Uitspraken

4.23.

It is not in dispute that the Dutch court has international jurisdiction to take cognizance of the claims against the parties RDS and SPNV, established in the Netherlands. The court has international jurisdiction to take cognizance of the claims against STTC, established in London, and SPDC, established in Nigeria, if the requirements of Article 8 paragraph 1 Brussels I bis Regulation10 and of Article 7 Code of Civil Procedure (CCP), respectively, have been met. STTC and SPDC contest that these requirements have been met and argue to that end that the actions of each of the defendants, especially considering the separate entity doctrine under Nigerian company law, must be distinguished, while a joint processing of the claims is not efficient in the opinion of STTC and SPDC, as the claims against ‘anchor’ defendant SPNV have no chance of succeeding.

8 Cf. Ina and 4 Ors v. Ukoi (2003) FWLR (Pt. 143) 382

9 Cf. Ogugu v. The State (1994) 9 NWLR (Pt 366) 1

10 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (PbEU 2012, L 351/1)

4.24.

Under Article 8 paragraph 1 Brussels I bis Regulation international jurisdiction with respect to claims brought against STTC can be assumed, if the link between the claims against RDS and SPNV are so close that a good administration of justice requires a simultaneous handling and prosecution in order to prevent contradictory decisions. These requirements should be interpreted with caution. This means, among other things, that the mere fact that divergent rulings may be issued is insufficient to prove said close link. The requirements is that the divergence may occur in the context of the same situation, both factually and at law, and that it is not required that the claims instituted against the various defendants have the same legal basis.11 The examination of the jurisdiction based on the Brussels I bis Regulation should not be limited to the assertions of the claimant. The court should take account of all of the data available to him about the true legal relationship between the parties and, if applicable, the assertions of the defendant. However, in this context there is a limitation, namely that if the defendant contests the assertions of the claimant the court does not have to provide opportunity for furnishing evidence in the context of establishing his jurisdiction.12

4.25.

Under Article 7 CCP, jurisdiction as regards SPDC can be assumed if the correlation between the claims against the various defendants is such that reasons of efficiency justify a joint handling of the claims. Since the Dutch legislator sought to follow the predecessors of the Brussels I bis Regulation when introducing and, later, amending Articles 1 through to 14 CCP,13 for the interpretation of the Community rules on jurisdiction for international jurisdiction a link should be sought, in principle, with the jurisprudence of the Court of Justice of the European Union (CJEU) regarding the Brussels I bis Regulation and its predecessors, unless it is plausible that the Dutch legislator’s intention when incorporating a Community rule was to deviate from Union-law instruments or their interpretation by the CJEU.14

4.26.

The heart of the accusation of claimants is that SPNV, STTC and SPDC acted in concert in the fundamental rights violations alleged by claimants. The claims against the three defendants are based on the same facts, circumstances and legal bases. The claims against SPNV, STTC and SDPV therefore pertain to the same situation, both factually and at law. This is especially true for the claims against the two parent companies SPNV and STTC, which both factually and legally cannot be viewed in isolation from the claims against the operating company SPDC. The court is of the opinion, like claimants, that if these related cases were to be prosecuted separately, there is a risk that contradictory decisions will be made. In light of this identical situation, factually and at law, SPDC, STTC and SPNV should have foreseen that they could have been summonsed in court in the country of establishment of a co-defendant.

11 Cf. CJEU 21 May 2015, ECLI:EU:C:2015:335 (Cartel Damage Claims/Akzo Nobel), point 17-20 and

12 Cf. CJEU 28 January 2015, ECLI:EU:C:2015:37 (Kolassa/Barclays Bank), point 58-65, and CJEU 16 June

2016, ECLI:EU:C:2016:449 (Universal Music/Schilling), point 42-46

13 Parliamentary Papers II 2002-2003, no. 3, p. 1

14 Cf. Supreme Court 29 March 2019, ECLI:NL:HR:2019:443

4.27.

The standpoint of the defendants that the joint handling of the claims is not efficient, because the claims against the ‘anchor’ defendant SPNV have no chance of succeeding, is only relevant in the case against SPDC, in which the court must test against Article 7 paragraph 1 CCP. Defendants base their standpoint regarding the chance of success of the claims against SPNV on group liability, which is not the basis of the claims. Considering the factual basis of the claims, which consists of the alleged direct involvement of SPNV in the violations of the fundamental rights invoked by claimants, which under Nigerian law have direct and horizontal effect and which can also be invoked against companies, it cannot be stated beforehand that these claims are evidently bound to fail. If and to what extent the reproaches against the ‘anchor’ defendant SPNV hold, must be assessed in the principal action.

4.28.

The invocation of STCC and SPDC of the judgment of English Court of Appeal in the Ogale case,15 in which the English court deemed it had no jurisdiction towards SPDC, cannot succeed. The check against English law, performed by the English court, is different from the check applicable in this case against Article 8 paragraph 1 of the Brussels I bis Regulation and Section 7 CCP.

4.29.

As has been considered above under 4.20 and 4.22, claimants should institute legal proceedings with the exclusively competent Federal High Court or the High Court in the sui generis proceedings, to which the FREP Rules apply, if they were to institute legal proceedings in Nigeria. The court views the exclusive jurisdiction referred to under 4.20 and 4.22 for such proceedings before the Federal High Court or the High Court as a rule of territorial jurisdiction for instituting such proceedings in Nigeria. There is no written or unwritten Dutch international private-law rule that requires the conclusion to be drawn that this Nigerian rule of territorial jurisdiction stands in the way of the Dutch court having jurisdiction – as has been established above – as regards all defendants, taking cognizance of the claims based on a direct invocation of fundamental rights, as invoked by the claimants. Claimants can therefore also institute proceedings with the Dutch court for their claims directly based on the fundamental rights as stated in 4.5, in which they claim redress in the form of public apologies and a declaratory decision.

4.30.

The claims in the procedural issue relate to two categories of documents from the discovery phase in the American proceedings: the intended trial exhibits and intended trial depositions (claim i) and ii)) and the CDST documents (claim iii)). At the hearing, claimants extended their claim to the unredacted version of the minutes of the meeting of the CMD of 7 November 1995, of which defendants submitted a redacted version to the proceedings.

4.31.

