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Ruling on appeal on Probo Koala toxic waste dump

On 14 April 2020 the Court of Appeal of Amsterdam delivered its decision on appeal in the proceedings regarding the toxic waste disaster in Ivory Coast in 2006. Parties to the proceedings were the association Victimes des Déchets Toxiques Côte d’Ivoire (the ‘Stichting’) of the one part and Trafigura of the other.

The Court of Appeal considered the formal arguments raised by Trafigura. With its arguments Trafigura intended to prevent the Dutch Court from assessing Trafigura’s liability towards the victims of the toxic waste disaster. The Court of Appeal, however, held that Trafigura will have to render account to the Dutch Court for the dumping of the Probo Koala waste in Abidjan.

First instance

In the initiating writ of summons the Stichting argued that oil trader Trafigura had acted unlawfully towards the individuals who had sustained (health) damage because they had been in contact with the toxic waste. In 2006 this waste had been exported on board of the Probo Koala (a vessel chartered by Trafigura) from Amsterdam to Abidjan (Ivory Coast), where it was dumped in several locations in the city.

With the Court’s judgment (in Dutch) 18 April 2018 the proceedings of the Stichting failed for procedural reasons.

Appeal

On appeal the Stichting filed a large number of objections (grounds for appeal) to the judgment, all of which succeeded. The grounds for appeal presented by Trafigura all failed.

In its ruling the Court of Appeal held, among other things, that the Dutch Court is competent to hear and decide on the Stichting’s claims, both against Trafigura Beheer B.V. and against Trafigura Limited (paragraphs 3.6-3.15).

The Court of Appeal furthermore concluded that Ivorian substantive law does not oppose the remedy requested under Dutch formal law (paragraphs 3.16-3.18).

The Court of Appeal decided that there was a similarity between the interests of the individuals represented by the Stichting as referred to in Section 3:305a.1 (former) Civil Code (paragraphs 3.19-3.26). It is relevant that the Court of Appeal reasoned that it is sufficient for the ‘interests at stake to be suitable to be joined, to promote efficient and effective legal protection’ (paragraph 3.24). Relevant is also that, stating grounds, the Court of Appeal set aside Trafigura’s arguments regarding the relief sought as amended in the pleadings in the first instance (paragraph3.20-3.23).

The safeguard requirement of the last sentence of Section 3:305a.2 (former) Civil Code (paragraphs 3.27-3.43), too, has been satisfied according to the Court of Appeal. It is important to note that:

  • The Court of Appeal did not think the financing arrangement inadmissible (paragraph 3.28);
  • The Stichting has enough ‘knowledge, experience and skills’ with the members of the board and the Supervisory Board (paragraph 3.32);
  • It cannot be assumed that the records of the Stichting are defective, as the Court had concluded earlier (paragraph 3.33);
  • The Stichting’s articles of association comply with the requirements of the Claim Code 2011 (paragraph 3.33) by which ‘ultimately, […] it [is] decisive whether the facts and circumstances of the case, considered in their mutual context and connection, are sufficient to justify the conclusion that the safeguard requirement has been met” (paragraph 3.42);
  • It is plausible that ‘a (sufficiently sizable) group of individuals […] [alleges] to have sustained damage that has not yet been reimbursed (in full) (paragraph 3.33);
  • The Stichting has reduced the risk that any compensation will not benefit individual victimes to an acceptable level (paragraphs 3.34-3.37 and paragraph 3.41);
  • Individual victims could also benefit from a favourable outcome of these proceedings ‘without availing themselves (in other respects) of the efforts of the Stichting’ (paragraphs 3.38-3.39).

Continuation

On 11 July 2020 Trafigura informed the Stichting it would be filing appeal in cassation with the Supreme Court against the ruling of 14 April 2020 that was given in favour of the Stichting. This means that the proceedings will not be resumed before the court and the Court of Appeal of Amsterdam, but before the Supreme Court. Disappointing, as proceedings before the Supreme Court will take (much) longer than a year. The Supreme Court will decide whether the ruling of the Court of Appeal of Amsterdam can be upheld. Only after the Supreme Court has ruled in favour of the Stichting, will Trafigura have to render account before the Dutch Court for dumping the Probo Koala waste in Abidjan.