. Id. at 99–100. This reading of the forum non conveniens doctrine has been con-
firmed by the United States Supreme Court, which decided on March 26, 2001 to deny
certiorari to an appeal by the defendants. Id.
22. See M
ICHIEL VAN DIJK ET AL., THE NETHERLANDS: A TAX HAVEN? 3 (2006),
available at http://www.somo.nl/html/paginas/pdf/netherlands_tax_haven_2006_NL.pdf
(concluding that the Netherlands is attractive to businesses because it is perceived to be
and functions as a tax haven).
840 BROOK. J. INT’L L. [Vol. 33:3
well-known corporations and the favorable business climate in the Neth-
erlands means that, should Dutch law provide an avenue for litigation, it
would offer a plaintiff enforceable remedies.
In light of the above, it is important to analyze the possible remedies
the Dutch legal system has to offer to victims of corporate human rights
violations. This is done by addressing the following issues. First, in Part
I, the consequences of the complex legal structures of multinational cor-
porations will be addressed. In Part II, this Article will examine the pro-
cedural issues that arise when analyzing the feasibility of transnational
human rights litigation. The first question one must ask is which court
may, or sometimes must, hear such a claim (Part II.A). Part II.B will ad-
dress the issue of the choice of law. Next, this Article will analyze sub-
stantive tort law in the Netherlands in an effort to address the general
question of how a court will deal with violations of public law norms in
the private sphere (Part II.C). The feasibility of transnational human
rights litigation in the Netherlands will not only depend on the issues
discussed in these sections but also on the general characteristics of
Dutch private law and legal culture, which will be discussed in Part III.
Given the general tendency towards using criminal prosecution in
Europe as a remedy for international human rights violations, this avenue
will be briefly explored in Part IV. The (dis)advantages of employing
criminal or civil remedies will be discussed in Part V, followed by the
conclusion.
Professor Stephens rightly states that “[a] full understanding of the var-
ied options available in differing legal systems is an essential foundation
for the worldwide drive for accountability and redress.”
23
It is hoped that
this Article will contribute to that effort.
I.
THE LEGAL STRUCTURE OF MULTINATIONAL CORPORATIONS
A preliminary issue that must be addressed before determining whether
a company can be sued under Dutch law for allegedly harmful activities
abroad concerns the difficulties posed by the often complex legal struc-
tures of multinational corporations. The most straightforward case is the
situation in which a multinational corporation becomes directly present
in a host country by establishing a branch in that country. To litigate
against that corporation will not present a problem, as the branch and the
multinational corporation can be considered parts of one corporate group
and a case can be brought under Dutch law against the parent company
based on the principle of active nationality.
24
23. Stephens, supra note 10, at 57.
24. See Burgerlijk Wetboek [BW] [Civil Code] art. 1:5 (Neth.).
2008] CIVIL RECOURSE IN THE NETHERLANDS 841
However, a more common situation is the one in which a corporation
creates a separate legal entity that operates under the laws of the host
country but is controlled by the parent company. The doctrine of limited
liability, meant to encourage individual entrepreneurship, has resulted in
corporations establishing complicated corporate structures consisting of
numerous legal entities with multiple layers of limited liability. A parent
company cannot simply be held liable for acts of legally separate sub-
sidiaries.
25
A more complicated situation that further limits a corpora-
tion’s liability results when a corporation enters into contractual relations
with partners present in another country. Such a corporation cannot be
liable for its foreign partners’ acts.
26
When discussing transnational human rights litigation, it is important
to have a clear picture of which legal mechanism is being applied to
overcome the potential obstacle of limited liability. Different mecha-
nisms can be discerned, each of which has different consequences in the
context of litigation.
27
In the Netherlands, suits for human rights violations cannot be brought
directly against a parent company’s legally separate subsidiaries and
partners operating abroad. Therefore, in order to bring a claim in the
Netherlands, the parent of the foreign subsidiary must be identified and
suit brought against this corporation either based on its direct participa-
tion in the alleged violations or based on a derivative responsibility for
these acts. In principle, the parent company will, however, be shielded
from accountability on the basis of the doctrine of limited liability.
Two legal mechanisms can be applied to overcome this hurdle. First, a
litigant may try to “pierce the corporate veil” by demonstrating that the
parent company should be liable for acts of the subsidiary because the
legal separation is not in accordance with reality or because the corporate
form has been abused by the parent company. To date, no claim has
come before the Dutch courts seeking the accountability of a Dutch par-
ent company for breaches of international human rights law in another
country. It is therefore difficult to draw any conclusions as to whether the
Dutch courts will pierce the corporate veil in such a case to find the par-
ent company liable. To determine how a Dutch court would approach
25. See BW art. 2:19 (Neth.).
26. See id. art. 2:20.
27. See O
LIVIER DE SCHUTTER, EXTRATERRITORIAL JURISDICTION AS A TOOL FOR
IMPROVING THE HUMAN RIGHTS ACCOUNTABILITY OF TRANSNATIONAL CORPORATIONS
(2006), available at http://www.reports-and-materials.org/Olivier-de-Schutter-report-for-
SRSG-re-extraterritorial-jurisdiction-Dec-2006.pdf (analyzing different situations in
which extraterritorial jurisdiction is exercised to hold transnational corporations account-
able for human rights violations).
842 BROOK. J. INT’L L. [Vol. 33:3
piercing the corporate veil in tort cases, we need to turn to the case law
concerning the accountability of a parent company for the debts of a sub-
sidiary. The prevailing view is that the parent company can be held ac-
countable for the debt of its subsidiary if: (1) the parent is the majority
shareholder of the subsidiary; (2) the parent company knew or should
have known that the creditors’ rights would be infringed;
28
(3) the in-
fringement is the result of an act of the parent company and/or it is a case
of a special parent-subsidiary relationship;
29
and, finally, (4) if the parent
company fails to take the creditors’ interests into consideration.
30
From
this case law, it can be concluded that profound (financial) involvement
of the parent company and knowledge of the infringement of rights is
required for the courts to allow the corporate veil to be pierced.
If and how these criteria will apply in the case of a claim concerning
extraterritorial corporate human rights violations will depend on the spe-
cific circumstances and is difficult to predict. Nevertheless, one can con-
clude that providing the evidence needed for piercing the corporate veil
will impose a considerable burden on the plaintiffs. Another conse-
quence, from the litigant’s perspective, is that the criteria for piercing the
corporate veil are not very clear-cut, especially not when it concerns a
case of human rights violations, which has not yet been brought before a
Dutch court. It may prove very difficult to establish the factual relation
required to pierce the corporate veil in such a case. Moreover, this
mechanism may act as a disincentive for parent companies to control
their subsidiaries as it is this factual relationship that can give rise to a
piercing of the corporate veil. The less a parent company is involved in
the politics and operations of its subsidiary, the less likely it is to be held
liable for any misconduct.
28. Such knowledge is presumed to be present if the financial policies are considera-
bly interwoven, the infringement of creditors’ rights can objectively be foreseen, and the
financial position of the subsidiary is precarious. Knowledge of the infringement is also
presumed if the parent company profits from this infringement while being closely in-
volved in the activities of the subsidiary.
29. This refers to a “profound involvement” of the parent company in the policies of
the subsidiary.
30. These criteria are drawn from the groundbreaking “piercing of the corporate veil”
cases. See Sobi/Hurks II, Hoge Raad der Nederlanden [HR] [Supreme Court of the Neth-
erlands], 21 december 2001, NJ 2005, 96 (Neth.); Coral/Stalt, Hoge Raad der Nederlan-
den [HR] [Supreme Court of the Netherlands], 12 juni 1998, NJ 1998, 727 (Neth.); Ni-
mox, Hoge Raad der Nederlanden [HR] [Supreme Court of the Netherlands], 8 november
1991, NJ 1992, 174 (Neth.); Albada Jelgerma II, Hoge Raad der Nederlanden [HR] [Su-
preme Court of the Netherlands], 19 februari 1988, NJ 1988, 487 (Neth.); Osby, Hoge
Raad der Nederlanden [HR] [Supreme Court of the Netherlands], 25 september 1981, NJ
1982, 443 (Neth.).
2008] CIVIL RECOURSE IN THE NETHERLANDS 843
A second mechanism that plaintiffs in transnational human rights liti-
gation may rely on is the direct liability of the parent for an act or omis-
sion by the parent in violation of its duty to exercise due diligence in the
relationship towards the subsidiary. This approach was used in the previ-
ously mentioned transnational human rights cases decided by the British
courts.
31
In this situation, acts or omissions of the parent company are
considered to be in violation of a domestic liability standard. This
mechanism has some advantages for transnational human rights litigation
as it will encourage rather than discourage more active involvement by
the parent company towards its subsidiaries. Subsequent sections of this
Article will consider this last legal mechanism when discussing the pos-
sibilities offered by Dutch civil law in cases of corporate breaches of in-
ternational law. This Article will introduce the general features of the
Dutch system of liability law in order to analyze the possibilities it offers
for plaintiffs to bring transnational human rights claims before the Dutch
courts. This Article will focus more on legal mechanisms that can be
used to hold corporations accountable for human rights violations and the
resulting procedural issues, and less on the content of the norms and the
extent of the obligations to which corporations should adhere.
32
II.
LITIGATING AGAINST CORPORATIONS FOR VIOLATIONS OF
INTERNATIONAL LAW IN THE DUTCH LEGAL SYSTEM
The transnational nature of human rights litigation under consideration
in this Article raises jurisdictional questions that are dealt with under the
rules of private international law. Before addressing the typical private
international law issues concerning the proper legal forum and choice of
law,
33
a preliminary remark is in order.
As will be demonstrated, the hard and fast rules of private international
law pose a potential obstacle for victims of corporate human rights viola-
tions who want to bring suit against a corporation. One may question the
appropriateness of a strict application of these rules of private interna-
tional law in the face of the most serious violations of fundamental
31. See supra note 12 and the authorities cited therein.
32. See J
ÄGERS, supra note 6 (analyzing the human rights obligations of corporations
under international human rights law).
33. Private international law typically also addresses a third issue: the execution of
judgments. In view of the fact that transnational human rights litigation remains relatively
scarce and that such a case has never been brought in the Netherlands, this issue will not
be addressed in this Article.
