Total Uganda: the TGI declares itself incompetent in favor of the commercial court

January 30, 2020 – The Nanterre tribunal de grande instance has just rendered its decision concerning the urgent action brought by Friends of the Earth France, Survie and four Ugandan associations (AFIEGO, CRED, NAPE / Friends of the Earth Uganda and NAVODA) against the Total group concerning its oil mega-project in Uganda (1). This is the very first court decision on the basis of the law on the duty of care of multinationals (2). Surprisingly, the judges considered that the file did not fall within their jurisdiction but that of the commercial court. They, therefore, did not consider the associations’ requests. Friends of the Earth France and Survie strongly contest this decision, which also has a negative impact on all future cases, and plan to appeal.

Friends of the Earth France, Survie, AFIEGO, CRED, NAPE / Friends of the Earth Uganda and NAVODA, represented by Me Louis Cofflard, Me Céline Gagey and Me Julie Gonidec, had summoned Total for interim measures (3) for breach of the new obligations which fall to him within the framework of the law on the duty of vigilance, and had asked the court to order the multinational:

• on the one hand, to remedy the shortcomings of its current vigilance plan, which does not include any identification of risks or specific measures concerning its activities in Uganda,
• on the other hand to effectively implement urgent measures in order to respond to the violations and risks of violations observed in Uganda and thus improve the a lot of the populations affected.

In view of the social and environmental emergency of the situation in Uganda, the six associations had chosen to seize the judge of summary proceedings of the tribunal de grande instance of Nanterre, which had allowed to have a hearing quickly, on December 12 ( 4). However, the three judges seized of the case considered that this litigation does not come under their jurisdiction but that of the commercial court, taking up the arguments of the lawyers of Total. According to them, the publication of a vigilance plan would, therefore, fall within the scope of “disputes relating to commercial companies” for which only the Commercial Court has jurisdiction, regardless of whether the applicants are not traders.

The six associations strongly oppose this interpretation of the law. The Commercial Court is a jurisdiction created so that traders (are lay judges) do justice for disputes between traders.

In the present case, we are dealing with serious human rights and environmental violations. It, therefore, seems completely unrealistic to consider that the commercial court is the appropriate jurisdiction to compel Total to take the necessary measures to put an end to these attacks.

Juliette Renaud, campaign manager on the Regulation of multinationals at Friends of the Earth, comments: “We are not only very disappointed not to have a decision today forcing Total to effectively prevent the continuing human rights abuses in Uganda, but also we do not understand the reasoning of the judges who refer the case to the jurisdiction of the commercial court. This is not a question simply relating to the management of the company as Total has argued: it is absurd that company representatives elected by their peers are the most capable of judging a such a dire situation where entire lives and ecosystems are threatened! Every month that goes by is time wasted in putting an end to the serious human rights violations that Total is causing with this mega-oil project in Uganda, and preventing the occurrence of new violations. “

Thomas Bart, a Survival activist who coordinated the Uganda field investigation, added: “This decision is extremely negative for the present case, as well as for future court orders that will use this law. The central prevention objective that was at the heart of the law is therefore left aside. However, the court did not rule on the non-compliance with Total’s obligations, both on the content of its vigilance plan and on the violations currently underway and to come in Uganda. This decision in no way contradicts our accusations against Total, but prevents human rights violations from ending today. “

Thomas Bart

The tribunal de grande instance nevertheless seems to recognize that it has jurisdiction over actions for compensation which could be brought on the basis of the law on the duty of care. In other words, the civil court apparently considers that it will only be able to judge the responsibility of companies in the case of damage that has already occurred, and not in the context of legal actions aimed at preventing future serious infringements of rights. and the environment which should be tried by the commercial court.

It seems inconsistent to say the least that it is not the same jurisdiction which is competent for all legal actions based on the law on the duty of vigilance. The associations therefore plan to appeal this decision.

Friends of the Earth France and Survie also recall that pressure and intimidation have increased on the ground, in particular for the two representatives of the affected communities who had come to testify in France in December, and a member of one of the Ugandan partner associations (5).

Notes:

[1] For more information on this project and its impacts, see the Friends of the Earth and Survival investigation report https://survie.org/IMG/pdf/rapport_totalouganda_at_survie2019.pdf and the website www.totalautribunal.org .

[2] Law n ° 2017-399 of March 27, 2017 relating to the duty of vigilance of parent companies and ordering companies. Available here

[3] See our press release of October 23, 2019:

[4] See our press release of December 12, 2019: https://survie.org/themes/economie/multinationales/article/total-ouganda-premiere-audience-histor-sur-le-devoir-de-vigilance

[5] See our press releases of December 14, 2019 https://survie.org/themes/economie/multinationales/article/nouvelle-intimidation-d-un-des-temoins-ougandais-venu-dans-le-cadre-du- trial

of December 26, 2019 https://survie.org/themes/economie/multinationales/article/deux-victimes-venues-temoigner-au-proces-de-total-sont-en-danger-en-ouganda

Originally published by the Albertine Watch friened Survie, available here

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