Claimants state that the requirements of Section 843a CCP have been met, whose subsection 1 determines that, at their own expense, those with a legitimate interest can claim perusal or a copy or excerpt of specific documents about a legal relationship to which he or his legal predecessors are party from those who have these documents at their disposal

15 Lungowe and Ors v. Vedanta resources Plc and Konkola Copper Mines Plc (2017) EWCA Civ 1528, (2017)

the intended trial exhibits and intended trial depositions (claim i) and ii))

4.32.

These elements of the claim pertain to the intended trial exhibits and intended trial depositions designated as such by the plaintiffs in the discovery of the American proceedings. These documents have been produced by the companies belonging to the Shell Group that were party to the American proceedings, some of which have been marked as confidential by them. These documents had to be returned or destroyed within 30 days from termination of these proceedings under the confidentiality agreement between the claimants and the relevant Shell companies.

4.33.

[claimant 1] states that it cannot be justified that she, considering the fact that she is continuing her legal battle in the Netherlands, does not have access to a key part of the evidence gathered in the United States in her own case, in which the same facts and legal principles were at issue. Claimants argue that by refusing to issue these documents, defendants attempt to gain an edge in these proceedings, which is contrary to the substantive fact-finding which should be carried out in legal proceedings and to the principle of equality of arms, as enshrined in Article 6 ECHR, of which Section 843a CCP seeks to be an implementation. They wish to use the claimed documents for the further substantiation of their claims in these proceedings and possibly other claims submitted based on the same body of facts.

4.34.

4.35.

The claimed intended trial exhibits were previously issued in the American proceedings under the confidentiality agreement. Therefore, they exist and it is not in dispute that defendants still have access to them. The claimed categories of documents, the intended trial exhibits and the intended trial depositions, regard a large number of

16 Supreme Court 26 October 2012, ECLI:NL:HR:2012:BW9244, (X/Theodoor Gilissen Bankiers NV.)

1. the Nigerian regime was responsible for the extrajudicial execution, torture and battery,

2. SPDC was co-responsible under the concepts of aiding and abetting, conspiring, joint venture responsibility and responsibility for ratifying,

3. the parent companies and [director of SPDC] were co-responsible for the actions of SPDC under the concepts of agency liability for SPDC, aiding and abetting SPDC, conspiring with SPDC.

4.36.

Since with respect to the intended trial exhibits and intended trial depositions the requirements of legitimate interest and specific documents from Section 843a subsection 1 CCP have not been met, claims i) and ii) must be rejected. This means that the court will not be able to discuss the other points of dispute, regarding the other requirements of Section 843a CCP subsection 1 and the existence of compelling reasons as stated in subsection 4 of this provision.

4.37.

The CDST documents claimed under iii) are the documents pertaining to the tribunal, which in the privilege log in the discovery of the American proceedings have been described as Communications from counsel regarding proceedings before the Ogoni Civil Disturbances Tribunal. These are (i) the trial reports, the reports of the attorneys of the office of [attorney 1] , who had been hired by SPDC to monitor the proceedings before the tribunal (see also below under VI.1.a), and (ii) documents which reported on the content of the trial reports within SPDC or wider within the Shell Group. After defendants had submitted the trial reports to the court, claimants reduced their claim to the non-submitted category ii) CDST documents designated in 3.3 under iii). The dispute is limited to these documents, which defendants have not issued.

4.38.

The argument of defendants that the CDST document did not need to be submitted in the American proceedings is unsuccessful. The determining factor is if they, under Dutch law are obliged to issue a copy of these documents pursuant to Section 843a CCP.

4.39.

Since claimants accuse defendants of involvement and interference in the proceedings against their husbands, they have a legitimate interest in obtaining a copy of the internal documents, which are used to report on the content of the since submitted trial reports within SPDC or wider within the Shell Group. The other requirements of Section 843a subsection 1 CCP have also been met: the documents are sufficiently determined, and the defendants have them.

4.40.

Defendants subsequently invoke the confidential nature of the documents, which according to defendants provides a compelling reason not to issue a copy of the remaining CDST documents.

4.41.

A party might find a compelling reason – within the meaning of Section 843a CCP – to be upholding the confidentiality of its internal decision and thought process, including the role in this process of external advisors, if any. Whether or not in a concrete case such an invoked compelling reason exists which must lead to a rejection of the claim or application as regards that confidential information, the court must take a decision, stating reasons, after weighing all interests involved. It is for the party invoking the existence of such a compelling reason to assert and – if needed – argue convincingly for which information it is invoking the existence of its interest in confidentiality and, if required, what that interest is. The statement must be so specific that the court can form an opinion on the justification of the invocation.17

4.42.

In general terms defendants describe that the remaining CDST documents contain business confidential information. They therefore have not met the above-described requirement of a concrete and specific statement based on which the court can form an opinion on the justification of the invocation of the existence of compelling reasons within the meaning of Section 843a subsection 4 CCP.

4.43.

This means that defendants must issue the CDST documents stated in claim iii) to claimants, within the claimed term of 21 days. The claimed penalty is awarded as being insufficiently disputed. The internal nature of the documents compels the court to attach the condition that claimants only use these documents for these proceedings, pursuant to Section 28 CCP. Claimants are also prohibited from issuing the documents to third parties or disclose anything about the content of these documents to third parties.

4.44.

Finally, at the hearing claimants have extended their claim in the procedural issue to include the non-redacted minutes of the meeting of the CMD of 7 November 1995, of which defendants submitted a redacted version. The court understands that claimants also wish to receive an excerpt of the redacted passages, in so far as they related to the tribunal and/or the Ogoni issue.

4.45.

At the hearing defendants explained that the redacted passages contain information which did not need to be submitted in the American proceedings. Defendants believe that this constitutes a compelling reason not to issue to entire document. With this general explanation, defendants have failed to comply with the requirement – as described above in 4.41 – of a concrete and specific statement based on which the court can form an opinion on the justification of the invocation of the existence of compelling reasons, within the meaning of Section 843a subsection 4 CCP. Defendants must issue an unredacted version of the minutes of the CMD meeting of 7 November 1995, in so far as the unredacted passages pertain to the tribunal and/or the Ogoni issue. The court attaches the same conditions as to the issuance of the CDST documents (see under 4.43).

4.46.

Since parties have both been unsuccessful on certain points, the costs of the proceedings in the procedural issue are compensated.

4.47.

Defendants invoke limitation. Parties rightfully assume that this point of dispute is governed by Nigerian law, the law that governs the claim (see Book 10 Section 14 Dutch Civil Code (BW)).

4.48.