844 BROOK. J. INT’L L. [Vol. 33:3
norms of international law.
34
The unification of private international law,
necessary from the perspective of legal certainty, curbs judicial creativity
and demands self-restraint of domestic legislators and courts when exer-
cising their prescriptive and adjudicative powers. However, given the
dependence on domestic courts as the first line of defense in the en-
forcement of international human rights law, human rights advocates
claim that a certain flexibility for judicial activism is required to uphold
universal substantive standards. It is beyond this Article’s scope to dis-
cuss this tension between the distributive function of private international
law and the human rights claim of universal application.
35
However, an
argument can be made that some room should be allowed for national
courts to deal with universally condemned human rights violations.
A. Judicial Competence
When exploring the issue of whether a Dutch court has jurisdiction, we
cannot limit ourselves to Dutch law. A discussion of transnational tort
litigation in the Netherlands is incomplete without examining the broader
European perspective, given the partial harmonization of the requisites
for judicial competence in the European Union (“EU”). The relevant
European legislation harmonizing the rules on jurisdiction in the Euro-
pean Community so as to limit any potential conflict between national
courts of the various Member States is EC Regulation 44/2001 of De-
cember 22, 2000 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters.
36
This regulation consoli-
dates for most of the EU Member States the so-called Brussels Conven-
tion (1968).
37
In the Netherlands, EC Regulation 44/2001 was expressly
34. See Upendra Baxi, Geographies of Injustice: Human Rights at the Altar of Con-
venience, in TORTURE AS TORT: COMPARATIVE PERSPECTIVES ON THE DEVELOPMENT OF
TRANSNATIONAL HUMAN RIGHTS LITIGATION 197 (Craig Scott ed., 2001).
35. For more on this emerging conflict, see P.R. Dubinsky, Human Rights Law Meets
Private Law Harmonization: The Coming Conflict, 30 YALE J. INT’L L. 211 (2005).
36. Council Regulation 44/2001, 2001 O.J. (L 12) 1 [hereinafter EC Regulation
44/2001].
37. Convention on Jurisdiction and the Enforcement of Judgments in Civil and Com-
mercial Matters, Sept. 27, 1968, 1972 O.J. (L 299) 32 [hereinafter Brussels Convention].
The Brussels Convention (1968) applied to the members of the European Community.
Six additional countries, then forming the European Free Trade Association, were added
to the Brussels Convention vis-à-vis the Lugano Convention. Convention on Jurisdiction
and the Enforcement of Judgments in Civil and Commercial Matters, 1988 O.J. (L 319)
9. However, EC Regulation 44/2001 does not fully replace the Brussels Convention. The
latter’s provisions still remain in force in the relations between Denmark and the Euro-
pean Union (“EU”) Member States bound by EC Regulation 44/2001. This is due to the
EC Regulation’s general opt-out for Denmark in relation to measures adopted under Title
IV of the Treaty Establishing the European Community (“EC Treaty”). See EC Regula-
2008] CIVIL RECOURSE IN THE NETHERLANDS 845
adopted as a guideline for the recent revision of the Dutch Code of Civil
Procedure.
The jurisdictional rules under EC Regulation 44/2001 are mandatory
and deprive national courts of any discretion to be more generous in pro-
viding a forum. A national court cannot take cognizance of a claim that
falls within the reach of the regulation unless it can point to one of the
jurisdictional grounds provided by the regulation conferring on the court
the authority to do so.
At the time the Brussels Convention was drafted, the forum rei princi-
ple was recognized as the controlling jurisdictional principle in most
European countries. It remains so today, as evidenced by its codification
in EC Regulation 44/2001. Under article 2(1) of the regulation, “persons
domiciled in a Member State shall, whatever their nationality, be sued in
the courts of that Member State.”
38
What is to be understood as an indi-
vidual’s domicile is provided for in article 60(1), which states that “a
company or other legal person or association of natural or legal persons
is domiciled at the place where it has its (a) statutory seat, or (b) central
administration, or (c) principal place of business.”
39
This is a broad for-
mulation that allows for multiple fora. Similarly, under Dutch law, domi-
cile is interpreted as the place of incorporation (as opposed to the doc-
trine of the real seat).
40
In other words, regardless of the place of head-
quarters, if a corporation, pursuant to its articles of association, is incor-
porated under the laws of the Netherlands, it will be subject to the juris-
diction of Dutch courts. Despite such a broad formulation, a strict appli-
cation of the doctrine of incorporation opens the door to abuse. Corpora-
tions may avoid Dutch jurisdiction by establishing the corporation in a
tion 44/2001, supra note 36, art. 2(3) (“In this Regulation, the term ‘Member State’ shall
mean Member States with the exception of Denmark.”); EC Treaty, infra note 51, art. 69
(“The application of this Title shall be subject to . . . the Protocol on the position of Den-
mark . . . .”). The Brussels Convention also continues to apply to the territories of the
Member States that fall within the territorial scope of the Convention but are excluded
from EC Regulation 44/2001 pursuant to article 299 of the EC Treaty. See EC Regulation
44/2001, supra note 36, pmbl. para. 23 & art. 68; EC Treaty, infra note 51, art. 299.
Given the need for continuity, there are no textual dissimilarities between the Brussels
Convention and EC Regulation 44/2001. Additionally, European Court of Justice case
law remains relevant to the interpretation of EC Regulation 44/2001.
38. EC Regulation 44/2001, supra note 36, art. 2(1).
39. Id. art 60(1).
40. Wetboek van Strafvordering [S
V] [Code of Criminal Procedure] art. 2 (Neth.).
The principle of incorporation is also applied in the United Kingdom, Ireland, and Den-
mark. Most European states—inter alia, Germany, France, Belgium, Spain, Greece, Por-
tugal, and Luxembourg—acknowledge the doctrine of the real seat.
846 BROOK. J. INT’L L. [Vol. 33:3
state with lenient rules while they in fact operate elsewhere. Therefore,
certain modifications to the doctrine of incorporation have been made.
41
Besides the forum rei principle, EC Regulation 44/2001 provides two
additional grounds for jurisdiction (which should be considered as excep-
tions to the forum rei principle) that a plaintiff may wish to rely on in
certain circumstances. First, under article 5(3), “in matters relating to
tort, delict or quasi-delict” the plaintiff may sue “in the courts for the
place where the harmful event occurred or may occur.”
42
In the case of
corporate misconduct, it will not always be easy to establish the place
where the harmful event occurred. A distinction will often be made be-
tween the place where the actual act occurs (Handlungsort) and the place
where the harmful effect is felt (Erfolgsort). In cases of corporate mis-
conduct, the place where the harmful effect is felt will usually be clear.
However, establishing the Handlungsort can prove more difficult. It can
be argued that the Handlungsort is the place where the parent company is
seated, as this is where decisions were made that resulted in the harmful
effect abroad.
In the aforementioned case of Trafigura it is clear that the Ivory Coast
is the Erfolgsort, the place where the harm is felt. One could argue that
the Handlungsort is in Europe as this is the place where the corporation
Trafigura is incorporated and has its seat. Specifically, the United King-
dom would most likely be considered the Handlungsort, as London is
Trafigura’s operational center.
43
The European Court of Justice (“ECJ”)
has held that in such a situation, article 5(3) of EC Regulation 44/2001
must be understood to include both the place where the damage occurred
and the place of the event giving rise to such damage, so that the defen-
dant may be sued in the courts of either place at the option of the plain-
41. In clear cases of abuse, the “public policy” doctrine has been applied. See, e.g.,
Engelse Ltd., Rechtsbank Amsterdam [Rb.] [District Court of Amsterdam], 6 april 1982,
WPNR 1985, 5765 (Neth.). This can, however, only be relied on in cases where the for-
eign rules are in clear violation of fundamental norms and values of the Dutch legal or-
der. Therefore, the public policy doctrine as a remedy against abuse of the doctrine of
incorporation will only be relied on in exceptional circumstances. A compromise has
been found in the Wet op de Formeel Buitenlandse Vennootschappen [Act on Formally
Foreign Enterprises], 17 december 1997, Stb. 697 (entered into force Jan. 1, 1998). Ac-
cording to this law, if a corporation fits the definition of a “formally foreign enterprise”
as articulated in article 1, certain Dutch provisions will be applicable regardless of the
doctrine of incorporation. Id. The definition in article 1 refers to a corporation that al-
though having been established in another state, operates almost exclusively in the Neth-
erlands and therefore has no real connection to the country in which it was established.
See generally P.
VLAS, RECHTSPERSONEN [LEGAL ENTITIES] 5–44 (2002).
42. EC Regulation 44/2001, supra note 36, art. 5(3).
43. See TRAFIGURA BACKGROUND, supra note 3, at 2 (stating that London is
Trafigura’s operational center).
2008] CIVIL RECOURSE IN THE NETHERLANDS 847
tiff.
44
In some cases, a plaintiff might decide that it is more convenient to
sue in the country where the decision was made. The place of harmful
activity (forum deliciti) can thus provide an additional jurisdictional op-
tion.
Second, article 5(5) of EC Regulation 44/2001 states that “a person
domiciled in a Member State may, in another Member State, be sued . . .
as regards a dispute arising out of the operations
45
of a branch, agency or
other establishment, in the courts for the place in which the branch,
agency or other establishment is situated.”
46
In other words, the legal
entity constituting the corporation may be sued not only where its seat is
located but also in the place where a branch is situated. This provision is
only applicable to a branch of a corporation that is itself domiciled in the
EU; it therefore cannot be used with respect to a branch of a non-
European corporation. Article 5(5), however, does make available a sec-
ond special ground for jurisdiction in the Netherlands over a corporation:
tortious lack of supervision by a Dutch branch by a European parent cor-
poration.
It has been contended that these two additional grounds for jurisdiction
can, together, be seen as a European version of the ATCA.
47
According
to this interpretation, Members States’ courts are competent to hear tort
actions brought by victims, whatever their nationality, regarding the ac-
tivities of a multinational corporation domiciled in a Member State or
any of its branches. The action can be lodged either in the state where the
parent company is domiciled or, where a branch was the base of the act
that caused the damage, in the state where that branch is located. Such an
interpretation of EC Regulation 44/2001 provides the possibility of open-
ing European courts to lawsuits against corporations registered in the EU
for harm occurring in any third country throughout the world.
