Four non-governmental organisations have petitioned The Netherlands government over their case against Royal Dutch Shell Plc (RDS) acquisition of the OPL 245 oil and gas field in Nigeria.
The groups, Human and Environmental Development Agenda (HEDA), Global Witness, Re:Common, and The Corner House, noted that RDS “is currently on trial in Milan in relation to the OPL 245 deal and the prosecution is the outcome of an investigation by the Milan Prosecutor’s Office, which was initiated as a result of a complaint submitted by three of our organisations.”
They expressed worry over an approach adopted in a recent out-of-court settlement of a major Dutch money laundering case involving ING Bank N.V.0 and said it should not be used in their own case.
“In September 2017, we submitted a complaint to the Prosecutor’s Office in The Netherlands requesting a criminal investigation of RDS, Shell Petroleum N.V. (“Shell Petroleum”) and Shell executives for offences under Dutch law relating to the deal.
“As plaintiffs, we consider ourselves to be stakeholders in the case. We are aware of the recent out-of-court settlement of a major Dutch money laundering case involving ING Bank N.V.
“For some reasons, we are concerned that a similar approach may be taken with RDS and Shell Petroleum. We hold that this would not be in the public interest unless stringent conditions are attached.”
The groups, which said they were not opposed to out-of-court settlements in cases where the defendant is ineligible for a custodial sentence, however, argued that “any settlement that does not produce a remedy proportionate to the alleged crime could not be seen as just.”
Their petition to The Netherlands Minister van Justitie, Mr. Ferdinand Grapperhaus, on Janusry 9, 2019, reads in part: “In this case, RDS and Eni are accused of paying over a billion dollars into a vast bribery scheme to pay off Nigerian officials in exchange for extremely favourable access to one of Nigeria’s most promising oil blocks.
“The cost to Nigerians of this ‘smash-and-grab raid’ on the Nigerian government (to use the phrase of the UK Crown Prosecution Service) is vast. Indeed, for some reasons, we would contend that there are strong grounds for rejecting a settlement with Shell.
“Firstly, as far as we are aware, neither RDS nor Shell Petroleum appears to have done anything to ‘earn’ an out-of-court settlement. In the recent settlement with ING Bank N.V., ING co-operated with the Prosecutor’s Office. By contrast, neither RDS nor Shell Petroleum has ‘self-reported’ any crimes that they view as related to the OPL 245 deal.
“Similarly, there are no public reports of their having co-operated with the criminal investigation into OPL 245. On the contrary, they have vigorously denied any criminality. As a consequence, the Prosecutor’s Office has had to undertake a wide-ranging investigation, presumably at considerable cost to the Dutch taxpayer.
“Should the companies now belatedly acknowledge criminality – a necessary part of any settlement – it would, in our view, be perverse to reward them by agreeing to terms that would allow them to avoid a criminal conviction by the courts.
“Secondly, a settlement with Shell would establish an undesirable precedent by signalling that the Dutch justice system is prepared to tolerate corporate recidivism. At the time that the OPL 245 deal was negotiated and bribes were allegedly paid, RDS was a party to a Deferred Prosecution Agreement with the U.S. Department of Justice following an earlier Nigerian bribery scandal.”
The groups also said any settlement without a full and clear statement of facts and admission of guilt would be contrary to the interests of open justice.
“An admission of criminality by RDS and Shell Petroleum in this case would be an admission to participation in one of the most egregious bribery schemes in history, a scheme that defrauded Nigeria of billions of dollars. The beneficiaries were two of the richest companies in the world. The victims were some of the poorest people on Earth: Nigerians.”
The petition was signed by Nicholas Hildyard (The Corner House), Luca Manes (Re:Common), Olanrewaju Suraju (HEDA) and Simon Taylor (Global Witness).