Defendants base their invocation of limitation on Order I (3) of the FREP Rules 1979, from which they believe follows that the claims of claimants expired on 9 November 1996. Defendants argue that an exception to the limitation period, as provided for in the FREP Rules 1979, is not relevant here. They also argue that, in so far as claimants base their claims on tort, their claims have lapsed.

4.49.

Claimants initially took the standpoint that the limitation issue was governed by Order III of the FREP Rules 2009. At the appearance claimants changed their standpoint to the standpoint that the FREP Rules do not apply at all to their claims, which are directly based on the NGW (1979) and the ACHPR. They assert that their claims are not subject to limitation, because neither the NGW (1979) nor the ACHPR contain a facility for limitation.

4.50.

Since claimants have brought legal action against defendants in the Netherlands, the proceedings will be held in accordance with the rules of Dutch civil procedural law. However, this does not mean that the FREP Rules cannot have any relevancy for the limitation defence as pleaded by defendants, as claimants argue. Because it does not alter the fact that claimants, since they are not initially basing their claims on tort, would have had to resort to the sui generis proceedings in Nigeria, to which the FREP Rules apply (see under 4.20 and 4.22). If the FREP Rules contain a provision which can be interpreted as a limitation facility – as envisioned by defendants – that provision from the FREP Rules becomes relevant to the defence pleaded by defendants in these proceedings that the claims of claimants have lapsed.

4.51.

From the literature and jurisprudence consulted by the court regarding Order I (3) from the FREP Rules 1979 and Order III from the FREP Rules 2009 invoked by defendants it follows that the qualification of the provision therein is or has been subject to discussion – as a possibly purely procedural condition – and that the

4.52.

In doing so, Order I rule (1) of the FREP Rules 1979 – regardless of the question whether or not the FREP Rules should be qualified as a purely procedural facility – is applied as a limitation facility in Nigerian law. Jurisprudence also refers to a statute barred action. The limitation defence pleaded by defendants thereby compels an investigation of the question whether the claims of claimants were submitted too late in the Nigerian legal practice, to which the FREP Rules 2009 apply, pursuant to Order I rule (1) of the FREP Rules 1979.

4.53.

18 (2006) 7 NWLR 588

19 Court of Appeal (Lagos Division), Denca Services Ltd. v. Leo Oleka and sons, Nigeria Custom Services (2015) 3 CLRN 33

20 Court of Appeal (Jos Division), The Gov. of Borno State et al. v. Alh. Ngabura Bukar Gadangari, (2016) NWLR 396

4.54.

In this jurisprudence, defendants see confirmation of their standpoint that a claim which has lapsed under the FREP Rules (1979) cannot be viewed as submitted in a timely fashion following the entry into force of the FREP Rules 2009. This jurisprudence however relates to claims submitted before the introduction of the FREP Rules 2009. In those cases, claims submitted under the FREP Rules 1979 were checked against the time period from Order I (3) FREP Rules 1979.

4.55.

21 (2018) LPELR-44730 (CA);

22 for the sake of readability, most references to jurisprudence are contained in the following footnotes (in italics)

23 see Adesanoye v. Adewole (2006) 14 NWLR (Pt. 1000) 242.

24 see Ugwu v. Ararume (2007) NWLR (Pt. 1048) at 509 per Muhammed, JSC; Leadways Ass. Co. Ltd. v. J.U.C. Ltd. (2016) 15 NWLR (Pt. 1536) 439) Abubakar v. B.O.L.A.P. Ltd. (2007) 18 NWLR (Pt. 1066) 319/(2007) 147

LRCN 109

25 see Ada v. NYSC (2004) 13 NWLR (Pt. 891) 639; Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 60; Olutola v.

Unilorin (2004) 18 NWLR (Pt. 905) 416; SPDCN Ltd. v. Anaro (supra).

26 see Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 536 at 575, per Onu, JSC; Chigbu v. Tonimas (Nig) Ltd. (2006) 9 NWLR (Pt. 984) 189.

27 see Jack v. UNAM (2004) 5 NWLR (Pt. 865) 208; Lafia Local Govt. v. Gov., Nasarawa State (2012) 17 NWLR

(Pt. 1328) 94

4.56.

In the rulings discussed above, all of which were passed by Courts of Appeal in Nigeria, all claims were checked against the FREP Rules that applied when they were submitted. The approach in the ruling referred to in 4.55 is also consistent with the overriding objectives referred to in 4.18 of the FREP Rules 2009, which seek to give a broad application to the protection of fundamental rights. The court sees in this Nigerian jurisprudence and in the overriding objectives of the FREP Rules 2009 reason to seek a link with the approach in the ruling referred to in 4.55. The court will therefore check the timeliness of the claim against the FREP Rules 2009 such as they applied at the time claimants instituted legal proceedings against defendants in these proceedings.

4.57.

Considering Order III of the FREP Rules, the claims were submitted in time. Therefore, the defendants’ limitation defence does not succeed.

4.58.

Since the limitation defence does not succeed, the court will now address the accusations on the merits. The order for the defendants to issue documents to claimants, given in the procedural issue, does not preclude the assessment of the accusations at this time. The court will assess the substance of claimants’ accusations based on the parties’ standpoints and the documents submitted so far. If and in so far as the documents to be issued in the procedural issue give cause for claimants to furnish new facts or in any other way give cause for a further position, claimants should do this as soon as possible.

4.59.

Claimants assert that defendants are accessory to the violations of their husbands’ and their own fundamental rights by the Nigerian regime, as described in chapter 4 of the summons. Chapter 4 of the summons is entitled “the Ogoni 9- sham trial” and pertains to the arrest of claimants’ husbands, the establishment of the Ogoni Disturbances Tribunal and the further course of affairs during the proceedings up to and including the execution of the death sentences. With this reference to chapter 4 of the summons, claimants put the alleged violations of the fundamental rights during the detention, prosecution and execution of their husbands, as stated in 4.5, centre stage as the basis of their claims. The accusations stated in 3.2 under 4 through to 7 pertain to this.

4.60.

The accusations as formulated in 3.2 under 1 through to 3 – which in brief entail that Shell operated in tandem with the Nigerian regime by requesting to intervene in the protests of the local population, which in turn formed the foundation for the excessive violence of the regime; facilitated Operation Restore Order in Ogoniland and operated in tandem with the Nigerian regime – relate to the

4.61.