44. See, e.g., Case 21/76, Handelskwekerij Bier v. Mines de Potasse d’Alsace, 1976
E.C.R. I-1735; Case C-220/88, Dumez France v. Helaba, 1990 E.C.R. I-49; Case C-
68/93, Shevill v. Presse Alliance SA, 1995 E.C.R. I-415, ¶ 19; Case C-364/93, Marinari
v. Lloyds Bank PLC & Zubaidi Trading Co., 1995 E.C.R. I-2719, ¶ 10; Case C-51/97,
Réunion Européenne SA v. Spliethoff’s Bevrachtingskantoor, 1998 E.C.R. I-6511.
45. The ECJ has interpreted “operations” as referring, inter alia, to activities in which
the branch “has engaged at the place in which it is established on behalf of the parent
body.” Case 33/78, Somafer v. Saar-Ferngas, 1978 E.C.R. I-2183, I-2194. The ECJ has
further held that these “operations” need not be geographically limited to the State where
the Branch is situated. See Case C-439/93, Lloyd’s Register of Shipping v. Société
Campenon Bernard, 1995 E.C.R. I-961, ¶ 19.
46. EC Regulation 44/2001, supra note 36, art. 5(5).
47. See O
LIVIER DE SCHUTTER, THE ACCOUNTABILITY OF MULTINATIONALS FOR
HUMAN RIGHTS VIOLATIONS IN EUROPEAN LAW 33 (2004), available at
http://www.chrgj.org/publications/docs/wp/s04deschutter.pdf.
848 BROOK. J. INT’L L. [Vol. 33:3
At the EU level—which, relying heavily on the mechanisms of self-
regulation,
48
has overall been reluctant to impose overly strict require-
ments on corporations—the European Parliament has proven to be a sup-
porter of opening up the European courts in such a manner. In 1998, the
European Parliament called for a study of the feasibility of adopting a
“European ATCA.”
49
Prior to that, the European Parliament endorsed the
interpretation of EC Regulation 44/2001 as a European ATCA when it
adopted the resolution on “EU Standards for European Enterprises Oper-
ating in Developing Countries: Towards a European Code of Conduct”
on January 15, 1999.
50
In comparison to the ATCA, this interpretation of EC Regulation
44/2001 is wider in scope in the sense that the ATCA is only applicable
to aliens. The scope of the jurisdiction conferred upon European courts
by EC Regulation 44/2001 is not similarly limited. However, the EC
Regulation is more limited than the ATCA in that it applies only to cor-
porations registered or domiciled within the EU and it is purely adjudica-
tive and not prescriptive in nature. It is questionable whether the EU has
the authority to amend EC Regulation 44/2001 in order to make it truly a
European ATCA, as that would seem to go beyond the objectives of the
EU.
51
In sum, in order for a Dutch court to be competent to hear a case
against a corporation for human rights abuses committed abroad the de-
fendant corporation must be incorporated in the Netherlands. The Dutch
doctrine of incorporation provides a much stricter criterion than under
48. See id. at 58.
49. European Parliament, Committee on Development and Cooperation, Report on
EU Standards for European Enterprises Operating in Developing Countries: Towards a
European Code of Conduct, at 16, A4-0508/98 (Dec. 17, 1998) (prepared by Richard
Howitt) ( “A study could also be undertaken on drawing up a European version of the
American Tort Claims Act . . . .”).
50. Resolution on EU Standards for European Enterprises Operating in Developing
Countries: Towards a European Code of Conduct, E
UR. PARL. DOC. (A4-0508/98) (1999)
(emphasizing the EU’s dedication to corporate enterprises playing a role in social devel-
opment and human rights).
51. Article 65 of the EC Treaty provides that measures concerning cooperation in
civil matters may be taken when necessary for the internal market. Consolidated Version
of the Treaty Establishing the European Community art. 65, Dec. 24, 2002, 2002 O.J. (C
325) 33, 59 [hereinafter EC Treaty], available at http://eur-lex.europa.eu/en/treaties/
dat/12002E/pdf/12002E_EN.pdf. That condition would not seem to be met here. See J
AN
WOUTERS & LEEN DE SMET, CIVIELRECHTELIJKE SCHADECLAIMS TEGEN MULTINATIONALE
ONDERNEMINGEN WEGENS MENSENRECHTENSCHENDINGEN ELDERS IN DE WERELD: LESSEN
VAN DE
ALIEN TORT CLAIMS ACT [CIVIL LIABILITY CLAIMS AGAINST MULTINATIONAL
CORPORATIONS FOR HUMAN RIGHTS VIOLATIONS ELSEWHERE IN THE WORLD: LESSONS
FROM THE
ALIEN TORT CLAIMS ACT] (2003).
2008] CIVIL RECOURSE IN THE NETHERLANDS 849
the ATCA where jurisdiction can be asserted over individuals temporar-
ily present in the United States or over corporations doing business in the
country. In addition, the special fonts of jurisdiction under EC Regula-
tion 44/2001 (forum deliciti and the possibility to sue in the forum of a
branch of a European corporation) provide a means to bring suit against a
Dutch or otherwise European-based corporation for tortious lack of su-
pervision.
The plaintiff’s domicile in such a case is irrelevant. Victims of corpo-
rate misconduct will often be dependent on non-governmental organiza-
tions (“NGOs”) to bring legal proceedings against the corporation be-
cause they lack the resources on their own to do so. Under current Dutch
law, an NGO can bring a case where harm occurs to the general interest
it is promoting as its objective, according to its articles of association.
52
1. Forum Non Conveniens
An important legal hurdle to be overcome by plaintiffs in ATCA litiga-
tion is the doctrine of forum non conveniens, which generally provides
that a case will be dismissed if a defendant can show that an adequate
alternative forum exists.
53
Contrary to common law countries such as the
United Kingdom
54
and the United States, the forum non conveniens doc-
trine is not applied in the Netherlands. In principle, therefore, the issue of
a Dutch court’s competence to hear the case will not present claimants
with the same problems they face in common law countries. As dis-
cussed supra, the basic and primary rule of Dutch law is forum rei; in
52. Burgerlijk Wetboek [BW] [Civil Code] art. 3:305a(1) (Neth.) (providing that an
association or foundation with full legal capacity is entitled to an action for the purposes
of protecting interests of a similar nature of other persons, to the extent it promoted those
interests according to its articles of association). For more on the issue of locus standi for
NGOs in public interest litigation, see Betlem, supra note 18, at 300–03. Betlem argues
that foreign NGOs also have access to the courts in the Netherlands if the description of
the purpose of the NGO matches the interest that has been harmed, and the NGO “can be
regarded as an equivalent to ‘an association or foundation with full legal capacity’ within
the meaning of article 3:305a [of the Dutch Civil Code].” Id. at 302.
53. After determining that an adequate alternative forum exists, the courts must “bal-
ance a series of factors involving the private interests of the parties in maintaining the
litigation in the competing fora and any public interests at stake.” Wiwa, 226 F. 3d 88,
100 (2d Cir. 2000) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)).
54. Whether there is room for the doctrine of forum non conveniens under the Brus-
sels Convention (now EC Regulation No. 44/2001) has been heavily debated. The High
Court in England decided that the doctrine could not be applied in cases where the alter-
native court designated by the Brussels Convention is a court of an EU Member State. Re
Harrods (Buenos Aires) Ltd., [1991] 4 All E.R. 334 (Eng. C.A.). This implies, however,
that there remains room for forum non conveniens arguments when third states are in-
volved. See D
E SCHUTTER, supra note 47, at 35–39.
850 BROOK. J. INT’L L. [Vol. 33:3
other words, competent is the court of the place where the defendant is
incorporated. Therefore, parent companies can be sued in the Dutch
courts concerning activities abroad if the Netherlands is the country
where the corporation has been established.
A few words need to be said on whether the European rules on juris-
diction, as laid down in EC Regulation 44/2001, leave any room for fo-
rum non conveniens considerations. The ECJ’s judgment in Group Josi
Reinsurance Company seems to imply that this is not the case.
55
In this
case, the ECJ held that the general rule of jurisdiction being conferred on
the courts of the domicile of the defendant may not be followed “only in
exceptional cases where an express provision of the Convention provides
that the application of the rule of jurisdiction which it sets out is depend-
ent on the plaintiff’s domicile being in a Contracting State.”
56
In other words, the ECJ seems to suggest that applying the forum non
conveniens doctrine in cases where the national courts have jurisdiction
based on the defendants’ domicile in that state is incompatible with the
requirements of the Brussels Convention—or today with those of EC
Regulation 44/2001. The mandatory character of the forum rei principle
was confirmed by the ECJ in 2005.
57
In other words, the courts of the
defendant’s domicile have no power to decline to exercise their jurisdic-
tion.
B. Choice of Law
Having established the grounds on which a Dutch court would be con-
sidered the appropriate forum for transnational human rights litigation,
we must now address the question of the applicable law. For tort law to
be a useful regulatory system in this context, it is of course necessary that
the law be applicable to actual tort claims filed against those multina-
tional corporations. After all, if a country wishes to regulate certain
transboundary activities of multinational corporations using its tort law,
it can only do so if the judge deciding the suit applies that country’s law.
EC Regulation 44/2001 is purely adjudicative and not prescriptive. It
leaves open the question of which law will be applicable to a tort claim.
This directly contrasts with the ATCA in the United States, which is both
adjudicative and prescriptive. The question of prescriptive jurisdiction
will be settled when the European Parliament and Council Regulation on
the law applicable to non-contractual obligations (“Rome II”) becomes
55. See Case C-412/98, Group Josi Reinsurance Co. v. Universal Gen. Ins. Co., 2000
E.C.R. I-05925, available at http://curia.europa.eu/common/recdoc/convention/gemdoc
2000/html/c41298/41298-a-en.htm.
56. Id. para. 61.
57. Case C-281/02, Michael Owusu v. N.B. Jackson, 2005 E.C.R. I-1383.
2008] CIVIL RECOURSE IN THE NETHERLANDS 851
binding.
