The Federal Republic of Nigeria v Royal Dutch Shell Plc & Anor

Under Article 29 of the Brussels Regulation (Recast), proceedings concern the same cause where the basic facts and claimed rights and obligations coincide, allowing for different national legal classifications. They have the same object where, broadly understood, they pursue the same end in view. The analysis may be applied claim by claim where proceedings contain additional claims. Article 29 operates automatically once its conditions are met. Where it does not apply, a stay may be appropriate under Article 30 or the court’s case-management powers where proceedings are closely connected and risk inconsistent decisions.

The Federal Republic of Nigeria brought English proceedings against Shell, Eni and other defendants concerning alleged bribery and corruption in the procurement of oil rights relating to OPL 245. It sought financial remedies, an account of profits and declarations concerning rescission of agreements made in April 2011.

The defendants applied to decline jurisdiction under Article 29 of the Brussels Regulation (Recast), relying on related civil claims brought by Nigeria in criminal proceedings in Italy. They sought alternatively a stay under Article 30 or case-management powers, and challenged the rescission claim and permission to serve out of the jurisdiction. The central issue was whether the English and Italian claims involved the same parties, cause and object.

1. Article 29. The court declined jurisdiction over the claims against RDS under Article 29. The Italian civil claim was distinct from the criminal proceedings and was brought by Nigeria, not the public prosecutor. In any event, complete identity of parties was unnecessary; Article 29 applied to the extent that the parties overlapped.
2. The causes were the same. The basic facts were the alleged bribery connected with OPL 245. The basic claimed rights were the right not to be adversely affected by conduct involving or facilitating bribery of Nigeria’s ministers and agents, and the right to redress. Differences between Italian vicarious-liability concepts and English causes of action did not alter that conclusion.
3. The objects were also the same. Both proceedings sought redress for RDS’s alleged responsibility for the bribery and corruption, principally through financial compensation. Claims for an account of profits did not materially alter the object. The rescission declaration did not make the object different because RDS was not a party to the agreements and the declaration was not the end in view of the claims against it.
4. If necessary, Article 29 could operate in respect of overlapping financial claims on a claim-by-claim basis. Article 30 or a case-management stay could address any remaining claims. Since the Italian court’s jurisdiction was established, Article 29(3) required this court to decline jurisdiction. RDS was the anchor defendant, so jurisdiction over the other defendants also failed.
5. Alternative observations. If jurisdiction had not been declined, a stay would have been appropriate under Article 30 and, independently, under section 49(3) of the Senior Courts Act 1981 and CPR 3.1(2)(f). The proceedings were closely related, the risk of inconsistent decisions was real, and the Italian proceedings were considerably more advanced. A stay would initially have been imposed until the written first-instance judgment in Italy, with liberty to apply.
6. The court also indicated that the rescission declaration had a real prospect of success and that material non-disclosure on the without-notice service application had not been established. Those issues did not require final determination.