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Shell lawsuit (re Nigeria - Kiobel & Wiwa)

Kiobel v. Shell

Proceedings in the USA

Nigerian Soldier, By SSGT Paul R. Caron, USAF [Public domain], via Wikimedia_CommonsIn 2002, Royal Dutch/Shell was sued in US federal court by Esther Kiobel, the wife of Dr. Barinem Kiobel- an Ogoni activist who was member of the Movement for the Survival of the Ogoni People (MOSOP) and eleven other Nigerians from the Ogoni region.  MOSOP campaigned against the environmental damage caused by oil extraction in the Ogoni region of Nigeria and for increased autonomy for the Ogoni ethnic group.  Barinem Kiobel and other members of MOSOP were detained illegally in 1994, held incommunicado in military custody, then tried by a special court established by the military government using procedures in violation of international fair trial standards, convicted of murder and executed.  The suit alleges that Shell, through its Nigerian subsidiary Shell Petroleum Development Company of Nigeria (SPDC), provided transport to Nigerian troops, allowed company property to be used as staging areas for attacks against the Ogoni and provided food to the soldiers and paid them.  The plaintiffs claimed the defendant companies were complicit in the commission of torture, extrajudicial killing and other violations pursuant to the Alien Tort Claims Act (ATCA).

In March 2008, the district court granted the defendants’ motion to dismiss for lack of personal jurisdiction.  On 16 November 2009, the plaintiffs’ motion for reconsideration was granted asking the court to re-examine the issue of jurisdiction.  The court said in the motion that a direct business relationship between the USA and SPDC must be established in order for ATCA to apply.  On 21 June 2010, the district court ruled that the plaintiffs had not shown that this direct business relationship had existed, and the judge dismissed the suit against SPDC.  The plaintiffs appealed this ruling, and on 17 September 2010 the court of appeals issued a sweeping opinion addressing ATCA lawsuits involving corporate defendants.  The majority opinion affirmed lower court’s dismissal of the lawsuit, and it also stated that ATCA could not be used to sue corporations for violations of international law.  A separate opinion was written by the third judge from the appeals court panel, who concurred with the majority in judgment only.  This judge vigorously disagreed with the majority’s reasoning; he wrote that the majority’s opinion dealt a “substantial blow to international law and its undertaking to protect fundamental human rights.”  On 14 October 2010, the plaintiffs filed a petition for rehearing and rehearing en banc with the court.  The court of appeals, on 4 February 2011, refused to rehear the case.  The plaintiffs petitioned the Supreme Court in June 2011 asking it to hear an appeal of the lower court's ruling.  On 17 October 2011 the Supreme Court announced that it would hear the plaintiffs' appeal in this case.  Oral arguments were held on 28 February 2012.  On 5 March the Supreme Court announced that it would not rule on the case in the current term.  It has asked the parties to submit supplemental briefs and will rehear the case in the next term.  The Court asked the parties to submit briefs on whether the Alien Tort Claims Act allows federal courts to hear lawsuits alleging violations of international law which occur outside the United States.  The Court reheard the case on 1 October 2012.  On 17 April 2013 the Supreme Court handed down its decision finding that ATCA does not apply to conduct outside of the United States.  The Court affirmed the dismissal of the case.  A special page with all of the documents related to the Supreme Court review of this case is available here.

Proceedings in the Netherlands:

In October 2016, Esther Kiobel filed an application with a New York District Court under the US Foreign Legal Assistance Statute to gain access to important documents from the original US case, to be used in a lawsuit against Shell in the Netherlands.  The documents are in the possession of Shell’s lawyers, Cravath Swaine & Moore LLP.  

On 24 January 2017, Cravath Swaine & Moore were ordered to turn over the documents. On 13 February, the law firm appealed the decision arguing that it will suffer because foreign companies will be disinclined from hiring US lawyers if such wide discovery requests are granted.  A US court of appeals reversed the decision. Esther Kiobel asked the US Supreme Court to review the decison. On 7 January 2019, the US Supreme Court denied her petition.

In June 2017, Esther Kiobel and three other women launched a civil case against Shell in the Netherlands.  They claim the company was complicit in the 1995 killings of their husbands, part of the Ogoni 9 activists who contested Shell's operations and the Nigerian Government over the effects of oil pollution. Shell has denied any involvement in their executions. On 1 May 2019, a Dutch court said it has jurisdiction to hear the case and ruled that Shell should hand over confidential internal documents to the claimants.