The accusations stated in 3.2 under 4 through to 7 do pertain to the detention, prosecution and execution of claimants’ husbands. Claimants in particular accuse defendants of the following, in which they refer to defendants jointly as ‘Shell’, as in the accusations in 3.2 under 1 through to 3:

1. Shell was involved in the proceedings and influenced the outcome by:

2. Shell offered to influence the outcome of the proceedings under the condition that MOSOP ceased its protest against Shell.

3. Shell wrongfully not used its influence in public and otherwise to induce the Nigerian government to hold a fair trial and to exercise clemency. Should could and should have done this by:

4.62.

4.63.

This accusation relates to the watching brief that was held, support to the prosecution and informal contacts with the judges of the tribunal (VI.1.a), bribing witnesses (VI.1.b) and the role of [the commander] during the proceedings (VI.1.c).

4.64.

Claimants assert that defendants’ involvement in the proceedings first and foremost is apparent from the fact that SPDC sent an attorney to the proceedings, who meticulously kept SPDC informed about the proceedings and who by means of a so-called watching brief supported the position of the prosecution. They allege that an attorney who holds a watching brief generally is in close cooperation with the prosecution.

4.65.

It is also an established fact that SPDC ordered [attorney 1] , who had previously acted as counsel for SPDC, to hold a watching brief for SPDC during the proceedings. According to the explanation of the defendants, it was not clear for SPDC in advance – in view of the tumultuous developments in Ogoniland, where SPDC held numerous installations – on what the tribunal would adjudicate. SPDC wanted first-hand information on the course of the events of the proceedings, whether accusations were made against SPDC and if so, about what. Defendants also refer to the significant international interest in the proceedings and argue that it is not surprising that SPDC, involved in the campaign by [E] to draw attention to the Ogoni case.

4.66.

A watching brief is a legal concept in Nigerian customary law in criminal cases. Hiring an attorney who will acts in that capacity is a way for a third party with an interest to stay informed about the proceedings in order to secure its interests. The party holding the watching brief observes the proceedings on behalf of his client and may work with the prosecution – with the aim of securing his client’s interests – for instance by giving information to the prosecution. However, the latter is not a rule. The party holding a watching brief may work with the prosecution and/or support it, but it is not a given. A watching brief can also be used purely for the purposes of observation and reporting back.

4.67.

Since a watching brief can take different forms, the question is what the assignment of SPDC to [attorney 1] and his attorneys was and what they actually did for SPDC at the hearings of the tribunal.

4.68.

• -

  attend the sittings of the panel on a regular basis

• -

  report the outcome of the proceedings of each sitting to Shell

• -

  in case Shell is required to testify before the panel, document and conduct the presentation of Shell’s case to the panel

• -

  persue and obtain copy of the panel’s final report, recommendation or judgment for Shell’s records.

4.69.

4.70.

Defendants argue that SPDC at that point did not know if the tribunal was an investigative tribunal or a prosecuting tribunal. According to defendants, up until the first day of the hearing SPDC had believed that the tribunal would investigate the disturbances in Ogoniland in general. Claimants find this explanation implausible. However, what SPDC did or did not know about the tribunal can be left undiscussed, since it has been established that [attorney 1] only held the formal position as attorney with a watching brief at the tribunal for one day.

4.71.

4.72.

4.73.

Attorneys of [attorney 1] ’s office subsequently attended the proceedings and reported back to SPDC about each hearing day in the trial reports, submitted to the court by defendants. According to defendants, these attorneys ceased to play an active role in the proceedings from the second day, but [attorney 1] retained a watching brief in case it would be legally necessary if allegations were made against SPDC. Defendants argue that [attorney 1] did not actually fulfil that role.

4.74.

There are no concrete indications that [attorney 1] ’s colleagues who attended the proceedings did something other than – in accordance with the assignment of SPDC – to observe the proceedings and report back to SPDC. From the second day of the proceedings, they ceased to fulfil the formal position of attorney with a watching brief. Both the original assignment and the adjusted assignment after the first day of the hearing of SPDC entailed that the proceedings needed to be observed and that information needed to be collected for SPDC. The original assignment also entailed that any appearance of SPDC before the tribunal had to be prepared and supported. Cooperation with or support to the prosecution did not form part of the assignment. The reports of [attorney 1] ’s colleagues to SPDC also do not make mention of any cooperation or contacts with the prosecution.

4.75.

In support of the alleged cooperation with the prosecution, claimants also refer to the written statements of the acquitted defendant [F ] 30 and of two attorneys of other defendants, [attorney 3] 31 and [attorney 4] .32 These state that the attorneys of [attorney 1] ’s office always sat in the front row next to the prosecution and exchanged information with him during the hearings.

4.76.

The written statement by [attorney 1] ,33 submitted to the proceedings by defendants, state that the tribunal held hearings in a space/room not equipped as court room. The written statement by [attorney 1] also states that when he attended the hearing of 21 February 1995, [attorney 1] sat in the front row together with the prosecution and with [attorney 2] , the attorney of [E] , [F ] and [G] . According to [attorney 1] ’s statement, they sat in the front row due to their seniority and that the other attorneys were sitting behind them.

4.77.

30 Statement dated 2 May 2017

31 Statement dated 15 June 2017

32 Statement dated 16 June 2017

33 Statement dated 19 February 2018

34 [the representative] , p 33, marginal number 11.5

4.78.

In light of the foregoing, the accusation that defendants tried to influence the proceedings by holding a watching brief and tried to support the prosecution cannot succeed due to the lack of a factual basis. Therefore, the court will not assess the provision of evidence in the form of hearing witnesses, as offered by claimants.

4.79.

4.80.

Defendants vehemently contest the alleged informal contacts. They argue that they have not seen any evidence of the alleged dinner, which they state never took place. They indicate that the senior staff club of SPDC was accessible to many people and that [E] also belonged to this club. Membership was not restricted to SPDC employees. Defendants also indicate that Nigeria is a society of rumours and that at the time of the proceedings, the rumour mill was set in motion with unsubstantiated claims. Defendants emphasise that these are events that took place a long time ago and find it peculiar that it was not until 2017 that statements were made about the alleged informal contacts for the first time.

4.81.

