On November 8th 2022 Channa Samkalden, lawyer for Esther Kiobel and three other widows of executed Nigerian community leaders, announced that her clients would be ending their lawsuit against Shell... Uncertainty about the outcome, combined with the fact that the case had already been (unsuccessfully) going on for over 20 years in multiple fora, had made the four widows decide to withdraw the appeal, “not without disappointment and frustration”...

In some respects, it could be argued that the Kiobel case demonstrates the legal system functioning well... [L]egal barriers to remedy for claimants... did not play a significant role in the Dutch litigation. The court (mostly) accepted the claimants’ arguments on jurisdiction, applicable law and standing, rejected several of Shell’s initial procedural objections, and mostly focused on the merits...

However, the case also highlights structural and practical problems for claimants, even when legal barriers are overcome...

Another challenge is disclosure and access to documents held by the defendants... The court rejected [the claimants'] request [for documents] on the grounds that it did not meet the stringent specification requirements of Dutch rules on procedure and evidence... While arguably a reasonable interpretation of Dutch procedural law... the defendants, after all, had unlimited access to this documentation throughout the proceedings.

The evidence and witness statements the claimants did put forward were subject to rigorous scrutiny by the court... The standard the court seems to apply to this claim seems to be ‘beyond reasonable doubt... It is however questionable whether this is appropriate in a civil lawsuit (under Nigerian law)...

Another structural problem is that cases like this are exceptionally complex, lengthy and burdensome for claimants. Those burdens are practical, and thus financial... but certainly also mental...

In contrast, a corporate defendant like Shell does not just have more (financial) means than an individual, but it is also not subject to physical and mental limitations...

In civil law, parties are supposed to be equal, but in practice there are great, practical disparities between individual and corporate litigants. Kiobel v Shell illustrates how these can eventually amount to fundamental procedural unfairness. This may have a discouraging effect on potential claimants considering bringing their harms to court. It must in that respect be reiterated that Kiobel was a well-known case backed by a large NGO; the disparities will be all the greater for cases that do not have the same publicity and support.

For all the legal and policy proposals tackling mandatory human rights due diligence and procedural reform... there are comparatively few that address practical barriers to accountability and remedy. These could include creating victims’ funds, improving mutual legal assistance regimes, broadening possibilities for disclosure, and introducing (rebuttable) evidentiary presumptions in cases of alleged corruption...

The question... [also] remains... whether the Netherlands, and other home states of transnational companies, are willing to be advocates for those harmed by ‘their’ companies as well.