58
Because Rome II had not yet entered into force as this Article
was being written,
59
this Article will first discuss prescriptive jurisdiction
based solely on Dutch law. What, according to these rules, will a Dutch
court decide is the applicable law if a parent company incorporated in the
Netherlands is sued for the allegedly harmful activities of a subsidiary
abroad?
First and foremost, it must be noted that under current Dutch private
international law, parties are entitled to agree on the applicable law.
Plaintiffs and defendant corporations can therefore come to an agreement
stating that Dutch tort law is the law that will govern a transnational hu-
man rights case. The possibility of a choice of law is confirmed in the
2001 Bill on Conflicts of Law in Tort (Wet Conflictenrecht Onrecht-
matige Daad) (“WCOD”).
60
This choice of law rule supersedes the main
rule regarding the selection of the law governing the dispute, lex loci
deliciti, which provides that the place where the harm occurred deter-
mines the applicable law.
61
As stated above, in cases of corporate mis-
conduct, this lexi loci deliciti principle is not always dispositive as to
which rules are applicable, for distinguishing between the place of the
happening of the event (Handlungsort) and the place where the event
results in damage (Erfolgsort) is not always easy.
62
In such a case, Hand-
lungsort and Erfolgsort will point to two different locations and WCOD
article 3(2) would apply. Article 3(2) provides that when the harmful
effect of an act is felt in a place other than where the act takes place, the
law of the country in which the effect is felt applies unless the corpora-
tion could not reasonably foresee this harmful effect.
63
Consequently,
Dutch courts will have to apply foreign law. The purpose of WCOD arti-
cle 3(2) is to ensure redress in accordance with the expectations of the
society where the harm occurs. The result is that the preventive function
of tort law is pushed to the background, especially in corporate cases
where the laws of the host states are often less strict than the rules in the
home state. For example, the law of the host state may have a high toler-
ance for gender discrimination or environmental harm. It has been ar-
58. See Commission of the European Communities, European Parliament and Coun-
cil Regulation on the Law Applicable to Non-Contractual Obligations, at 2, COM (2006)
83 final (Feb. 21, 2006).
59. The Rome II EC Regulation was adopted on July 11, 2007 and will enter into
force on January 11, 2009. Council Regulation 864/2007, art. 32, 2007 O.J. (L 199) 40,
48 (EC) [hereinafter Rome II].
60. Wet Conflictenrecht Onrechtmatige Daad [WCOD] [Unlawful Act (Conflict of
Laws) Act], art. 6(1), Stb. 2001, 190.
61. Id. art. 3(1).
62. See supra text accompanying notes 42–44.
63. WCOD, art. 3(2).
852 BROOK. J. INT’L L. [Vol. 33:3
gued that in such cases, where foreign law does not comport with the
rules of international law, the Dutch courts should not have the authority
to apply these foreign rules.
64
There are several exceptions to the principle of lex loci delicti. First,
when the defendant and the plaintiff both have their primary residence in
the country where the harm occurs the case will be governed by the law
of that country.
65
Second, the so-called accessory obligation provides that
when the wrongful act is closely connected to a contractual relation be-
tween the parties involved, the court may decide that the law that gov-
erns the case arising out of the wrongdoing will be the same law that
governs the contractual obligation between the parties.
66
One can therefore conclude that under current Dutch law on the con-
flicts of law in tort, Dutch courts will most likely apply foreign law in
transnational human rights litigation that seeks to hold a parent company
accountable for acts or omissions in violation of a duty of care by the
parent company itself. Similarly, if the plaintiff seeks to pierce the corpo-
rate veil, the applicable law will be the law of the country where the sub-
sidiary is incorporated because this will be considered the lex societatis
of the subsidiary.
67
As mentioned above, in the near future European law will settle the
question of prescriptive jurisdiction. On June 25, 2007, an agreement
was reached in Rome II applying to situations involving a conflict of
laws and non-contractual obligations in civil and commercial matters.
68
Similar to the WCOD, Rome II’s main rule is that parties are free to
choose the applicable law.
69
The difference, however, is that under Rome
II, where no choice is made, the principle of lex loci damni applies. In
other words, “the law applicable to a non-contractual obligation shall be
the law of the country in which the damage arises or is likely to arise,
irrespective of the country in which the event giving rise to the damage
occurred and irrespective of the country or countries in which the
indirect consequences of that event arise.”
70
Like the exceptions in Dutch
law, Rome II provides that when both the plaintiff and the defendant
64. See Andre Nollkaemper, Litigation Against MNCs: Public International Law in
the Netherlands, in L
IABILITY OF MULTINATIONAL CORPORATIONS UNDER INTERNATIONAL
LAW 265, 280 (Menno T. Kamminga & Saman Zia-Zarifi eds., 2000).
65. WCOD, art. 3(3).
66. See id. art. 5.
67. For more on piercing the corporate veil, see supra text accompanying notes 28–
30. For more discussion on the duty of care, see infra text accompanying notes 92–98.
68. Rome II, supra note 59, art. 1.
69. See id. art. 14(1).
70. Id. art. 4(1).
2008] CIVIL RECOURSE IN THE NETHERLANDS 853
have their primary residence in the same country, the law of that country
will be applicable.
71
In addition to establishing a conflict of law principle, Rome II resolves
two other jurisdictional issues relevant to this Article’s discussion. First,
jurisdiction arising from an accessory obligation is mandatory. Article
4(3) of Rome II provides:
[w]here it is clear from all the circumstances of the case that the
tort/delict is manifestly more closely connected with a country other
than that indicated in paragraphs 1 or 2, the law of that other country
shall apply. A manifestly closer connection with another country might
be based in particular on a pre-existing relationship between the parties,
such as a contract, that is closely connected with the tort/delict in ques-
tion.
72
Second, article 7 of Rome II incorporates a new “polluter pays” princi-
ple (concerning environmental damage) and reads:
The law applicable to a non-contractual obligation arising out of envi-
ronmental damage or damage sustained by persons or property as a re-
sult of such damage shall be the law determined pursuant to Article
4(1), unless the person seeking compensation for damage chooses to
base his or her claim on the law of the country in which the event giv-
ing rise to the damage occurred.
73
Consequently, when a case concerns damage to the environment, the
plaintiff may choose between lex loci damni and lex loci delicti. The
European Commission is of the opinion that this choice reflects “the pol-
luter pays” principle. Applying this to the Trafigura case may result in
either Dutch or English law being applicable if a plaintiff brought suit
against Trafigura for the environmental damage caused in the Ivory
Coast.
According to Dutch law, bringing suit against a Dutch parent company
before a Dutch court for harmful activities abroad will not present major
jurisdictional problems. However, at least in theory, a significant stum-
bling block will be that, generally, the Dutch court will have to apply the
law of the host state unless the parties explicitly agree to have the law of
the home country govern the dispute. An additional exception worth not-
71. Id. art. 4(2). This provision, contrary to the provision in the WCOD, explicitly
states that both parties must live in the same country at the time the damage occurs or is
likely to occur in order for that country’s law to govern the non-contractual obligation. Id.
This suggests that plaintiffs who move to a particular country after they sustain damage
will not necessarily enjoy the application of that country’s law.
72. Id. art. 4(3).
73. Id. art. 7.
854 BROOK. J. INT’L L. [Vol. 33:3
ing is the rarely invoked doctrine forum necessitates, which applies in
situations in which no reasonably available alternative forum exists due
to, for example, war or a natural disaster. However, practice in civil cases
so far demonstrates that recourse is often taken to the lex fori for several
reasons: a judge may be unfamiliar with foreign law or appropriate ap-
plication of foreign law would be too time-consuming.
74
Moreover, with
the entry into force of Rome II, the law of EU Member States may apply
in cases concerning extraterritorial environmental damage caused by
corporations incorporated in these states.
C. Dutch Tort Law
Even if one concedes that Dutch tort law will rarely apply in transna-
tional human rights litigation, it is relevant nonetheless to consider the
potential value of Dutch substantive tort law in such cases. This is espe-
cially valuable as a source of comparative legal information for parties
that agree to let Dutch law govern the dispute. Moreover, when Rome II
ultimately enters into force in 2009, Dutch tort law will be applicable to
cases involving environmental damage caused by a Dutch corporation.
All of these reasons make it worthwhile to examine the legal techniques
of Dutch law when dealing with such international disputes.
Under Dutch law, it is possible to file a legal claim against a corpora-
tion since corporations have legal personality under the Dutch Civil
Code.
75
The focus of this Article is the civil liability of corporations for
grave breaches of international law. It is important to note that in such
cases national standards give effect to international standards when de-
termining liability in specific cases. Professor Nollkaemper argues that
instead of using national standards, it would be better to directly deter-
mine the legality of the contested activity on the basis of international
law.
76
He argues that in cases of transnational litigation, public interna-
tional law, having already been accepted by all or most states, would be
perceived as more neutral and fair to the parties than would national
standards. Moreover, he argues that such domestic rules, particularly in
cases involving environmental standards, are not always easily applica-
ble to a foreign situation and international law might therefore be the
more appropriate law.
77
Nevertheless, as Professor Nollkaemper ac-
knowledges, courts continue to turn to national law for the law that gov-
74. See generally VOORKEUR VOOR DE LEX FORI [PREFERENCE FOR LEX FORI] (R. Kot-
ting, J.A. Pontier & L. Strikwerda eds., 2004).
75. See Burgerlijk Wetboek [BW] [Civil Code] art. 2:3 (Neth.).
76. Nollkaemper, supra note 64, at 267.
77. Id. at 267–268.
2008] CIVIL RECOURSE IN THE NETHERLANDS 855
erns such cases, while private international law determines which na-
tional standards are applicable.
If Dutch law is the applicable law, the relevant provision in Dutch tort
law is article 6:162 of the Dutch Civil Code, which reads:
1. A person who commits an unlawful act towards another which can
be imputed to him, must repair the damage which the other person suf-
fers as a consequence thereof.
2. Except where there is a ground of justification, the following acts are
deemed to be unlawful: the violation of a right, an act or omission vio-
lating a statutory duty or a rule of unwritten law pertaining to proper
social conduct.
