[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]
In Stichting Setting and elementary rights v Repsol Perú BV et al ECLI:NL:RBDHA:2025:8700, the declare pertains to the 15 January 2022 oil leak at La Pampilla, Peru, also referred to as the Callao Oil Spill.
Defendants are Repsol Perú BV, domiciled at The Hague: that is the anchor defendant and jurisdiction in opposition to it’s simply established utilizing Article 4 Brussels Ia. The opposite defendants are Repsol SA Madrid, and Refinería La Pampilla SAA of Callao. Peru.
‘Discussion board connexitatis’ is the ability for a court docket to train jurisdiction over defendants in opposition to whom it doesn’t ordinarily have jurisdiction, offered the claims in opposition to them are so carefully associated to (therefore ‘connexitatis’) one in opposition to a defendant viz whom mentioned court docket undisputedly has jurisdiction, that the curiosity of justice requires joint therapy of all claims involved. The latter defendant is named the ‘anchor defendant’.
Within the case at subject, discussion board connexitatis must be examined in opposition to the EU guidelines (Article 8 Brussels Ia) within the case of Repsol SA; and beneath residual Dutch guidelines (Article 7(1) CPR, as a result of A8(1) doesn’t apply in opposition to non-EU domiciled defendants) within the case of Refiniería La Pampilla SAA.
Present judgment offers with the jurisdictional points solely and doesn’t point out relevant regulation in any respect. It’s probably claimants make use of Article 7 Rome II’s lex ecologia provisions (evaluate the Lliuya v RWE judgment simply final week) nevertheless I can’t be certain.
A primary argument of defendants is that beneath Article IX of the 1992 Worldwide Conference on Civil Legal responsibility for Oil Air pollution Harm – CLC, the declare have to be introduced in Peru:
“The place an incident has prompted air pollution harm within the territory, together with the territorial sea or an space referred to in Article II, of a number of Contracting States or preventive measures have been taken to forestall or decrease air pollution harm in such territory together with the territorial sea or space, actions for compensation could solely be introduced within the Courts of any such Contracting State or States.”
[4.6] the court docket acknowledges that prima facie this does appear like a knock-out level. Nonetheless [4.7] it factors out that however, the CLC solely regulates the legal responsibility of the ship proprietor and its insurer and the way they are often sued. [4.9] the court docket confirms its studying of textual content itself, the travaux and the DNA of the CLC as not pertaining to claims in opposition to events apart from the ship proprietor and its insurer. ‘A 2002 judgment by the Italian Supreme Courtroom’ which I think is I.O.P.C.F. v. Registro Italiano Navale and others, re the sinking
of m/t “Erika”, Italian Supreme Courtroom 17 October 2002 n. 14769 is distinguished on the bottom that that declare concerned the affiliated individuals listed in A IX CLC.
The court docket then considers A8(1) BIa viz Repsol SA, and [4.13] factors out that the identical rules in software of the EU anchor guidelines, apply equally to the residual Dutch guidelines.
[4.11] it means that the declare in opposition to the anchor defendant should have a prospect of success, for A8(1) jurisdiction to be attainable. That view is just not imo supported by the authorities and the problem is at present sub judice a minimum of so far as follow-on damages claims are involved, in CJEU C-673/23 Electrical energy & Water Authority of Authorities of Bahrain ea v Prismiian ea. I evaluation the Opinion of Kokott AG right here.
[4.16] the core reproach viz the defendants is alleged to concern the inadequacy of the La Pampilla reception amenities, and defendants’ insufficient response to the spill. Repsol BV argues that it’s a most distant shareholder and by no means concerned within the goings-on in Peru and that even Repsol SA has no direct dealings with the Peruvian operations. [4.17] claimants argues the close to unique possession (greater than 99%) of Repsol BV in La Pampilla, a shared director and different hyperlinks present the direct involvement or on the very least a culpable non-involvement: Repsol VB must have used its affect to keep away from the calamity.
[4.18] nevertheless the court docket rejects the shareholding and different circumstances and calls for claimants present “direct involvement” by Repsol BV. That’s most positively a step again viz latest responsibility of care litigation, together with in The Netherlands. The court docket didn’t instantly refuse immediate permission to enchantment therefore I think (however I’m not a Dutch CPR skilled) this have to be attainable – and most positively must be exercised.
The deserves evaluation check is as I argue above, not good regulation beneath A8(1) authority and the requirement of ‘direct involvement’ is just not according to latest responsibility of care follow.
Geert.
EU Non-public Worldwide Regulation, third ed. 2021, Heading 2.2.13.1 (specifically 2.496); Heading 2.2.15.3.2; Chapter 7.