Coverage:

Esther Kiobel, et al. v. Royal Dutch Petroleum Company et al:

Wiwa v. Shell

An earlier, related claim was filed by Ken Wiwa (son of the late Ogoni activist Ken Saro-Wiwa who was executed together with Barinem Kiobel  in 1995) and other members of MOSOP in 1996.  The Wiwa lawsuit was filed against the same defendant companies as the Kiobel lawsuit.  This lawsuit alleged that the Nigerian military government and security forces committed human rights violations, including torture and summary execution of MOSOP members, to suppress MOSOP’s activities and that Royal Dutch/Shell was complicit in the commission of these abuses.  The plaintiffs won several pre-trial rulings, including on motions by the defendants to dismiss the case. 

In early June 2009, the parties announced that they had agreed to a settlement in the case for $15.5 million.  The settlement provides compensation for the ten plaintiffs and covers a portion of the plaintiffs’ legal costs.  The settlement also establishes The Kiisi Trust, intended to benefit the Ogoni people, which will be governed by independent trustees.  This trust is to fund initiatives in Ogoni such as education, women’s programmes, adult literacy and small enterprise support.

Coverage: 

Wiwa v. Royal Dutch/Shell, Wiwa v. Anderson, and Wiwa v. SPDC:

US Circuit Court for the Second Circuit:

  • Wiwa v. Shell, 14 Sep 2000 [reversal of lower court’s dismissal of the case]

US District Court for the Southern District of New York:

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All components of this story

Article
12 February 2019

Nigerian widows sue Shell for complicity in activist deaths

Author: Associated Press

"Nigerian widows sue Shell for complicity in activist deaths", 12 February 2019

The widows of four Nigerian activists have opened a civil court case against oil company Shell, alleging it was complicit in the deaths of their husbands more than two decades ago...

...Their husbands were among nine activists from the Ogoni tribe, led by writer Ken Saro-Wiwa, who were hanged in 1995 for the murder of four political rivals. Supporters say they were targeted because of their involvement in protests against environmental damage by Shell’s Nigerian subsidiary...

...Shell’s Nigerian arm, Shell Petroleum Development Company of Nigeria Limited, denied responsibility. 

Read the full post here

Article
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Author: Amnesty International

« 23 ans après, la fin de l’impunité pour Shell ? », 12 février 2019

Le géant pétrolier est accusé d’être complice de graves violations des droits humains commises par le gouvernement nigérian dans les années 90 contre le peuple ogoni. Un tribunal prendra connaissance le 12 février des premiers éléments de cette affaire...

Esther Kiobel, Victoria Bera, Blessing Eawo et Charity Levula, quatre femmes ogonis, intentent un procès à Shell. Elles accusent la multinationale d’avoir tenu un rôle dans l’arrestation, la détention et l’exécution illégales de leurs époux par l’armée nigériane, à la suite d’une opération de répression brutale envers des manifestants ogonis contre la pollution dévastatrice causée par Shell dans la région...

Ce sera la première fois, dans ce combat pour la justice qui dure depuis plus de 20 ans, qu’Esther Kiobel et les autres demanderesses auront la possibilité de livrer leur récit devant la justice...

Leurs veuves demandent désormais une indemnisation et des excuses publiques de la part de Shell....

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Article
2 October 2017

Supreme Court Should Reject Corporate Impunity for Financing Terrorism

Author: John M. Eubanks, Motley Rice LLC (Petitioners’ Counsel in Jesner v. Arab Bank)

Imagine a situation where an international bank with a presence in Manhattan holds accounts for known terrorists and serves as the end-payor to beneficiaries of a fund created for the explicit purpose of supporting an armed uprising typified by suicide bombings and indiscriminate killing of civilians carried out by known terrorist organizations with whom the bank’s accountholders are directly affiliated. Then, picture this international bank being immune from lawsuits filed by the victims of these suicide bombings and indiscriminate killings solely on the basis of its corporate form. This is precisely the issue with which the Supreme Court will grapple in Jesner v. Arab Bank, to be argued before the Court on October 11, 2017. 

Jesner addresses the same question that was raised in Kiobel v. Royal Dutch Petroleum Co. during the October Term 2011. That question is whether the Alien Tort Statute (ATS), creates a categorical bar to corporate liability for violations of the law of nations, or customary international law…

…The language of the ATS does not explicitly exempt corporations. In fact, the text of the statute…specifically lays out who can sue (“an alien”), but it provides no limitation for who can be sued.

…[W]here a corporation engages in conduct that it knows will facilitate violations of the law of nations such as terrorism, crimes against humanity, or even genocide, can that corporation be held liable under the ATS to the victims of those violations? The answer is a simple “yes” based on the statutory text and common law’s interpretation of tort liability, and it is up to the Supreme Court to make this determination.