3. An unlawful act can be imputed to its author if it results from his
fault or from a cause for which he is answerable according to law or
common opinion.
78
In other words, under Dutch tort law, a tort is committed when (1) an
act or omission violates a statutory duty, (2) a right is violated, or (3) an
act or omission violates a rule of unwritten duty of care. This differs, for
example, from the English system of separate torts. In the Netherlands,
the concept of tortious liability is a general principle that must be fleshed
out by the courts. The Dutch courts have shown in a handful cases that
they can enforce international law in civil litigation by reading it into the
elements of a tort set out in the Dutch Civil Code.
Two situations need to be distinguished. In the first place, the activities
of the corporation must directly violate an international legal right or
duty to form the direct basis of a civil action. For direct application of
international law in Dutch tort cases, two conditions need to be met: di-
rect effect and horizontal effect. First, the international norm in question
must have direct effect
79
or, in other words, be self-executing. An indi-
vidual can only rely on an international norm before the Dutch courts if
the relevant treaty provision (or a resolution by an international organiza-
tion) is considered binding on all persons. This implies that the provision
contains unequivocal norms that can be invoked before the courts with-
out any further implementation. Whether a provision has direct effect is
78. BW art. 6:162 (Neth.).
79. Article 93 of the Dutch Constitution reads: “Provisions of treaties and resolutions
by international institutions, which may be binding on all persons by virtue of their con-
tents, shall become binding after they have been published.” G
RONDWET VOOR HET
KONINKRIJK DER NEDERLANDEN [GW.] [CONSTITUTION OF THE KINGDOM OF THE
NETHERLANDS] art. 93.
856 BROOK. J. INT’L L. [Vol. 33:3
to be decided by the courts.
80
If an international treaty provision or deci-
sion of an international organization
81
has direct effect it will take prece-
dence over conflicting national law. The direct effect of international
norms has mostly been recognized by the Dutch courts regarding classic
fundamental rights such as those laid down in the European Convention
on Human Rights (“ECHR”) and the International Covenant on Civil and
Political Rights (“ICCPR”).
82
Overall, social and economic rights as laid
out in the European Social Charter (“ESC”) and the International Cove-
nant on Economic, Social and Cultural Rights (“ICESCR”) are consid-
ered to lack direct effect.
83
The direct effect of an international norm is the minimum requirement
for the direct application of such a norm. The second requirement is that
the norm must have a horizontal effect, meaning the norm must be capa-
ble of producing legal effect in the relations between two private parties.
Dutch courts have been rather hesitant to recognize the horizontal effect
of international norms.
84
However, to the extent that Dutch courts have
recognized the horizontal effect of international norms, such recognition
has, again, been mostly in relation to classic civil and political rights.
85
80. In determining whether a provision has direct effect, the courts will look to the
wording and content of the provision; moreover, “the context, character and nature, goal
and objective, intent of parties and the [travaux préparatoires]” are taken into account.
Martijn van Empel & Marianne de Jong, Constitution, International Treaties, Contracts
and Torts, in N
ETHERLANDS REPORTS TO THE 16TH INTERNATIONAL CONGRESS OF
COMPARATIVE LAW 283, 295 (Ewoud Hondius & Carla Joustra eds., 2002), available at
http://www.ejcl.org/64/art64-17.pdf (citing three cases from the Dutch Supreme Court
and one case from the Dutch Special Court of Appeals). Beyond the scope of this Article
and therefore not considered here is the direct effect of European Community Law in the
Netherlands as a Member State. That body of law does not depend on the Dutch Constitu-
tion for its effect in the Dutch legal order. The ECJ has laid down the doctrines of auton-
omy and supremacy. See Case 26/62, Van Gend en Loos v. Nederlandse Administratie
der Belastingen, 1963 E.C.R. I-1; Case 6/64, Costa v. ENEL, 1964 E.C.R. I-585.
81. The Dutch Supreme Court has decided that only treaties and decisions of interna-
tional organizations can have direct effect in the Dutch legal order; customary law, prin-
ciples of international law, and non-directly effective treaty provisions will not take
precedence over national law. See Nyugat, Hoge Raad der Nederlanden [HR] [Supreme
Court of the Netherlands], 6 maart 1959, NJ 1962, 2 (Neth.).
82. See generally L. Erades, International Law and the Netherlands Legal Order, in
I
NTERNATIONAL LAW IN THE NETHERLANDS 375, 388–415 (H.F. van Panhuyst et al. eds.,
1978).
83. See id.
84. See Nollkaemper, supra note 64; van Empel & de Jong, supra note 80, at 285.
85. The following provisions of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“ECHR”) have been acknowledged as having horizontal
effect: the prohibition on slavery and forced labour (article 4); the right to liberty and
security (article 5); the right to a fair trial (article 6); the right to respect for private and
2008] CIVIL RECOURSE IN THE NETHERLANDS 857
Application of economic and social rights to horizontal relations is very
rare.
86
The Dutch Supreme Court has held that, under Dutch tort law, a breach
of a statutory duty includes any breach of an act of parliament or of a
norm provided in secondary legislation (either of a public or private na-
ture), whether of Dutch or foreign origin. Therefore, where the defendant
has acted contrary to the domestic law of a country other than the Neth-
erlands, such an act will also be seen as a breach of a Dutch statutory
duty.
87
Besides the direct application of international norms described above,
international law can be applicable to tort cases in an indirect manner.
This can occur when the harmful activities violate a rule of unwritten
duty of care as interpreted with reference to international law. This route
is especially important for the applicability of international norms that
lack direct effect. This also includes non-binding international norms, as
was illustrated in the 1979 BATCO case.
88
The court found in this case
that the corporation BATCO had acted wrongfully by closing its Am-
sterdam factory. Among the circumstances relied on by the court were
the Organisation for Economic Cooperation and Development Guide-
lines for Multinational Enterprises (“OECD Guidelines”).
89
The OECD
Guidelines provide:
Enterprises should . . . in the case of the closure of an entity involving
collective lay-offs or dismissals, provide reasonable notice of such
changes to representatives of their employees . . . and co-operate with
the employee representatives . . . so as to mitigate to the maximum ex-
tent practicable adverse effects.
90
family life (article 8); the freedom of thought, conscience and religion (article 9); and the
freedom of expression (article 10). Convention for the Protection of Human Rights and
Fundamental Freedoms arts. 4–6, 8–10, Nov. 4, 1950, 213 U.N.T.S. 221. For an overview
of these provisions, see van Empel & de Jong, supra note 80, at 288–90.
86. But see Hoge Raad der Nederlanden [HR] [Supreme Court of the Netherlands], 30
mei 1986, NJ 1986, 688 (Neth.) (discussing the right to strike under article 6(4) of the
European Social Charter).
87. See Wet Conflictenrecht Onrechtmatige Daad [WCOD] [Unlawful Act (Conflict
of Laws) Act], art. 8, Stb. 2001, 190; Betlem, supra note 18, at 292 (asserting that “where
the defendant has acted contrary to an obligation of the domestic law of another country
than the Netherlands, this is still a breach of a statutory duty”).
88. Ondernemingskamer [Dutch Companies and Business Court], 21 juni 1979, NJ
1980, 71 (Neth.).
89. O
RGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, THE OECD
GUIDELINES FOR MULTINATIONAL ENTERPRISES (2000), available at http://www.oecd.org/
dataoecd/56/36/1922428.pdf.
90. Id. art. IV, para. 6.
858 BROOK. J. INT’L L. [Vol. 33:3
The Chairman of BAT Industries, BATCO’s parent company, had pub-
licly accepted the OECD Guidelines as a guideline for BAT Industries’
policy.
91
BATCO’s public acceptance provided the basis for court’s deci-
sion to use the OECD Guidelines to determine whether BATCO’s activi-
ties could be characterized as mismanagement. The court stated that
BATCO had seriously neglected its obligation to consult with employee
representatives, concluded that BATCO’s decision to close the factory
was mismanagement, and therefore annulled the decision to close the
factory. As Professor Nollkaemper has noted, the court’s reliance on the
OECD Guidelines in this case would seem to indicate that such interna-
tional standards can also be used to determine the duty of care under
Dutch tort law.
92
For corporations to be bound by such standards, inter-
national norms will have to be sufficiently evolved before they will be
seen as publicly accepted legal standards.
93
Because as yet no case has been brought against a parent company un-
der Dutch tort law for its allegedly harmful activities abroad, it is diffi-
cult to predict how the duty of care will be determined in such cases.
However, it seems that, given the accepted relevance of a non-binding
international standard like the OECD Guidelines, international treaty
norms will certainly be considered relevant to establishing that certain
behavior violates the duty of care laid out in article 6:162 of the Dutch
Civil Code.
94
The Dutch Supreme Court has acknowledged that parent companies
owe a duty of care to their “stakeholders,” referring in these cases to
creditors. A parent company must prevent a subsidiary from taking on
new debt if it is clear that this debt will not be satisfied.
95
It has been ar-
91. See van Empel & de Jong, supra note 80, at 291.
92. Nollkaemper, supra note 64, at 275.
93. See van der Heijden & Jesse, supra note 14. This can also be deduced, although it
concerned financial reporting principles, from a more recent case where the Dutch Su-
preme Court ruled that non-binding guidelines on financial reporting had evolved into
publicly accepted norms with which the company Koninklijke KPN had to comply. See
Koninklijke KPN N.V./Stichting SOBI, Hoge Raad der Nederlanden [HR] [Supreme
Court of the Netherlands], 10 februari 2006, LJN AU7473 (Neth.). The same reasoning
was applied by the Court in the case against the company Versatel. Similar to BATCO,
Versatel had subscribed to the non-binding Dutch Corporate Governance Code (known as
the Tabaksblat Code), but did not inform a minority of the shareholders that it had
amended its corporate governance policy; this conduct was complained of as misman-
agement, and the Court decided to review the corporate decisions. Centaurus Capital Ltd.
et al./Versatel Telecom International N.V., Hoge Raad der Nederlanden [HR] [Supreme
Court of the Netherlands], 14 september 2007, NJ 2007, 611 (Neth.).