From the written statements referred to in 4.79 it follows that the alleged informal contacts should have been known from the outset, because they had allegedly been reported on in the newspaper and because the attorneys were aware of these contacts through the informants hired by them. It is remarkable that not a single lead for these informal contacts can be found in the reports of the observers and independent organisations, who at the time monitored the proceedings and spoke with the parties involved and were critical of the independence of the tribunal. Furthermore, the news article on which [attorney 4] has apparently based his claim has never been found. Apart from that, that which has been asserted about the informal contacts – even if they had taken place – are insufficient to assume that defendants influenced the course of the proceedings through these contacts. The court has also taken account of the fact that claimants did not contest the explanation of defendants that the senior staff club of SPDC was accessible to many people and that membership was not restricted to SPDC employees; [E] was also a member. There is no room for a further provision of evidence in the form of hearing witnesses, as offered by claimants.

4.82.

In conclusion, the accusation regarding holding a watching brief, supporting the prosecution and informal contacts with the judges of the tribunal is unsuccessful.

4.83.

Claimants allege that defendants influenced the outcome of the proceeding by bribing witnesses to make incriminating statements. According to witnesses, false statements of these bribed witnesses were decisive for the conviction of the Ogoni 9 and these statements played a role in the arrest and detention of their husbands.

4.84.

In order for this accusation to succeed, it is required first and foremost that the alleged involvement of SPDC in bribing witnesses is established as an incontrovertible fact. Secondly, it is required to establish as an incontrovertible fact that the statements of these bribed witnesses played a role in the conviction and/or arrest and detention of claimants’ husbands.

4.85.

Claimants base the alleged involvement of SPDC in bribing witnesses on the affidavit of [witness 1] produced by claimants and on the witness statement of [witness 2] in the [claimant 1] proceedings.

4.86.

It is an established fact that [witness 1] and [witness 2] , who had made incriminating statements about [E] and others before the police, made a supplementary affidavit at the offices of one of the defendants’ attorneys on 16 and 27 February 1995. In the affidavits they stated – in brief – that they and several other witnesses had been pressured by the main witnesses for the prosecution, [witness 3] ( [witness 3] ) and [witness 4] ( [witness 4] ), to sign a false, incriminating statement against [E] , [F ] and MOSOP officials. [witness 1] identifies other, also bribed, witnesses: [witness 5] ( [witness 5] ), [witness 6] ( [witness 6] ), [witness 7] ( [witness 7] ), [witness 8] ( [witness 8] ), [witness 9] ( [witness 9] ) and [witness 10] ( [witness 10] ).

4.87.

4.88.

4.89.

From their reference to the affidavit of [witness 1] and the statement of [witness 2] , as further explained by claimants during the appearance of the parties, it follows that claimants allege that SPDC had been involved in bribing the witnesses [witness 1] , [witness 2] , [witness 5] , [witness 6] , [witness 7] , [witness 8] , [witness 9] and [witness 10] because (a) [attorney 1] was present on orders of SPDC and/or a representative from SPDC

4.90.

Defendants vehemently contest the alleged involvement of SPDC in the bribing of witnesses. They refer to the written statement of [attorney 1] of 19 February 2018, in which he denies any and all involvement in the alleged bribing of witnesses. They also refer to the fact that [attorney 1] looks very different than the description of [attorney 1] by [witness 2] in his statement in the [claimant 1] proceedings. Considering this defendants believe the statement of [witness 2] is not reliable.

4.91.

4.92.

From the remarks of the president of the tribunal (see under 4.91) and from the Evidence Act 1990 the court deduces that the incriminating written witness statements and the affidavits of [witness 1] and [witness 2] in principle cannot contribute to the evidence in the proceedings. Contribution to the evidence in the proceedings requires the witnesses to be heard in person before the tribunal. [witness 1] and [witness 2] were not heard as witnesses before the tribunal; according to the explanation of claimants unchallenged by defendants

4.93.

From the trial reports issued to SPDC by [attorney 1] and his colleagues it follows that on 16 May 1995 [witness 3] was questioned as a witness by the tribunal. During the cross-examination he denied that Shell, the Rivers State government and he personally had paid [witness 2] N 30,000. From these trial reports it also follows that the bribed witnesses identified by [witness 1] and [witness 2] , namely [witness 5] , [witness 6] and [witness 10] , had been heard as prosecution witnesses before the tribunal. However, it is unclear what they stated and if and to what extent their statements contributed to the convictions of claimants’ husbands.

4.94.

4.95.

4.96.

4.97.

4.98.

Based on the established facts and the evidence submitted to the proceedings, no final assessment can be made about this accusation. Claimants are allowed to give evidence for their assertions – contested by defendants and supported by reasons – regarding the involvement of SPDC in bribing witnesses and using the statements of these witnesses in the convictions and/or arrest and detention of their husbands. The latter must be established for each of the husbands. Claimants are allowed to give evidence that:

( i) SPDC was involved in bribing the witnesses [witness 1] , [witness 2] , [witness 5] , [witness 6] , [witness 7] , [witness 8] , [witness 9] and [witness 10] , because

( ii) the statements of the witnesses bribed with the involvement of SPDC played a role in:

4.99.

Claimants highlight the role of [the commander] , the commander of the Rivers State Internal Security Task Force, during the proceedings (see in 2.31), which was criticised by [the representative] . In addition to the conduct observed by [the representative] , claimants state that [the commander] was responsible for the torture and degrading

36 [the representative] , p. 66

4.100. The court concurs with defendants that this accusation is unfounded. There is no ground to attribute the conduct of [the commander] during the proceedings to SPDC and/or the other defendants in any way, or to assume any involvement of defendants in this conduct. This inference cannot be based on established facts nor follows from claimants’ assertions. The court explains this as follows.

4.101. Claimants attach great weight to the inter-office memo referred to in 2.20 from SPDC’s [head of Intelligence East] dated 25 February 1994 and the fact that [the commander] led Operation Restore Order Ogoniland and allegedly announced in public that he was acting on orders of Shell. Defendants have contested the latter, supported by reasons, and explain that the payments referred to in the memo were ‘field allowances’ charged to SPDC by the Nigerian authorities for assistance rendered for protection against the persistent and increasingly violent protests targeting SPDC before it ceased operations in Ogoniland.

4.102. Referencing the written statements, including a statement of [witness 11] , in the [claimant 1] proceedings, claimants state that SPDC also paid [the commander] during the proceedings. [witness 11] has stated that he witnessed three instances where he saw money being handed to [the commander] by SPDC, twice by [Z] . However, these statements – which defendants contest as being true and reliable, supported by reasons – pertain to the alleged payments in connection with Operation Restore Order Ogoniland.

