Date : 6/29/2017 10:16:46 AM
From : "Th.O.M. Dieben"
To : "Galit Raguan"
Cc : "Talya Schein" , "Shani lee Fisher" , "Vered Shpilman" , "jahae@jahae.nl" , "Marlene Mazel"
Subject : RE: re. memo and law firms [D17056-3102115]


Dear all,

Status of contact with PelsRijcken

I have received a reply from my contact at PelsRijcken. As expected, this is not a straightforward conflict check for them and they have to discuss it internally. I will let you know as soon as I hear more about the outcome of these internal deliberations. 

Feedback by De Brauw

We have also heard back from De Brauw regarding the reasons for their decision not to take the case. De Brauw has recently received quite some negative press coverage regarding their handling of a big case concerning an alleged tender fraud by (a subsidiary of) the Nederlandse Spoorwegen (Dutch Railways). As a result they have become very careful in accepting new cases (perhaps too careful) which are high-risk in terms of negative press coverage. Their assessment was that the Ziada case is probably such a case. This factor coupled with the fact that their litigation department is currently operating at full capacity has led them to decide to turn down the case.

New case by Prakken d'Oliveira against Shell

Perhaps also interesting for you to know is that the Prakken d'Oliveira firm (albeit a different lawyer) today announced that it has started civil proceedings in the Netherlands (District Court of The Hague) against Royal Dutch Shell. Prakken d'Oliveira represents three women from Nigeria who believe that Shell is liable for the death of their husbands and 6 other prominent members of the Nigerian Ogoni people in 1995 (the so-called "Ogoni-9") (for more info see https://en.wikipedia.org/wiki/Ogoni_Nine).

Some of the relevant newspaper articles can be found here:

https://www.nrc.nl/nieuws/2017/06/29/nigeriaanse-weduwes-beginnen-zaak-tegen-shell-11345568-a1564943
http://www.volkskrant.nl/economie/shell-is-medeplichtig-aan-de-executie-van-negen-activisten-aldus-hun-weduwen~a4503351/

I note in this regard that the District Court of the Hague and later the Court of Appeal had in a previous case against Royal Dutch Shell (which was, not surprisingly, also argued by Prakken d'Oliveira) ruled that Dutch courts have jurisdiction to rule on a claim of Nigerian farmers that Shell Nigeria was responsible for some oil spills. Basis for jurisdiction in this case was that the farmers had also sued the parent company of Shell which is headquartered in the Netherlands. In such a situation, Dutch Courts have jurisdiction if the claims are sufficiently connected and it would be efficient to deal with them jointly (art. 7 RV - plurality of defendants). This in itself is not very surprising. What made the case interesting is that a very good argument could be made that under Nigerian law (which was applicable in that case) the case against the parent company of Shell in the Netherlands was hopeless from the very beginning and served no other purpose then to create jurisdiction for the case against its subsidiary Shell Nigeria. These arguments were rejected, however, by both the District Court and the Court of Appeal (for the relevant interlocutory judgement of the latter see https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2015:3586; an English translation is available if you scroll further down).

I expect Prakken d'Oliveira to use the same jurisdiction "trick" in this new "Ogoni 9"-case.

Kind regards,

Thom Dieben, attorney-at-law

==== 
Thom Dieben (LLB, LLM) 
JahaeRaymakers 
Mondriaantoren
Amstelplein 40
1096 BC Amsterdam 
The Netherlands 
Tel:  +31 20 435 25 25 
Fax:  +31 20 435 25 26 
E-mail:  dieben@jahae.nl

 

Van: "Th.O.M. Dieben" <dieben@jahae.nl>
Datum: woensdag, 28 juni 2017 16:40
Aan: Galit Raguan <GalitRa@justice.gov.il>
CC: Talya Schein <TalyaSc@justice.gov.il>, Shani lee Fisher <ShanileeF@justice.gov.il>, Vered Shpilman <VeredSh@justice.gov.il>, "jahae@jahae.nl" <jahae@jahae.nl>, Marlene Mazel <MarleneM@justice.gov.il>
Onderwerp: RE: re. memo and law firms [D17056-3102115]

Dear all,

I have reached out to my contact at PelsRijcken (a partner there whom I happen to know from a case we argued together for the Dutch National Police). I will let you know as soon as I hear from them.

