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.


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.


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

29 June 2017

Nigeria: Shell complicit in the arbitrary executions of Ogoni Nine as writ served in Dutch court

Author: Amnesty International

Oil giant Shell stands accused of complicity in the unlawful arrest, detention and execution of nine men who were hanged by Nigeria’s military government in the 1990s…following the launch of an explosive new case against the company in the Netherlands over four of the executions.

The civil case has been brought by Esther Kiobel… and three other women….Esther Kiobel [also] accuses Shell of… the violation of [her executed husband’s] personal integrity; the violation of his right to a fair trial and his right to life, and her own right to a family life…

The claimants are demanding damages for harm caused by Shell’s unlawful actions, and a public apology for the role that Shell played…

Shell Nigeria stated that: “The allegations cited in your letter against [Shell] are false and without merit.  [Shell Nigeria] did not collude with the military authorities to supress community unrest and in no way encouraged or advocated any act of violence in Nigeria….We have always denied these allegations in the strongest possible terms.”…

Esther Kiobel first filed a case against Shell in New York in 2002, but in 2013 the US Supreme Court ruled that the US did not have jurisdiction, without hearing the substance of the case

In the 1990s Shell in Nigeria was a wholly owned subsidiary of Royal Dutch/Shell (they later merged), and its operations were overseen by a management structure known as the Committee of Managing Directors (CMD) based in Europe.

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29 June 2017

Nigeria: Widows of Ogoni Leaders Killed By Abacha Sue Shell in Netherlands

Author: Oladeinde Olawoyin, Premium Times (Nigeria)

The widows of four of nine men executed by Nigeria's military regime in 1995 have filed a civil lawsuit seeking compensation and an apology from Royal Dutch Shell…

According to a writ filed in a court in The Hague, the widows are seeking compensation from the company for alleged complicity in a military crackdown, leading to the deaths of their husbands…

But Shell, the largest oil producer in Nigeria, has repeatedly denied any involvement in the executions or the government's response to the unrest.

A statement by the multinational said....

"SPDC (Shell Petroleum Development Company of Nigeria) did not collude with the authorities to suppress community unrest and in no way encouraged or advocated any act of violence in Nigeria. In fact, the company believes that dialogue is the best way to resolve disputes."…

"Shell and the military regime formed an alliance in the events leading to the deaths of the Ogoni 9," the writ [filed by the claimants] said.

"Their relationship was one of mutual dependence: the Nigerian state was dependent on the income from oil that Shell generated; in turn, Shell was dependent on the benevolence and protection of the regime to pursue its activities in Nigeria and in this way realise a substantial part of its turnover."...

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29 June 2017

Widows Hold Shell Liable for ‘Judicial Murder’

Author: John Donovan, Royal Dutch Shell

…An extract from an English version of the Writ of Summons…

  1. In this case four Nigerian widows hold Shell liable for the unlawful detention and execution of their husbands in 1995 and the damage they have suffered in connection with those events.
  2. On 10 November 1995 the military regime in Nigeria hanged…the ‘Ogoni 9’…
  3. Shell played a crucial role in the events leading to the deaths…the claimants argue that Shell is an accessory to the violation of (inter alia) their husbands’ right to life, their right to a family life and their right to personal dignity and integrity.
  4. …The claimants have to date been deprived of a judgment or settlement.
  5. …Chapter 8 [of the summons] contains further details of Shell’s complicity…[including as to] how Shell kept encouraging the regime to act and clear things up in Ogoniland, while knowing that this had already given rise to many fatalities and casualties…[and showing] the existence of a deep entanglement between the regime and Shell…[as well that] Shell operated continuously as one company in this regard…being managed from the parent companies…

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13 April 2017

Overcoming unequal access to information - frequent barrier to remedy for victims of corporate abuse

Author: Elodie Aba, Business & Human Rights Resource Centre

[I]nequality in access to information reinforces the existing imbalance of power between victims and companies, denying to victims information required to file a case or prove their claims. ..[G]ranting access to evidence can rectify the imbalance...[C]ourts should ease access to information wherever a company holds it, following the examples of courts and laws in the US, Canada, and Netherlands. Information sharing and international collaboration between courts is beneficial for all stakeholders because it facilitates resolution of disputes...[In addition,] [s]tronger legislation similar to the US [Foreign Legal Assistance] Statute...would go a long way...