94. Burgerlijk Wetboek [BW] [Civil Code] art. 6:162 (Neth.).
95. See Albada Jelgerma II, Hoge Raad der Nederlanden [HR] [Supreme Court of the
Netherlands], 19 februari 1988, NJ 1988, 487 (Neth.); Sobi/Hurks II, Hoge Raad der
2008] CIVIL RECOURSE IN THE NETHERLANDS 859
gued that a broad reading of this rule means that a parent company has a
duty of care to prevent foreseeable damage. For example, in terms of
injury that may occur when working with hazardous materials, it has
been argued that if workers fall ill as a result of working with such mate-
rials, this may give rise to direct liability for the parent company if the
company had the opportunity to intervene in its subsidiary’s activities.
96
In such cases, the first line of defense of the parent company will no
doubt be that it ensured that the subsidiary’s activities were in confor-
mity with the local laws. The problem is, however, that local laws are
often much less stringent than the law of the home state. It can be con-
tended that under Dutch law a parent company cannot hide behind these
double standards because Dutch law places high demands on corpora-
tions to assess and control risks and therefore they have a duty to inter-
vene if they are aware of harmful activities. This interpretation of the
duty of care also follows from the OECD Guidelines. A comment to the
OECD Guidelines explains:
The reference to occupational health and safety implies that multina-
tional corporations are expected to follow prevailing regulatory stan-
dards and industry norms to minimise the risk of accidents and injury to
health arising out of, linked with, and occurring in, the course of em-
ployment. This encourages enterprises to work to raise the level of per-
formance with respect to occupational health and safety in all parts of
their operation, even where this may not be formally required by exist-
ing regulations in countries in which they operate.
97
This clearly states that corporations have a duty beyond mere adher-
ence to the national rules of the host state.
98
As discussed above, Dutch
courts are prepared to consider the OECD Guidelines when determining
the duty of care under Dutch tort law.
In sum, Dutch courts will refer both to binding and non-binding inter-
national standards to determine whether the unwritten duty of care has
been violated. It may be argued that a failure to prevent foreseeable dam-
age will give rise to tortious liability under Dutch law.
Nederlanden [HR] [Supreme Court of the Netherlands], 21 december 2001, NJ 2005, 96
(Neth.).
96. Lennarts, supra note 18, at 184.
97. O
RGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, COMMENTARY
ON THE
OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES (2000), para. 27, available
at
http://www.oecd.org/dataoecd/56/36/1922428.pdf.
98. Lennarts, supra note 18, at 187.
860 BROOK. J. INT’L L. [Vol. 33:3
III.
THE LIKELIHOOD OF AN ACTIVIST APPROACH TO CIVIL LAW IN THE
NETHERLANDS
From the previous discussion, it may be concluded that, despite poten-
tial stumbling blocks arising from the rules of private international law,
transnational human rights cases are feasible before the courts in the
Netherlands. In this Part, some other general procedural features of the
Dutch legal system and Dutch legal culture will be discussed. These fea-
tures may help explain why the use of civil lawsuits as a tool for social
reform is not currently common in the Netherlands, and may reduce the
attractiveness of the Netherlands as a forum for transnational human
rights cases. Professor Stephens identifies certain procedural advantages
in the United States that make it an attractive forum.
99
In this Part, some
of these procedures will be compared with the procedures in the Nether-
lands.
First and foremost, there are several potential obstacles from an eco-
nomic perspective. For one, a serious disincentive to litigate in the Neth-
erlands is the “loser pays” principle. Unlike the “American rule,” in the
Netherlands, the losing party can be required to pay the court fees and
(part of) the legal fees of the victorious opponent.
100
This no doubt is an
important reason why, so far, there has not been a case against a Dutch
corporation for human rights violations abroad. In such a test case the
chances that the plaintiff will face substantial legal fees and costs is a
very real possibility. Moreover, unlike the rule in the United States and
despite recent discussion to introduce the principle of “no cure, no pay,”
the Netherlands still has not adopted this rule.
101
Substantial attorney fees
can therefore pose a considerable disincentive for plaintiffs.
102
The ab-
sence of a contingency fees system that permits attorneys to collect fees
as a percentage of a successful judgment makes it very unattractive for
lawyers from a financial point of view to initiate a test case. Overall,
Dutch lawyers will not take a proactive stance. Moreover, the Nether-
lands does not have a culture of volunteer work among lawyers to the
99. The practices identified by Professor Stephens have been taken as a starting point
for this survey of possible procedural obstacles to civil litigation for human rights viola-
tions. See Stephens, supra note 10, at 14–17, 27–34.
100. Wetboek van Strafvordering [S
V] [Dutch Code of Criminal Procedure] arts. 237–
45 (Neth.). However, according to article 242, the court has some room to moderate the
potential penalty for the loser. Id. art 242.
101. The Dutch Bar Association tried to introduce the principle of “no harm, no pay”
in bodily harm cases. This was, however, precluded by the Dutch Minister of Justice in
March 2005. See A.W. Jongbloed, Access to Justice, Costs and Legal Aid, 11 E
LEC. J.
COMP. L. 1, 7–8 (2007), http://www.ejcl.org/111/art111-14.pdf.
102. Legal aid is provided in cases where the income of the plaintiff is not sufficient.
See Wet op de Rechtsbijstand [Bill on Legal Aid] art. 34, Stb. 1993, 775.
2008] CIVIL RECOURSE IN THE NETHERLANDS 861
same degree as in the United States.
103
A final major financial disincen-
tive is that, unlike the United States, the Netherlands does not award pu-
nitive damages but permits only compensatory damages awards. In this
sense, the prospect of civil litigation in the United States is a more effec-
tive deterrent to corporate malfeasance than is the case in the Nether-
lands.
In addition to economic obstacles, another factor that makes the Neth-
erlands potentially less hospitable to transnational human rights claims is
the manner in which the courts deal with cases involving a large number
of victims, a common feature of transnational human rights litigation.
Unlike in the United States, the right to bring a class action or a collec-
tive action for damages is not available under current Dutch law.
104
A
group of claimants is not treated as an entity but as a sum of individuals,
thus making legal procedures much more cumbersome. The only other
procedure in Dutch law that facilitates civil litigation by large classes of
similarly situated plaintiffs is a procedure created in 2005 under the
Dutch Bill on the Settlement of Mass Damages (Wet Collectieve Afwik-
keling Massaschade) (“WCAM”).
105
Under the WCAM procedure, the
court can issue a declaration of binding force for a settlement between
plaintiffs and defendants. This procedure can be initiated independently
from any civil suit. Aggrieved parties not in agreement with the settle-
ment may opt out.
106
This procedure cannot, however, be compared to
the class action.
107
The general features of litigation procedures as outlined here help ex-
plain why an activist approach to private law is uncommon in the Nether-
lands. Private law is highly individualistic and neither judges (who tradi-
103. See Stephens, supra note 10, at 30 (describing the development of U.S. civil liti-
gation of human rights abuses abroad by U.S. public interest attorneys with additional pro
bono support from law clinics and private law firms).
104. Article 305a of the Dutch Civil Code provides that an organization may bring a
claim on behalf of people whose interests have allegedly been harmed, provided that the
organization represents those interests. Burgerlijk Wetboek [BW] [Civil Code] art.
3:305a (Neth.). This article, however, does not address claims seeking monetary compen-
sation. Id. para. 3.
105. Wet Collectieve Afwikkeling Massaschade [Dutch Bill on the Settlement of Mass
Damages], Stb. 2005, 340; Koninklijk Besluit [Royal Decree], Stb. 2005, 380. The proce-
dure introduced by this bill can be found in the Dutch Civil Code and the Dutch Code on
Civil Procedure. BW arts. 7:907–10 (Neth.); Wetboek van Burgerlijke Rechtsvordering
[Rv] [Code of Civil Procedure] arts. 14:1013–18 (Neth.).
106. See BW art. 7:908(2)–(3) (Neth.).
107. The WCAM procedure is a feature of contract law in which the participating vic-
tims are still seen as individuals and not as one collective. By contrast, a civil law claim
based on tortious misconduct must be brought individually or by a group. In the latter
case, however, the group is regarded as a number of individuals.
862 BROOK. J. INT’L L. [Vol. 33:3
tionally play a more passive role in the Netherlands) nor lawyers (given
the economic disincentives) take an active stance. Victims of human
rights violations will therefore have a hard time finding a lawyer willing
to take on their case, effectively blocking their access to the courts. This
legal culture makes it unlikely that the Dutch legal system will be faced
with many transnational human rights cases.
IV.
CRIMINAL PROSECUTION
As mentioned in the Introduction to this Article, the dumping of toxic
waste from the Probo Koala has given rise to various investigations and
proceedings.
108
The victims have also turned to civil law remedies, albeit
in the United Kingdom—not in the Netherlands. The previous Parts have
mapped the feasibility of bringing such a case before the Dutch courts. It
should be pointed out, however, that the role played by civil law as a
remedy against corporate human rights violations in Europe as compared
to the United States is limited. Recourse to civil action has so far been
limited to a relatively small number of cases in the United Kingdom. In
general, the principal remedy in Europe for extraterritorial human rights
violations is criminal prosecution. This is underscored by several highly
publicized cases in which individuals accused of committing grave hu-
man rights violations have been prosecuted. The case in the United
Kingdom against General Augusto Pinochet, former dictator of Chile,
serves as an example.
109
Similarly, individuals, both nationals and non-
nationals, accused of extra-territorial human rights violations have been
subjected to prosecution in the Netherlands. For example, in 2005 two
former Afghan military leaders who had fled to the Netherlands were
108. A similar case involving a ship and environmental damage is still pending in
France. See Nick Champeaux, Who Pays? Oil Spill Responsibility Before the Courts in
France, N
ETWORK EUROPE, Feb. 16, 2007, available at http://www.networkeurope.org/Fe
ature/who-pays-oil-spill-responsibility-before-the-courts-in-france (discussing a criminal
case brought before a French court with respect to a 1999 oil spill by the tanker Erika).
109. Pinochet was arrested in 1998 while visiting the United Kingdom. Spanish prose-
cutors had requested his extradition based on charges of murder, conspiracy to murder,
and conspiracy to commit acts of torture during his time as the Chilean head of state.