In the meantime, I have spoken to Mrs. Cathelijne van der Plas. Her availability for the coming days is as follows:

29-06: 10.00-12.00 CET
30-06: 9.30-18.00 CET (although she realizes this date might be unavailable on your side due to the Shabbat)

03-07: 14.30-18.00 CET
04-07: 9.30-12.00 CET
05-07: 9.30-12.00 CET
06-07: 9.30-11.00 CET, 12.00-14.30 CET
07-07: 9.30-18.00 CET (although she realizes this date might be unavailable onyour side due to the Shabbat)


Kind regards,


Thom Dieben, attorney-at-law

==== 
Thom Dieben (LLB, LLM) 
JahaeRaymakers 
Mondriaantoren
Amstelplein 40
1096 BC Amsterdam 
The Netherlands 
Tel:  +31 20 435 25 25 
Fax:  +31 20 435 25 26 
E-mail:  dieben@jahae.nl
 

 

Van: Galit Raguan <GalitRa@justice.gov.il>
Datum: woensdag, 28 juni 2017 15:03
Aan: "Th.O.M. Dieben" <dieben@jahae.nl>
CC: Talya Schein <TalyaSc@justice.gov.il>, Vered Shpilman <VeredSh@justice.gov.il>, Shani lee Fisher <ShanileeF@justice.gov.il>, "jahae@jahae.nl" <jahae@jahae.nl>, Marlene Mazel <MarleneM@justice.gov.il>
Onderwerp: RE: re. memo and law firms [D17056-3102115]

Dear Thom,

Thank you for the update.

Given this information, would you feel comfortable reaching out to Pels Rijcken on our behalf to check the feasibility of representation in this case? I realize that they may be unable to represent us for the reasons detailed in your earlier email. However, I would prefer to exhaust the inquiry rather than rule them out prematurely.

As for Mrs. Van der Plas, we would want to schedule an introductory call to briefly acquaint ourselves with her before making a final decision regarding representation. In the interim, perhaps we can work on finding a convenient time on both ends (I would need to coordinate with my colleague from the Ministry of Foreign Affairs as well). Would you prefer that I liaise directly with Mrs. Van der Plas's office regarding the technicalities?

 

Many thanks.

 

Galit

 

From: Th.O.M. Dieben [mailto:dieben@jahae.nl]
Sent: Wednesday, June 28, 2017 3:32 PM
To: Galit Raguan
Cc: Talya Schein; Vered Shpilman; Shani lee Fisher; jahae@jahae.nl; Marlene Mazel
Subject: Re: re. memo and law firms [D17056-3102115]

 

Dear all,

We have just received word from De Brauw, Blackstone, Westbroek. They have decided not to take the case. They will call Han back later to explain why. In light of the urgency of the matter we thought it best to inform you immediately, however. 

Please let us know if you would like us to contact Mrs. Cathelijne van der Plas to inform her that her firm has been selected as the civil counsel in this case or if you prefer that we reach out to another law firm for a fee quote.

Kind regards,


Thom Dieben, attorney-at-law



==== 
Thom Dieben (LLB, LLM) 
JahaeRaymakers 
Mondriaantoren
Amstelplein 40
1096 BC Amsterdam 
The Netherlands 
Tel:  +31 20 435 25 25 
Fax:  +31 20 435 25 26 
E-mail:  dieben@jahae.nl


 

 

Van: Galit Raguan <GalitRa@justice.gov.il>
Datum: dinsdag, 27 juni 2017 16:55
Aan: "Th.O.M. Dieben" <dieben@jahae.nl>, "jahae@jahae.nl" <jahae@jahae.nl>
CC: Vered Shpilman <VeredSh@justice.gov.il>, Marlene Mazel <MarleneM@justice.gov.il>, Talya Schein <TalyaSc@justice.gov.il>, Shani lee
Fisher <ShanileeF@justice.gov.il>
Onderwerp: re. memo and law firms

Dear Han and Thom,

First and foremost, I am happy to be joining the team and look forward to working together.

Many thanks for the memo you provided yesterday. It was helpful in providing information about some of the preliminary issues which could arise if – more likely when – a civil suit is indeed filed.

We have a number of additional questions, which I will briefly outline below. If you feel it is more convenient to discuss these via phone, we are happy to schedule a conference call later in the week.

1.      Could you address in more detail the subject of state and official immunity under Dutch law and how it would apply in a case such as this?