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Article
1 October 2017

Jesner v. Arab Bank and the UN Guiding Principles on Business and Human Rights

Author: John F. Sherman III, Shift, on Clarion

[Article starts p. 12]

…[I]n Jesner, the petitioners, who are victims of terrorist bombings and attacks, are suing the respondent Arab Bank, a multinational corporation based in Jordan, under the ATS. A jury found that the bank had knowingly used its New York branch as a clearinghouse to facilitate the financing of such actions…

The District Court ultimately overturned the verdict and dismissed the claim on the ground that corporations are not subject to suit under the ATS. The Second Circuit affirmed…

…[T]he Guiding Principles remain highly relevant in Jesner. First, their background and content show that international law does not preclude corporate responsibility for violations of human rights. Second, their widespread uptake helps to show that the existence of potential ATS liability benefits businesses abroad much more than it burdens them…

 

Download the full document here

Article
29 September 2017

Corporate Liability for Human Rights Violations: A Preview of Jesner v. Arab Bank, PLC

Author: William Dodge, University of California, on Just Security

On October 11, the U.S. Supreme Court will hear oral argument in Jesner v. Arab Bank, PLC on the question whether corporations can be sued for human rights violations under the Alien Tort Statute (ATS). This will be the second time the question of corporate liability has come before the Court. In 2011, the Supreme Court granted cert to consider the same question in Kiobel v. Royal Dutch Petroleum Co., but after oral argument the Court asked for additional briefing on the geographic scope of the ATS cause of action. Ultimately, the Supreme Court affirmed dismissal of the claims in Kiobel on the ground that they did not “touch and concern” the United States with sufficient force to displace the presumption against extraterritoriality. The Court did not reach the question of corporate liability under the ATS, leaving the Second Circuit’s categorical rule against such liability intact...

The arguments in Jesner fall into three groups:

1) whether customary international law permits corporate liability;

2) whether, as a matter of U.S. domestic law, the ATS cause of action should be interpreted to permit corporate liability;

3) whether the case against Arab Bank should be dismissed on some other ground...

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Article
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Author: Amnesty International France

États-Unis. Le cabinet d'avocats de Shell refuse de transmettre des éléments essentiels dans l'affaire des « neuf Ogonis »; 10 septembre 2017

Le cabinet d'avocats américain de Shell refuse de remettre plus de 100 000 documents internes essentiels à une procédure judiciaire intentée aux Pays-Bas, dans laquelle le géant pétrolier est accusé de complicité dans l'arrestation, la détention et l'exécution illégales de neuf hommes au Nigeria dans les années 1990…

Au terme d'une bataille de 20 années pour obtenir justice, le 28 juin, quatre des veuves de ces hommes, emmenées par Esther Kiobel, ont intenté une action en justice contre Shell aux Pays-Bas. Shell tente d'empêcher la transmission d'informations cruciales dans cette affaire.

Le 12 septembre, la cour fédérale d'appel du deuxième circuit à New York examinera le premier appel déposé par Cravath, Swaine  & Moore, LLP, le cabinet d’avocats de Shell, contre l'injonction d’une cour fédérale de remettre les documents.

« Shell se donne beaucoup de mal pour ne pas divulguer ces informations essentielles. Les documents en question étant très anciens, il est peu probable qu'il existe des motifs commerciaux légitimes pour les garder confidentiels. Alors, qu’est-ce que Shell cherche à cacher ?, a déclaré Audrey Gaughran, directrice générale chargée des recherches à Amnesty International.

Le 24 janvier 2017, une cour fédérale de district de New York a ordonné à Cravath de lui remettre les documents…

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Article
8 September 2017

Amnesty International Targets Cravath as Shell Discovery Fight Goes to 2nd Circuit [subscription required]

Author: Miriam Rozen, American Lawyer

Amnesty International has zeroed in on Cravath, Swaine & Moore, claiming in a Sept. 8 release that the New York firm is refusing to hand over "critical" evidence in long-running litigation against the oil giant Royal Dutch Shell…

Kiobel is now looking to the Dutch courts. And for that, she wants documents—in the possession of Shell's former lawyers at Cravath—related to her unsuccessful case in the United States.