Ultimately, Pinochet was allowed to return to Chile on account of his failing health. See
R v. Bartle and the Commissioner of Police for Metropolis and Others, Ex Parte Pino-
chet, [1999] UKHL 147, [2000] 1 A.C. 147 (Eng.). Other examples include the cases
against Muammar Quaddafi of Libya and Ariel Sharon of Israel. Cour de cassation,
Chambre criminelle [Cass. crim.] [French high court, criminal chamber] Paris, Mar. 13,
2001, Bull. crim., No. 64, at 218 (Fr.); Yaron, Amois et Autres v. Ariel Sharon, S.A.,
Cour de cassation [Belgian Supreme Court], No. P. 02.1139.F/1 (Feb. 12, 2003) (Belg.).
2008] CIVIL RECOURSE IN THE NETHERLANDS 863
sentenced to prison for committing war crimes, notably torture, in Af-
ghanistan.
110
Perhaps even more relevant to this Article’s discussion is the judgment
in the case against the Dutch businessman Frans van Anraat.
111
In 2005,
van Anraat was put on criminal trial in Dutch district court in The Hague
for supplying raw materials for chemical weapons used by Iraq against
Iran and Iraqi Kurds in the 1980–88 war.
112
According to the Dutch
court, van Anraat was not aware of the genocidal intentions of the Iraqi
regime when he sold the materials.
113
He was therefore not found guilty
of genocide but was still sentenced to fifteen years’ imprisonment for
complicity in war crimes, since his deliveries facilitated the attacks.
114
This case concerned an individual who was prosecuted for business ac-
tivities that were considered to be in violation of international law.
115
As
yet, no criminal case has been brought against a corporation for grave
extraterritorial breaches of international law.
The emphasis in Europe on criminal prosecution as a remedy for extra-
territorial human rights violations warrants a brief discussion of the pos-
sibilities Dutch criminal law offers for prosecution of a corporation for
human rights violations. The prevailing practice is to apply criminal li-
ability to legal persons in the Netherlands.
116
No distinction is made be-
110. See Rechtsbank [Rb.] Gravenhage [District Court of the Hague], 14 oktober 2205,
LJN AU4347 & AU4373 (Neth.).
111. See generally Trial Watch: Frans van Anraat, http://www.trial-ch.org/en/trial-
watch/profile/db/legal-procedures/frans_van-anraat_286.html (last visited May 31, 2008).
112. Id.
113. Van Anraat, Rechtsbank [Rb.] Gravenhage [District Court of The Hague], 23
december 2005, LJN AU8685 (Neth.).
114. Id. This was the first case concerning genocide in the Netherlands; the judgment
was confirmed in 2007 and two years were added to the sentence. See Trial Watch: Frans
van Anraat, supra note 111.
115. Another Dutch businessman, Guus Kouwenhoven, has also been charged, con-
victed, and sentenced to eight years’ imprisonment in relation to his company’s business
activities. The charges against him concerned complicity in war crimes in Liberia and
violation of the U.N. weapons embargo by importing weapons for former Liberian presi-
dent Charles Taylor during Liberia’s civil war. Kouwenhoven was acquitted of the first
charge, but was ultimately found liable for breaching the U.N. embargo. See Kouwenho-
ven, Rechtsbank [Rb.] Gravenhage [District Court of The Hague], 7 juni 2006,
LJN AX7098 (Neth.). On appeal, Kouwenhoven was aquitted of all charges due to a lack
of evidence. Kouwenhoven, Gerechtshof [Hof] Gravenhage [Appeals Court of The
Hague], 10 maart 2008, LJN BC6068 (Neth.).
116. By 1951, the concept of holding legal persons liable for committing economic
crimes had already been recognized by Danish courts and was formerly adopted by the
so-called Wet Economische Delicten (“WED”). In 1976, this concept was also provided
for in the Dutch Criminal Code. Today, the criminal cases brought against corporations
frequently concern economic and environmental matters.
864 BROOK. J. INT’L L. [Vol. 33:3
tween the criminal liability of individuals and legal persons, and corpora-
tions are frequently prosecuted for violating provisions in the Dutch
Criminal Code.
117
Corporations can be held criminally accountable for
the commission of a crime but also for being accomplices or for aiding
and abetting the commission of a crime.
118
There is no specific type of
sanction designed especially for corporations since no conceptual distinc-
tion is made between individuals and legal persons under Dutch criminal
law.
119
The equal treatment of individuals and legal entities under Dutch
criminal law makes criminal prosecution of corporations for human
rights violations an interesting option, especially given the fact that the
principal international crimes recognized under the Rome Statute of the
International Criminal Court have been fully incorporated under Dutch
law in the Wet Internationale Misdrijven (Dutch Bill on International
Crimes).
120
An advantage of civil redress for corporate human rights violations is
the fact that victims can claim compensation for the harm suffered. In the
criminal process, there has traditionally been a lack of attention to com-
pensating the victim, due to the focus on the perpetrator. This was ad-
dressed in 1995 with the adoption of the Wet Terwee (Victim’s Act),
which made it possible, inter alia, for a claim for compensation to be
filed adjunct to a criminal prosecution.
121
Since the adoption of the Act
Terwee, there has been no fixed limit to the amount that may be
awarded. Moreover, as is the case in the United States, a criminal prose-
cution does not bar civil action concerning the same conduct. In other
words, criminal proceedings do not preclude the victim from also seek-
ing a civil remedy.
The preceding brief sketch of the main features of Dutch criminal law
shows that, from the perspective of holding corporations accountable for
an extraterritorial violation of international law, this body of law offers
an interesting avenue for victims of corporate misconduct. Nevertheless,
117. The Dutch Criminal Code provides that criminal offenses can be committed by
natural and legal persons, and that, in the case of the latter, prosecution may be brought
against the legal person itself, the agent acting on its behalf who ordered or was instru-
mental in controlling or directing the commission of the offense, or both. See Wetboek
van Strafrecht [S
R] [Criminal Code] art. 5 (Neth.).
118. See S
R arts. 47–54 (Neth.).
119. Not every penal sanction (e.g., imprisonment) is suitable for a legal person. Ap-
propriate sanctions such as fines, denial or suspension of certain rights or privileges, or
compensation to the victim are provided for in the Dutch Criminal Code. See S
R arts. 9,
36a–f (Neth.).
120. Wet Internationale Misdrijven [WIM] [Bill on International Crimes], Stb. 2003,
270.
121. Wet Terwee [WT] [Victim’s Act], Stb. 1993, 29.
2008] CIVIL RECOURSE IN THE NETHERLANDS 865
to date, no corporation has been prosecuted for extraterritorial violations
of international human rights law. It is possible that the complexities of
holding multinational corporations accountable for extraterritorial viola-
tions of international law resulting, inter alia, from convoluted legal
structures, pose such a major obstacle that the Dutch prosecutor has so
far been unwilling to initiate criminal proceedings. The public prosecutor
has the exclusive right to prosecute. His decision should be based on the
likelihood of obtaining a sentence, and public interest should be taken
into account.
122
The prosecutor, therefore, might be more inclined to
prosecute the individual businessman,
123
as in the case of van Anraat.
124
The transnational human rights cases in Europe have so far concen-
trated mainly on situations of torture. A possible explanation of the pref-
erence for criminal prosecution in these cases is the existence of an inter-
national document establishing the obligation to either extradite or
prosecute in cases of torture. In a way, criminal prosecution has therefore
proven less problematic in cases concerning torture because prosecution
is “mandated” by the Convention against Torture and Other Cruel, In-
human or Degrading Treatment or Punishment (“CAT”).
125
The CAT’s
inclusion of extraterritorial acts of torture is only made explicit with ref-
erence to criminal law enforcement. In other words, the CAT does not
require state parties to provide civil law remedies for extraterritorial
cases of torture. However, article 14 provides that each state party must
“ensure in its legal system that the victim of an act of torture obtains re-
dress and has an enforceable right to a fair and adequate compensation,
including the means for as full rehabilitation as possible.”
126
One could
argue that a broad reading of this provision requires states to provide for
civil redress in the case of torture. However, as Professor Byrnes has ob-
served, although there is some support for this interpretation, the better
122. See Wetboek van Strafvordering [SV] [Code of Criminal Procedure] art. 167(2)
(Neth.).
123. Article 12 of the Dutch Code of Criminal Procedure makes it possible for a con-
cerned party, for example a foundation or a group of persons representing the interests
affected by the decision not to prosecute, to request judicial review of the prosecutor’s
decision not to initiate proceedings. See S
V art. 12 (Neth.).
124. The van Anraat case is discussed supra text accompanying notes 111–15.
125. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, 1988 U.S.T. 202, 1486 U.N.T.S. 85, available at
http://www2.ohchr.org/english/law/pdf/cat.pdf. The convention requires, among other
things, that state parties ensure all acts of torture are offenses under their criminal laws,
extradite or prosecute alleged torturers found within their territory no matter where the
alleged torture has occurred, and take necessary measures to ensure that they have juris-
diction to do so. See id. arts. 4(1), 5(2), 6–7.
126. Id. art. 14(1).
866 BROOK. J. INT’L L. [Vol. 33:3
view is that the CAT does not require state parties to make resources
available for civil actions concerning torture that occurred outside that
state and for which it is not responsible.
127
The CAT’s focus on criminal
prosecution for extraterritorial acts of torture partly explains the focus on
criminal remedies in the European cases. To date, there is no interna-
tional treaty that clearly obliges courts to take jurisdiction over civil ac-
tions in respect to violations of international law committed abroad.
128
V.
WHICH AVENUE IS PREFERABLE?
The previous sections have outlined the legal avenues available in the
Netherlands to hold multinational corporations accountable for extraterri-
torial violations of international law. The focus has been on civil reme-
dies even though it has been acknowledged that the tendency will be to
first turn to criminal law. In this Part, the advantages and disadvantages
of choosing either a civil or criminal route will be briefly explored.
The avenue of civil liability offers a number of advantages. In general,
it should not be forgotten that civil remedies in a number of countries
may be the only option available to plaintiffs because criminal liability of
legal persons and criminal prosecution of corporations for violations of
international human rights law is not recognized.