4.103. The court notes that it is unclear what the basis is for paying the field allowances to [the commander] , referred to in the inter-office memo. The court will ignore this, as it has not been asserted, nor is there any evidence that there is a connection between these payments and the role of [the commander] during the proceedings. Nor do the statements produced by claimants show proof of any payment from SPDC to [the commander] during or in connection with the proceedings. From that which claimants present about the contacts between SPDC and [the commander] in the years before the proceedings can only be deduced that [the commander] was involved in operations of the Nigerian government in the vicinity of the installations of the joint venture in Ogoniland and that SPDC paid him in the form of field allowances. Even if [the commander] viewed himself as a protégé of the Shell Group this does not mean that defendants were involved in [the commander] ’s actions during the proceedings in any way. To be able to draw that conclusion there have to be facts and circumstances from which it follows that defendants tried to influence the proceedings via [the commander] or were involved in [the commander] ’s actions during the proceedings in any other way. It has not been asserted, nor is there any evidence that such concrete facts and circumstances occurred.

offer to influence the proceedings on the condition that MOSOP ceases it protest against SPDC

4.104. It is an established fact that in early 1995 [director of SPDC] spoke with the brother of [E] , [H] . Claimants assert that on that occasion [director of SPDC] offered [H] to influence the proceedings on the condition that MOSOP would cease its protest against SPDC.

4.105. In the Nigeria Update of 6 April 1995 [director of SPDC] reported on the conversation he had had that day with the British ambassador [the British ambassador] , who he referred to in the report as BHC [acronym of British High Commissioner]. This report states that [the British ambassador] had spoken with [H] and conveyed the message that [H] wished to speak with [director of SPDC] . [director of SPDC] writes:

“I told the BHC that I might be prepared to meet him [ [H] , addition by the court] on an informal basis to see what he had to say, and the BHC suggested that he introduce me to him during the Queen’s Birthday celebrations at his house later this month.

4.106. On 20 April 1995 [director of SPDC] spoke with [H] and [attorney 5] , one of the attorneys of [E] , at the residence of the British ambassador. The Nigeria Update of 24 April 1995 states the following about this:

“We discussed the matter of opening a dialogue between Shell and the Ogoni people. I made the point in many ways that I felt that I could not be expected to open up Shell to a dialogue when we had learned from experience to distrust the methods employed by [E] against us. His use of the media to propagate what we felt were lies or distortions of the truth to a gullible world made us very wary indeed. I told him that they would have to modify their stance before we could contemplate a useful dialogue.

4.107. [H] was ordered by his brother not to accept the proposal of [director of SPDC] in a letter dated 13 May 1995. In the letter [E] presented two scenarios for discussion with [director of SPDC] , namely:

( I) “We remain in jail. A. The cause grows. Junior’s recent visit to the US was a smasher. He met [… 2] , [… 2] (…) Along with the Goldman Foundation, Shell could be facing an expensive call for the boycott of its products. (…). B. Within Nigeria, the other oil- producing area’s who have been working to see if MOSOP’s non-violent stand will draw Shell out of its cocoon, decide that force is what Shell wants. There will be trouble on the oilfields, losing Shell a lot of its investment. Military force will not secure them peace on the oilfields. (…)

( II) Shell uses its considerable clout to (i) CREATE an Ogoni State. We will have something to show to the Ogoni people & assuage their anger.

(ii) Shell gets the Tribunal stopped or the Fed Attorney General to enter a “nolle prosequi” using the fact of my ill-health and inability to go on with the trial. Shell’s stock in Ogoni rises. The human rights and writers lobbies which have stood solidly behind us abroad are disarmed. Shell gets a breathing space.”

4.108. [H] discussed this letter with [director of SPDC] on 13 May 1995. [director of SPDC] reported on this in a Note for File:

4.109. In an inter-office memorandum to [Y] , then Area Coordinator at SIPC dated 22 August 1995 [director of SPDC] wrote the following about this:

“I offered [H] the possibility that we would be prepared to put in some humanitarian aid (medical?) in exchange for the undertaking by his brother to soften their official stance on two key

4.110. From the reports and letter referred to in 4.105 through to 4.109 it follows that [director of SPDC] made a distinction in the conversations with [H] between two different subjects: 1) the response of SPDC to the request to intervene in the proceedings and 2) a dialogue with a potential contribution from SPDC to Community Development and the Environment projects. These reports state as regards the first subject that [director of SPDC] repeatedly made it clear in his conversations with [H] that SPDC would not intervene in the proceedings, as requested by [H] . See for instance the remark in the report referred to in 4.108: “(…) his demand for Shell to become involved with political and legal matters of Nigeria was wrong and Shell would not do it (…) no interventions in the tribunal process.” This is in line with [director of SPDC] ’s remark to the British ambassador before he spoke with [H] that SPDC would not in any shape or form wanted to become involved in the [E] proceedings (see 4.105). From the reports it follows that only potential humanitarian and medical aid to [E] was discussed “to soften their stance on two key issues for us” (see 4.109). The request to intervene in the proceedings was always unconditionally answered in the negative, with the explanation that SPDC would not get involved in such issues, because it went against its business principles. But [director of SPDC] did set conditions to the second subject of discussion, namely a dialogue with a potential contribution from SPDC to Community Development and the Environment projects. These are the conditions to which claimants refer. However, these conditions only pertain to the second subject. One of these conditions was, incidentally, “not urging Shell becoming involved in Nigerian politics against its business principles” (see 4.108). This confirms that during the talks [director of SPDC] made it clear that under no condition would SPDC intervene in the proceedings.

4.111. In their written statements, [H] and [attorney 5] , however, establish a link between the conditions set by [director of SPDC] and the rejection of the request to intervene in the proceedings. The court is of the opinion that these statements cannot detract from the conclusions drawn in 4.110. The court considers that the above-mentioned reports of SPDC were usually drafted on the day of the talk or shortly thereafter. Claimants accept these reports of [director of SPDC] as being correct in all other points. The written statements of [H] and [attorney 5] , however, were made years after the fact and reflect the memory of the discussions held at the time. Without further explanation – which is lacking – the court sees no reason to assume based on these written statements that the reports of [director of SPDC] are not an accurate depiction of the talks. There is no room for a further provision of evidence regarding this issue, as offered by claimants.