2.      Is it possible in a case such as this for the Government of Israel to submit a request to the court, once a lawsuit is filed, to take the place of the Israeli officials as a formal defendant, given that the claims raised are essentially aimed toward the State? In this context, we would be curious to read Church of Scientology v. Bauer Verlag, 65 ILR 380 (1980), if available in English. The case was referenced in a textbook discussion of state immunity (Rosanne van Alebeek) and perhaps could be of relevance. Would such a move have any potential adverse effects for us, e.g., negate raising the claim of state immunity/lack of jurisdiction later on in the proceedings? Also, when would be the optimal time to make such a request?

3.      In paras. 60-62 of the memo you addressed the question of whether or not to respond to the letter received. We wonder if strategically, it would not be wise to provide a reasoned response to the letter detailing Israel's position regarding the incident. Perhaps this would put us in a more favorable position publically and also in the eyes of a court, when the time comes. This could be an opportunity to establish that our legal system is robust and that these allegations were taken seriously and examined, and perhaps this could affect the position of the bailiff? At the same time, we would want to ensure that responding to the letter would not negate a future claim of lack of jurisdiction/immunity, etc.

4.      Are you able to specify who exactly within the Ministry of Justice would be the person responsible for responding to the bailiff or requesting to intervene/join (specifically Sander de Haas)?

5.      Is it possible and customary for the courts to first hear arguments regarding jurisdiction and immunity and only at a later stage, if necessary, hear arguments pertaining to the substantive issue; or would the defendants be expected to raise any and all claims at the same stage of the proceedings?

6.      Finally, with respect to the issue of representation addressed in paras. 69-70 of the memo, it is my understanding from my conversation with Vered that she does not recall making any categorical determination regarding the issue of conflict of interest. Our previous experience with complaints or lawsuits abroad has shown that in an overwhelming majority of cases, there is single representation for the defendants and litigation is handled by the Government, pursuant to a power-of-attorney by the defendants providing it with the authority to do so. While at this time, we believe it is unlikely that a conflict of interest will arise in this case, obviously this would be assessed on a continual basis, and separate representation could be obtained at any time at the request of the defendants or if we were to feel this is more prudent. I understood from Vered that she explained this during your discussion last week, but for the sake of clarity, saw fit to reiterate.

With regard to the addition of a civil law firm to the team – thanks very much for your detailed and thoughtful email on the matter. It was extremely helpful. If acceptable, we would be grateful if you could contact your colleagues at both Braus, Blackstone, Westbroek, and Hocker Advocaten as soon as possible, and inquire whether they would have any conflict of interest representing Israel and/or Israeli officials in this matter and also what the hourly rate for such representation would be. This will assist us in moving forward in this regard.

I look forward to hearing from you and am available should you wish to further discuss.

Kind regards,

(Ms.) Galit Raguan

 

Dr. Galit Raguan

Attorney

Department of Special International Affairs

Office of the State Attorney

Ministry of Justice

State of Israel

Office: + 972 (0)3 763 4281 | Cell: +972 (0)50 611 7014

Fax: +972 (0)2 646 7799

GalitRa@justice.gov.il

 

This email is confidential and for the exclusive use of its addressee. If you are not the intended recipient, please delete this message.

 

 

 

From: J.I.M.G. Jahae [mailto:jahae@jahae.nl]
Sent: Monday, June 26, 2017 11:30 AM
To: Shani lee Fisher; Talya Schein; 'Th.O.M. Dieben'; Marlene Mazel (marlene.mazel@gmail.com); Galit Raguan; Jurjan Geertsma; Vered Shpilman
Subject: Memo in pdf [D17056-3102115]

 

Dear all,

since you might encounter some problems receiving the memo we sent you earlier today in word-format , we are resending that same email of earlier today with the memo now as a pdf-attachment. 

Dear all,

due to the complexity of the issues you raised last Wednesday and the level of detail we wanted to address them with, it took us little bit longer than anticipated before we could finalise our memo. We hope however that you will find all the answers you were looking for in the attached memo.

If you have any further questions, don't hesitate and let us know. If you want to discuss the memo over the phone we are of course available to schedule a suitable date and time.

All the best

Han and Thom




 

Han Jahae
Advocaat

T

+31 20 435 25 25

F

+31 20 435 25 26

M

+31 6 53 13 26 55

E

info@jahae.nl

W

www.jahae.nl

Jahae Raymakers

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