129
This is not the case
in the Netherlands, however, where criminal prosecution of legal entities
127. Andrew Byrnes, Civil Remedies for Torture Committed Abroad: An Obligation
Under the Convention Against Torture?, in T
ORTURE AS TORT: COMPARATIVE
PERSPECTIVES ON THE DEVELOPMENT OF TRANSNATIONAL HUMAN RIGHTS LITIGATION
538, 539 (Craig Scott ed., 2001).
128. The failure of the Hague “Judgments Project” demonstrates the difficulties in
coming to worldwide agreement on jurisdiction in civil matters. In 1996, negotiations
started on a multilateral convention providing for uniform rules of jurisdiction and recog-
nition in civil and commercial matters within the framework of the Hague Conference on
Private International Law. Discussion of the Preliminary Draft Convention Text showed a
lack of consensus among the parties. One of the issues was that the hard-and-fast rules of
the proposed text would seriously curtail judicial activism in view of human rights, as is
currently possible under the ATCA. It was eventually decided not to negotiate an all-
encompassing convention, but to use a bottom-up approach beginning with the jurisdic-
tional issues on which there was consensus. Whether the project will succeed is currently
highly uncertain. See generally Knut Woestehoff, The Drafting Process for a Hague Con-
vention on Jurisdiction and Judgments with Special Consideration of Intellectual
Property and E-Commerce
(2005) (unpublished L.L.M. thesis), available at
http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1054&context=stu_llm.
129. The comparative survey conducted by the Norwegian institute Fafo shows that
among the sixteen nations surveyed, the current jurisprudence of five of these countries,
in principle, does not recognize criminal liability of legal persons. These countries are:
Argentina, Germany, Indonesia, Spain, and the Ukraine. See R
AMASASTRY & THOMPSON,
supra note 7, at 13.
2008] CIVIL RECOURSE IN THE NETHERLANDS 867
is fully accepted. But victims are dependent on governmental authorities
to initiate the proceedings. The advantage of civil law is that victims can
themselves set in motion a judicial proceeding. An additional advantage
is that the civil route conserves the limited resources of the state’s prose-
cutor. Moreover, the monetary damages that may be awarded in a civil
suit are not always possible, or at least not to the same extent, in criminal
proceedings. The importance of compensation for victims of human
rights violations has been broadly acknowledged in international human
rights law
130
and the opportunities offered by tort law in this respect are
significant. Transnational tort litigation has, to date, already resulted in
some impressive settlements. In several of the cases brought under the
ATCA, defendant corporations have decided to settle, providing the vic-
tims with substantial financial compensation. At the same time, however,
it should be acknowledged that even if a judgment is rendered, it can
prove difficult to ensure that it is the victims who receive the bulk of the
awarded sums. Nevertheless, the symbolic significance of being awarded
compensation should not be underestimated. Professor Terry even goes
so far as to state:
In truth . . . it is perhaps more accurate to describe the civil remedy not
so much as a mechanism to fill a gap in “enforcement” under interna-
tional law but as a means for providing a measure of self-respect, vin-
dication and recognition for the victims of serious violations of interna-
tional human rights.
131
A substantial point of criticism regarding the use of civil remedies to
address international human rights violations is the position that munici-
pal tort law is an inadequate placeholder for the fundamental values un-
der consideration. Dealing with grave violations such as genocide and
torture by means of municipal tort invites the criticism that this trivial-
izes such acts.
132
Some wrongful acts deserve not merely economic sanc-
tion but also deprivation of liberty. In criminal law cases, there is the
penalty of imprisonment and the entire community may be understood to
130. See Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations
of International Humanitarian Law [Van Boven/Bassiouni Principles], G.A. Res. 60/147,
para. 20, U.N. Doc. A/RES/60/147 (Dec. 16, 2005).
131. John Terry, Taking Filártiga on the Road: Why Courts Outside the United States
Should Accept Jurisdiction Over Actions Committed Abroad, in T
ORTURE AS TORT:
COMPARATIVE PERSPECTIVES ON THE DEVELOPMENT OF TRANSNATIONAL HUMAN RIGHTS
LITIGATION, 109, 112 (Craig Scott ed., 2001).
132. See, e.g., D
E SCHUTTER, supra note 47, at 47–48; LYAL S. SUNGA, INDIVIDUAL
RESPONSIBILITY IN INTERNATIONAL LAW FOR SERIOUS HUMAN RIGHTS VIOLATIONS 111–
26 (1992).
868 BROOK. J. INT’L L. [Vol. 33:3
be represented by the government prosecutor. It may be argued that it is
more appropriate to sentence those responsible for corporate decisions
that result in grave violations of international law to jail than it is to im-
pose mere economic sanctions on them. This argument holds true espe-
cially for the civil litigation discussed in this Article because in these
cases, violations of international law are treated as a municipal tort,
unlike in the ATCA litigation where the violations of international law
give rise to a cause of action.
133
However, in defense of civil recourse for violations of international
law, it may be argued that transnational human rights litigation helps
draw attention to human rights violations committed by corporations,
thus creating a public record of the events. This type of litigation con-
tributes to identifying corporations as violators of human rights. Such
cases may, therefore, also serve to deter future abuses. Even when most
corporations escape such litigation and those held accountable in fact do
not pay out the required compensation, the negative publicity that these
suits generate constitutes an important factor in preventing corporate
human rights violations. In addition, private law is flexible, i.e., it is able
to incorporate new international developments into corporate human
rights obligations. As opposed to criminal law, which, according to the
principle of legal certainty, must set forth clear-cut penalties in advance,
civil law can take (more) particular circumstances into account, which
may increase the amount of compensation significantly.
Moreover, it is important to emphasize that the question is not an “ei-
ther/or” question. Both criminal and civil law have advantages and dis-
advantages as remedies and should operate as complements to each
other. Finally, as persuasively argued by Professor Stephens, the divide
between criminal prosecution and civil liability is not as sharp as is
sometimes claimed.
134
For example, the consequences attached to either
criminal or civil procedures differ significantly from one system to an-
other. The objectives pursued also differ; in some countries civil law
will, much like criminal law, act as a deterrent (one may think of the
United States, given the vast financial implications attached to civil liti-
gation there). In other words, in the different legal systems, “civil and
criminal remedies intertwine and overlap in unfamiliar ways.”
135
As long as the international community continues to shape the en-
forcement of international norms in terms of territorial jurisdiction, mul-
133. See Anthony J. Sebok, Taking Tort Law Seriously in the Alien Tort Statute, 33
B
ROOK. J. INT’L L. 871, 889–96 (2008) (discussing “[w]hy the ‘tort’ in the Alien Tort
Statute is not municipal tort law”).
134. Stephens, supra note 10, at 44–46.
135. Id. at 45.
2008] CIVIL RECOURSE IN THE NETHERLANDS 869
tinational corporations will generally be able to avoid being held ac-
countable for international human rights violations. Civil liability and
criminal prosecution will only provide a partial answer to the problems
posed by these elusive entities. The quest for accountability requires a
multi-faceted approach consisting of national enforcement techniques,
both of a civil and criminal nature as discussed in this Article, and
mechanisms of self-regulation, but preferably also an international in-
strument aimed at holding corporate entities that violate international
norms to account.
C
ONCLUSION
The Netherlands is home to a relatively large number of multinational
corporations. A number of these corporations, such as Trafigura, have
faced considerable criticism for extraterritorial misconduct. This Article
aims to provide insight into the legal approach adopted in the Nether-
lands to asses the feasibility of transnational human rights litigation in
this jurisdiction as a remedy for addressing corporate misbehavior. In
line with other states in Europe, it would seem that the principal remedy
for corporate human rights violations abroad is criminal prosecution.
Civil action is, however, an important legal tool, especially considering
the value (albeit sometimes symbolic) of awarding compensation to vic-
tims of human rights violations. Any opportunities offered by Dutch tort
law should be utilized with civil law and criminal law playing comple-
mentary roles in preventing and remedying violations of human rights.
It has been demonstrated that Dutch civil law does not leave plaintiffs
without remedies. Rules governing adjudicative jurisdiction will gener-
ally not pose a major obstacle to bringing transnational human rights
cases before the Dutch courts. A significant advantage over common law
countries is the fact that the doctrine of forum non conveniens will not be
applied. However, it will not be easy to hold parent companies liable for
harmful activities abroad. Notably, mandatory rules of private interna-
tional law concerning choice of law may constitute potential stumbling
blocks. A major procedural obstacle will be the fact that in most cases
the applicable law will not be Dutch tort law, meaning that the Dutch
judge will have to implement the foreign law of a host state. Parties may,
however, choose to have Dutch law govern the dispute. Moreover, with
the entry into force of Rome II, plaintiffs will be able to opt for Dutch
law in cases of environmental harm emanating from the operations of a
Dutch corporation. It remains to be seen precisely how a Dutch judge
will determine whether certain contested corporate behavior indeed gives
rise to tortious liability. International law can provide a cause of action
directly or indirectly. In the latter situation, soft law instruments have
870 BROOK. J. INT’L L. [Vol. 33:3
been applied as a standard to determine the duty of care and therefore it
can be concluded that a violation of provisions laid out in international
treaties will certainly be taken into consideration.
In sum, taking the procedural and substantive features of Dutch civil
law into account, transnational human rights litigation in the Netherlands
is certainly feasible. However, compared to the United States, other gen-
eral features of the private law system in the Netherlands, such as the
possible financial burden and the Dutch legal culture in general, make
the Netherlands significantly less litigation friendly and may present
considerable stumbling blocks for plaintiffs seeking civil recourse. This
may explain why, to date, no transnational human rights case against a
corporation has been brought before the Dutch courts. In fact, even the
victims of the dumping of toxic waste carried by the Trafigura-chartered
vessel the Probo Koala referred to in this Article, ultimately chose the
English and not the Dutch courts to seek redress. Consequently, although
transnational human rights litigation before the Dutch courts is feasible,
significant hurdles continue to exist that impede the employment of
Dutch civil law as a regulatory and preventive tool in the fight against
undesirable corporate behavior.