4.112. The court concludes there is no ground for the accusation that defendants offered to influence the proceedings on the condition that MOSOP would cease its protest against Shell.

non-intervention in the proceedings

4.113. Claimants accuse defendants of not using their influence, either publicly or otherwise, to induce the Nigerian government to hold a fair trial and to exercise clemency for the Ogoni 9. According to claimants, defendants could and should have done so by:

4.114. It is an established fact that throughout the proceedings and before the execution of the sentences, defendants received requests from persons, legal entities and organisations to intervene in the proceedings (see in 2.29). Defendants argue that they had and have the conviction that a commercial party should not intervene in a domestic legal affair of a sovereign state. They consistently promoted this starting point, which forms part of their Business Principles, or so argue defendants, who furthermore explain that they (a) monitored the proceedings and (b) used quiet diplomacy.

monitoring the proceedings

4.115. As has been stated before, SPDC monitored the proceedings through attorneys of [attorney 1] ’s office. They received reports on the hearings. Since the Nigeria Update dated 30 May 1994, which mentioned that [E] had been arrested the weekend before and detained on suspicion of the murder of our Ogoni leaders, [director of SPDC] regularly discussed the current status of affairs of the proceedings and developments therein in the Nigeria Updates. In these Nigeria Updates, [director of SPDC] also reported on that which was discussed regarding the proceedings in his talks with the Dutch and British ambassadors. For instance, he heard from the British ambassador that a British judge had attended a part of the proceedings at the request of the British government in order to verify that the trial was fair. In the Nigeria Update of 4 June 1995 he stated:

4.116. [director of SPDC] sent his reports to the Dutch and British Service Companies, SIPC in London and (with a carbon copy) to SIPM in The Hague (see in 2.19). At a meeting in London in February 1993, attended by representatives of the Service Companies and SPDC, [E] and MOSOP were discussed, which in the minutes were designated as a risk to the international reputation of the Shell Group for which urgent attention was asked. The minutes state that the following was agreed:

4.117. It is not in dispute that the parent companies were aware of the proceedings and the worldwide attention for the proceedings. Defendants, including the parent companies, were aware of the criticism of the independence of the tribunal and the fairness of the proceedings, which were expressed in the reports of [the representative] , Human Rights Watch and Amnesty International. It is also established that defendants – especially the parent companies – were called upon by various NGOs to intervene in the proceedings.

Quiet diplomacy

4.118. Defendants have explained that they chose to use quiet diplomacy. What the Shell Group did can be divided into three components, namely the contacts that [director of SPDC] had during the proceedings with Nigerian officials (VI.3.b.i), other contacts of officials of entities of the Shell Group regarding the proceedings (VI.3.b.ii) and the events in the period between the sentence and its execution (VI.3.b.iii). The court uses the content of the Nigeria Updates, other reports of [director of SPDC] and reports of talks within the Shell Group as a basis, on which both claimants and defendants have based their factual standpoints. The court also uses the witness statements from the [claimant 1] proceedings of [director of SPDC] , [then chairman of CMD] and [Group Managing Director] , who was Group Managing Director in the relevant period, and on which both parties rely.

4.119. On 22 July 1995 [director of SPDC] spoke with [the General] . On the previous day, he had talked to the British ambassador about his upcoming meeting with [the General] . At that time, he heard from the British ambassador that the second group of attorneys at the tribunal had quit because they felt they could not do their jobs properly because the proceedings were being determined by the Nigerian soldiers. [director of SPDC] wrote the following about this:

“He seemed to be quite sure that [E] [ [E] , addition by the court] will be convicted, perhaps to the death penalty, to be commuted later on to life imprisonment. I told him that this would be a very unpleasant outcome for Shell, as the international outrage would certainly involve us. The time between conviction and commutation of the sentence would also be critical to us. There is also the link to the coup plotters: if some of them are shot, then the outside world will, probably justifiably, conclude that [E] may also be executed, and therefore renewed internationalisation of the [E] /Ogoni issue could be triggered off even before that verdict is announced.”

4.120. In preparation of the talk with [the General] , [director of SPDC] spoke with [X] , the second in command in Nigeria on 21 July 1995. He told him:

4.121. The court deduces from this that [the General] wished SPDC/Shell Group would support the Nigerian authorities in the Ogoni issue and that in response to this [director of SPDC] highlighted the non-political course of SPDC/the Shell Group. It does not become apparent that during this meeting with [the General] [director of SPDC] addressed the right of the defendants to a fair trial. In the [claimant 1] proceedings, [director of SPDC] stated that he had addressed this issue in other meetings with Nigerian officials. As regards the question whether or not defendants had expressed their opinion, whether publicly or otherwise, during the proceedings about the right of the defendants to a fair trial, [director of SPDC] stated as follows in the [claimant 1] proceedings:

4.122. On 16 March 1995, officials of other Shell entities, including [head of Public Affairs] , head of Public Affairs of the Shell Group (hereinafter: [head of Public Affairs] ), spoke with the Nigerian ambassador in London about the proceedings. The Nigerian ambassador noted about [E] : “there is every chance he will be found guilty” and talked about the ‘misinformation’ surrounding the proceedings of [XX] . According to the report of this meeting:

“He [ the Nigerian ambassador, addition by the court] then called on Shell to put head together with the Mission to effectively debunk all the false allegations peddled against Nigeria and Shell over Ogoni and [E] .

4. In his reaction Mr. [head of Public Affairs] said that Shell was aware of the vicious campaign embarked upon by The Body Shop and other groups to discredit Shell and Nigeria. He informed HC that Shell has been inundated with hundreds of letters of protest and abuse regarding their operations in Nigeria. He noted that, apart from the Body Shop, Green Peace, Action Earth, Church groups, Amnesty International as well as Shell Shareholders have all been involved in the campaign. They complain about the environment and human rights issue. Some of the complaints were that Shell should prevail on the Nigerian government to release [E] .”

4.123. As in the talk that [director of SPDC] had with [the General] , referred to in 4.120, the Nigerian side urged collaboration, with [head of Public Affairs] highlighting the international criticism of the proceedings and the complaint that Shell was not pressuring the Nigerian authorities to release [E] . During this talk, it was agreed that one of the reports of the independent organisations about the proceedings would be handed to the Nigerian ambassador. In doing so, criticism of the proceedings was raised both during and as a result of this talk. No response was formulated to the Nigerian urge to collaborate on this issue.

