Amis de la Terre and Sherpa v. Perenco

Summary:

Perenco is a French oil company specialized in the optimization of previously exploited oil wells. The company is increasingly present in Africa, and is the only oil operator present in the DRC. According to Friends of the Earth, Perenco has been implicated in numerous reports, investigations and interpellations by the Congolese Senate, local associations, and international NGOs for serious environmental and health violations.

Sherpa and Friends of the Earth France would like to take legal action to determine Perenco's responsibility for the reported pollution and environmental damage, and to obtain compensation, if necessary. Given the opacity of the operations and organization of the oil multinational, they have first initiated an action under article 145 of the Code of Civil Procedure to obtain more evidence of the link between Perenco France and the companies operating locally in the DRC.

In 2019, Sherpa and Friends of the Earth France requested authorization to access internal documents of the company Perenco, to determine its role in activities denounced as harmful to the environment in the DRC. The Tribunal de Grande Instance of Paris and then the Paris Court of Appeal denied their request on September 17, 2020. Therefore, they “appealed” to the Court of Cassation.

The multinational argued that the case was inadmissible and should be decided according to Congolese law (which would have prevented the associations from gaining access to the evidence requested). The associations argued the admissibility of the action should be decided according to French law, which explicitly allows for action for compensation for ecological damage. They argued that they had standing and that the case was admissible because (i) they are an environmental protection association established in France, (ii) requesting all measures to preserve evidence that could determine the outcome of a future lawsuit to engage the liability of a company whose registered office is located in France, for environmental infringements carried out abroad.

On March 9th, 2022, the Court of Cassation ruled in favor of the associations. The Court of Cassation held that
(i) any interested party may ask the French judge for an investigative measure if there is a legitimate reason to preserve or establish, before any proceedings, evidence which could be relevant to the resolution of a dispute, provided that the action envisaged is not manifestly inadmissible or would be contrary to the law or doomed to failure.
(ii) With regard to the conflict of laws, a claimant for compensation for environmental damage or subsequent damage may choose to invoke either the law of the country in which the damage occurred or the law of the country in which the event giving rise to the damage occurred. Here, in the case of environmental damage suffered in the DRC due to the de facto control and dominant influence of the company whose head office is in France over the companies of the group operating in the DRC, the event giving rise to the damage is located in France.
(iii) Therefore, the right to request any measures to preserve or establish evidence that could be relevant to the outcome of a case with a view to holding a company, whose registered office is located in France, liable for environmental damage observed abroad, is defined in the lex fori. The lex fori (or law of the forum) is an international law principle, which provides that the law of the jurisdiction or venue in which a legal action is brought applies.

At Issue: Whether associations have standing to act in defense of a collective interest and obtain a measure of inquiry against a French company carrying out activities in a foreign country?