[refers to Chevron, Hudbay Minerals, Shell]

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23 February 2017

Commentary: How to use US Foreign Legal Assistance statute to access information for lawsuits abroad; Kiobel case against Shell as an example

Author: Upasana Khatri, OxHRH Blog (UK)

"Kiobel v. Cravath: An Example of How a Little-Known U.S. Law can be Used as a Pre-Litigation Tool Overseas", 22 Feb 2017

When Esther Kiobel...could not find justice by suing Shell in U.S courts, she decided to the Netherlands...Ms. Kiobel returned to the same federal court where she had filed her case...fourteen years earlier, this time under FLA [Foreign Legal Assistance statute] to access the documents held by Cravath [Cravath, Swaine & Moore LLP] and use those documents to assist her Dutch lawsuit.  Cravath...claimed that the documents should not be turned over because Ms. Kiobel had yet to commence her action in the Netherlands...The court, however,...granted the application...[A] FLA can be filed to assist lawsuits that are within “reasonable contemplation.”  Applying this standard, the court found that the requirement under Dutch procedure that plaintiffs present a certain amount of evidence at the outset of an action was a compelling explanation for why Ms. Kiobel had not yet commenced the litigation...[T]he court noted that Ms. Kiobel had met her burden of providing objective indicia that the action was within reasonable contemplation, including proof that her Dutch lawyer had drafted a writ of summons, applied and obtained legal aid funding, and sent liability letters to Shell...

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16 February 2017

US law firm asks judge to delay order compelling it to give documents to Dutch court in lawsuit against Shell for abuses in Nigeria

Author: Suevon Lee, Law360 (USA)

"Cravath Wants Shell Docs Order Stayed During Appeal", 13 Feb 2017

Cravath Swaine & Moore LLP on Monday urged a New York federal judge to stay a[n]...order compelling the firm to turn over Royal Dutch Shell documents for planned litigation against the energy giant in the Netherlands...Kiobel plans to sue Shell in the Netherlands for alleged complicity with Nigerian authorities in alleged civil liberties and human rights violations against individuals who opposed Shell’s activities in the Ogoni region...Cravath, which defended Shell against similar suits in the U.S. and gathered a trove of documents...argues that U.S. District Judge...should stay his order...Cravath, which has been ordered to turn over the documents...contends there is no harm in staying the order while an appellate resolution is pending. The...firm contends it will suffer irreparable injury should it be required to produce the documents...Cravath argues that foreign firms will be disinclined to hire U.S. counsel for litigation matters if the judge’s order stands, given the scope of the discovery mandate...She contends...that obtaining the Shell documents will assist her planned litigation in the Netherlands...

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12 January 2017

US court grants access to relevant evidence in Kiobel case to be used in lawsuit against Shell in the Netherlands

Author: Upasana Khatri, Earth Rights International

"U.S. Court Assists with Dutch Human Rights Lawsuit Against Shell", 12 Jan 2017

When Esther Kiobel...could not find justice by suing Shell in U.S courts, she decided to sue the Dutch oil giant in the Netherlands...Ms. Kiobel and her Dutch lawyers utilize...the Foreign Legal Assistance (FLA) gain access to important documents from the original U.S. case...These documents were in the possession of...the law firm that defended Shell in the U.S. litigation...In 2013...the United States Supreme Court dismissed Ms. Kiobel’s case against Shell on jurisdictional grounds...Ms. Kiobel turned to the courts of Shell’s home country, the Netherlands...Dutch procedural law requires plaintiffs in civil actions to present...their evidence at the opening of their case...While all of this evidence had been turned over to Ms. Kiobel in the course of the U.S. litigation, much of it was required to be destroyed at the end of that case...Ms. Kiobel returned to the same district court where she had filed her case against Shell 14 years request access to evidence that may prove critical to finally bringing Shell to justice...Judge...granted her FLA application...

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Author: Gwynne Skinner, Robert McCorquodale, Olivier De Schutter & Andie Lambe

"第三大支柱: 讓跨國公司侵犯人權行為的受害者獲得司法救濟", 2013年2月


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Author: Gwynne Skinner, Robert McCorquodale, Olivier De Schutter & Andie Lambe

"第三大支柱: 让跨国公司侵犯人权行为的受害者获得司法救济", 2013年2月


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18 October 2016

Widow of Nigerian activist to sue Shell in Netherlands alleging company was complicit in killing of her husband

Author: Tom Bergin, Reuters (UK)

"Shell faces possible Dutch lawsuit over Nigerian activist's execution", 16 Oct 2016

The widow of a Nigerian activist is planning to sue Royal Dutch Shell in the Dutch courts alleging the oil company was complicit in the execution of her husband by the Nigerian military in 1995, court documents filed in the United States last week show.  Esther Kiobel has filed an application in New York to secure documents from Shell’s U.S. lawyers, which she could use in the Dutch action.  The filings with the U.S. District Court for the Southern District Court of New York said she planned to begin that action before the end of the year.  “Ms. Kiobel will demonstrate that Shell encouraged, facilitated, and conspired with the Nigerian government to commit human rights violations against the Ogoni people,”...A Shell spokesman said on Sunday: “Shell remains firmly committed to supporting fundamental human rights in line with the legitimate role of business. We have always denied, in the strongest possible terms, the allegations made by the plaintiffs in this tragic case."  Kiobel previously took her lawsuit to the United States but the U.S. Supreme Court ruled in 2013 that the case could not be heard because the alleged activities took place outside the country...

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