4.124. After the tribunal had sentenced the Ogoni 9 to death by hanging on 30 and 31 October 1995, it was decided at the meeting of the CMD of 31 October and 1 November 1995 that [director of SPDC] would establish contact with [the General] to express the concerns of the Shell Group about the execution of the death sentences. [then Regional Coordinator] – then Regional Coordinator for Latin America and Africa with SPIM – would do the same with the Nigerian High Commissioner in London. [then chairman of CMD] stated the following about this in the [claimant 1] proceedings:

4.125. The choice for [director of SPDC] was explained by [Group Managing Director] as follows:

“[director of SPDC] had become a respected and trusted figure in Nigeria and, notwithstanding the criticism that he attracted to himself by raising this subject with [the General] —and you saw his note about how the President got very agitated when he did bring it up on that one occasion— [director of SPDC] , having been born in Nigeria and feeling passionate about Nigeria—you know [director of SPDC] , I’m sure—was quite the best individual to express these views to the Nigerian authorities; whether the president himself, [X] or anyone else of great seniority in Nigeria.”

4.126. In the Nigeria Update of 2 November 1995 [director of SPDC] wrote about a meeting he had had with [X] on 1 November 1995. This Update states among other things that the reason for this visit was that [director of SPDC] wanted to visit [the General] :

“The visit to the Head of State [ [the General] , addition by the court] would have the objective of trying to obtain his support for clemency and the commutation of the recent sentence of death on [E] for his part in the murder of 4 Ogoni elders in May 1994.(…)

4.127. During the CMD meeting of 7 November 1995 it was decided to send [the General] a request for clemency on humanitarian grounds on behalf of the Shell Group. [then chairman of CMD] stated the following about this in the [claimant 1] proceedings:

4.128. From the foregoing, it follows that defendants made the conscious choice, also in view of their Business Principles, not to intervene in political and legal affairs of the country where they operated and to not publicly express an opinion on the proceedings, but rather opt for the course of quiet diplomacy. They acted in this fashion. In the talks with Nigerian officials, they were confronted with a wish to collaborate, which they did not fulfil. In addition, during the proceedings [director of SPDC] discussed in general terms the right to and importance of a fair trial for the Ogoni 9. In any case, in the period between the sentence and the executions, the proceedings and fate of the Ogoni 9 were viewed as an issue which affected the Shell Group as a whole instead of a local issue which only affected SPDC. Again, a conscious choice was made to not publicly submit a request for clemency. Instead, quiet diplomacy was chosen, which eventually culminated in the letter dated 8 November 1995 to [the General] on behalf of the entire Shell Group.

4.129. The accusation of claimants regarding non-intervention or insufficient intervention in the proceedings can only succeed if defendants, by monitoring the proceedings and choosing to use quiet diplomacy and not taking any other action, violated the invoked fundamental rights of claimants and/or their husbands. The assertions of claimants imply that based on claimants’ invoked fundamental rights defendants were obliged to do more than they did. But the court has not found any leads for the accuracy of said standpoint, for instance in the form of precedents or widely supported views of Nigerian jurists. Such leads were also not submitted by parties in their remarks on the content and application of the fundamental rights invoked by claimants. The conclusion of the court therefore is that defendants did not violate these fundamental rights by monitoring the proceedings and choosing quiet diplomacy.

4.130. In this opinion, the court also considered the experiences of [director of SPDC] , as reflected in 4.121, that speak for quiet diplomacy, the warnings, as reflected in 4.120, from various sides to tread carefully in raising the issue with [the General] – who did not appreciate criticism and in fact thought SPDC did not support the Nigerian government enough – and the explicit advice of [X] not to make a public request for clemency, during which [X] furthermore expressed his expectation that the death sentences would not be executed in the short term. [X] also assumed that the death sentences would be commutated in a prison sentence (see 4.126), like with the military putschists. Nevertheless, a serious and urgent attempt was made to influence the fate of the Ogoni 9 after the convictions, with the decision of the CMD to have [director of SPDC] contact [the General] and the agreement that [then Regional Coordinator] would approach the Nigerian

4.131. In addition, there are no leads to assume that proceedings would have taken a different turn and that the claimants’ husbands would not have been sentenced and executed if defendants had acted differently. As has been argued by defendants, it is highly doubtful that they had the kind of influence on [the General] claimants attribute to them and which was assumed they had at the time, for instance also by [E] (see his letter dated 13 May 1995, in 4.107) and by the ones calling on defendants to take a public or other stance about the proceedings and conviction of the Ogoni 9. From the reports of the meetings between [director of SPDC] and [the General] it follows that [the General] did not accept criticism and believed that SPDC did not support the Nigerian government enough. Those reports also mention the cash call problems; the continuous efforts SPDC had to make – and which was not contested by claimants – to induce the Nigerian government to meet the cash calls made in the context of the joint venture. [director of SPDC] summarised this in his Nigeria Update of 6 April 1995:

“There is still a strong belief amongst these people that we Shell have the power to get [the General] to let [E] off! Would that we had such power, we certainly would not have had the cash calls problems if we had!” (see 4.105).

4.133. In so far as defendants were obliged to stage any intervention based on the applicable Nigerian law, they did enough by monitoring the proceedings and choosing quiet diplomacy. The court does not say in a general sense that a company in cases like this has to employ quiet diplomacy. The court finds that defendants were not obliged to do more, as argued by claimants. The accusation that defendants did not use their influence, either publicly or otherwise, to induce the Nigerian government to hold a fair trial and exercise clemency for the Ogoni 9 therefore does not hold.

5.1.

5.2.

imposes a penalty of € 5,000 for each day that defendants remain in default of compliance with the order as stated in 5.1 following service of the judgment, with a maximum of € 50,000;

5.3.

prohibits claimants from disclosing information to third parties about the content of the documents as stated in 5.1, with the stipulation that claimants only use these documents for these proceedings and that they cannot issue these documents to third parties;

5.4.

dismisses all other applications;

5.5.

compensates the costs of the proceedings in the procedural issue in the sense that that the parties each bear their own costs;

5.6.

5.7.

rules that claimants, if they wish to have witnesses heard, have to submit the names of witnesses and the parties’ and their attorneys’ days on which they are unable to attend in the period September 2019 through to December 2019 on 5 June 2019, after which the date and time of the witness examinations is determined,

5.8.

rules that these witness examinations will take place at the court hearing of the appointed delegated judge, mr. L. Alwin, at the Court building in The Hague at Prins Clauslaan 20,

5.9.

stays any further decision.