In January, U.S. District Judge Alvin Hellerstein of the Southern District of New York in Manhattan ordered Cravath to give Kiobel the requested documents, which previously had been placed under protective order…

Cravath challenged Hellerstein's ruling, and the U.S. Court of Appeals for the Second Circuit is scheduled to hear the appeal on Sept. 12…

"Suing a U.S. law firm should not be a back door to secure documents from foreign clients, who are outside of U.S. jurisdictional boundaries," Haslam [who is Shell’s spokesperson] wrote in an email…

Backing Cravath in friend of the court briefs are the New York City Bar Association, the National Association of Manufacturers, the Association of Corporate Counsel, and the U.S. Chamber of Commerce…

The Chamber of Commerce, Association of Corporate Counsel and National Association of Manufacturers…argue that the ruling harms the U.S. discovery regime. "The clear message of the district court's decision is not only that protective orders are not protective, but also that a litigant who places faith in a protective order may suffer for its misplaced reliance decades later. By allowing such ready—and calamitous—circumvention, the district court's decision will undermine confidence in the protective orders that are the lifeblood of discovery."

Not surprisingly, Kiobel's lawyer, Marco Simons of the nonprofit EarthRights International, disagrees.

"None of this material is privileged. The only materials at issue were previously produced in discovery," Simons said…

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Article
8 September 2017

Ogoni Nine: Shell’s lawyers refusing to hand over “critical” evidence – Amnesty International

Author: Cletus Ukpong, Premium Times (Nigeria)

The civil suit filed against Shell in the Netherlands for its alleged complicity in the killing of Ken Saro-Wiwa and eight other Ogoni activists by the Nigerian government has taken an interesting turn, as lawyers to the oil giant are being accused of refusing to hand over evidence said to be critical to the case.

The nine men, popularly referred to as ‘Ogoni Nine’ were executed in 1995 by Nigeria’s military regime under controversial circumstances.

The widows of four of the men, led by Esther Kiobel, are the plaintiffs in the case which was first filed in 2001 in the U.S.

The U.S. Supreme Court in 2013, without hearing the substance of the case, had ruled that the U.S. did not have jurisdiction.

The widows filed the lawsuit in the Netherlands on June 28...

mnesty International directly accused Shell of trying to prevent the release of vital information.

Shell’s lawyers, according to the NGO, have appealed against the judgment of a U.S. federal court which ordered Shell to turn over the documents...

Shell has denied complicity in the killing of the Ogoni Nine...

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Article
8 September 2017

USA: Shell’s law firm refuses to hand over evidence critical for Ogoni Nine case Share

Author: Amnesty International USA

Shell’s US law firm is refusing to hand over more than 100,000 internal documents crucial to a legal case in the Netherlands which is alleging the oil giant’s complicity in the unlawful arrest, detention and execution of nine men in Nigeria in the 1990s...

After a 20-year battle for justice, on June 28, four of the men’s widows, led by Esther Kiobel, filed a legal writ against Shell in the Netherlands. Shell is trying to prevent the release of information vital to the case.

On September 12, the Second Circuit Court of Appeals in New York will hear the first appeal by Shell’s lawyers Cravath, Swaine & Moore, LLP against a federal court order to turn over the documents.

“Shell has gone to extraordinary lengths to withhold this critical information. Because the documents in question are so old, it is highly unlikely that there are legitimate business reasons for keeping them confidential. So what does Shell have to hide?” said Audrey Gaughran, Senior Director of Research at Amnesty International...

On January 24, 2017, a New York district court ordered Cravath to turn over the documents.

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Article
3 July 2017

Widows of the "Ogoni nine" executed in Nigeria in the 1990s launch a court case in the Netherlands against Shell; say company was complicit in their husbands' executions

Author: Rebecca Ratcliffe, The Guardian (UK)

"Ogoni widows file civil writ accusing Shell of complicity in Nigeria killings", 29 June 2017

The widows of men who were hanged by Nigeria’s military government in the 1990s have launched a civil case against Shell, accusing it of complicity in their husbands’ executions. Esther Kiobel, the widow of Dr Barinem Kiobel, and three other women whose husbands were hanged in 1995, served a writ in a Dutch court this week, following a 20-year battle with the oil giant. Kiobel’s husband was executed along with the writer and human rights activist Ken Saro-Wiwa, and seven other men, who became collectively known as the Ogoni nine. They were hanged in a military court following a peaceful uprising by 300,000 Ogonis against Shell’s widespread pollution in Ogoniland...Amnesty International, which has supported Kiobel’s legal team, has accused Shell of complicity in the state executions. Shell has branded the allegations “false and without merit”...In a briefing published on Thursday, Amnesty alleges that Shell encouraged security forces and military authorities to stop the protests, even though the company knew this would lead to human rights violations....In a statement, Shell Petroleum Development Company of Nigeria Limited said: “We have always denied, in the strongest possible terms, the allegations made by the plaintiffs in this tragic case...“SPDC has not had an opportunity to review the full report produced by Amnesty International but, based on a summary of its findings made available to us, the Amnesty allegations against Royal Dutch Shell and SPDC are false and without merit...

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