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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13 May 2016

USA: The current state of Alien Tort litigation in the business & human rights context

Author: Michael Goldhaber, American Lawyer (USA)

"The Global Lawyer: The 'Zombie' Alien Tort, Three Years After Kiobel", 12 May 2016

When the U.S. Supreme Court restricted the reach of the Alien Tort Statute in Kiobel v. Royal Dutch Shell, I wrote that it had created a "zombie doctrine,” leaving the corporate alien tort not quite alive and not quite dead. Three years later, the zombie is looking rather spry. On Thursday the U.S. Court of the Appeals for the Fourth Circuit heard oral argument in an alien tort case accusing a military contractor of torturing detainees at Abu Ghraib prison. The case…was dismissed…on political question grounds after the Fourth Circuit had refused to dismiss it under Kiobel. Two weeks ago…, a different judge declined to dismiss the case against the psychologists who designed the "black site" interrogation program on either Kiobel or political question grounds…The Supreme Court has passed on the chance to revisit Kiobel at least twice…Most alien tort cases will continue to be blocked by defenses like justiciability or forum non conveniens…Prudent plaintiffs lawyers will develop strategies under state law, or under acts designed to combat terror, torture, or human trafficking. I stand by my point that the Alien Tort Statute requires sympathetic interpretation.


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19 May 2015

Continuing implications of 'Kiobel' decision on US Alien Tort litigation

Author: Timothy J. Coleman and Emily B. Holland, Freshfields Bruckhaus Deringer in New York Law Journal

"Touching and Concerning 'Kiobel': Continuing Implications", 18 May 2015

April marked the two-year anniversary of the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum…Kiobel further restricted the district court's ability to recognize common law causes of action under the Alien Tort Statute (ATS) and articulated a new "touch and concern" test for determining when it is permissible for an ATS claimant to seek the extraterritorial application of federal law. Although it did not bar all extraterritorial claims, the majority opinion…shut the door to most ATS suits brought by foreign plaintiffs against foreign defendants for conduct occurring on foreign soil…The full implications of Kiobel will become clearer as courts continue to flesh out the contours of "touch and concern," and lawyers on both sides of the issue concur another Supreme Court decision may be required to clarify exactly when U.S. companies can be sued.

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7 January 2015

Chiquita Plaintiffs Take Alien Tort Case to High Court [Subscription required]

Author: Scott Flaherty, Litigation Daily (USA)

Months after a federal appeals court rejected efforts to hold Chiquita…liable for facilitating war crimes in Colombia, [a lawyer has] filed a Supreme Court petition on behalf of thousands of Colombians who allege their relatives were murdered by the United Self-Defense Forces…, or…a paramilitary group that Chiquita has admitted to supporting. The…petition…challenges a July decision by the U.S. Court of Appeals for the Eleventh Circuit, which found that Chiquita's alleged conduct didn't have enough connection to the U.S…."The Chiquita case clearly meets the test set out in Kiobel," [the plaintiff’s lawyers] said…."We have a U.S. corporation making decisions from the [U.S.] to finance terrorism in violation of U.S. law, and our nation has a strong interest in addressing this ..."…"Much as plaintiffs would like to portray it differently, there is no denying that their complaints assert claims for alleged violence in Colombia, by Colombians, against Colombians," said [Chiquita’s lawyers]… "The Eleventh Circuit's decision that the ATS does not provide jurisdiction for such claims is entirely consistent with Kiobel." With the high court appeal, the plaintiffs in the Chiquita case are looking to put the brakes on the federal courts' recent narrowing of the Alien Tort Statute's scope and its application to overseas conduct.

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Author: Centro de Información sobre Empresas y Derechos Humanos

Bienvenidos a nuestro Boletín Trimestral de Responsabilidad Legal Empresarial, rediseñado y optimizado para resaltar un tema de importancia cada trimestre, así como novedades clave en los casos ya publicados. El portal de Responsabilidad Legal Empresarial proporciona información objetiva y concisa sobre las demandas instauradas en contra de empresas en las que se presume se han violado los derechos humanos...Tema destacado del trimestre: ¿Un Nuevo camino para acceder a recursos legales?...[L]as víctimas de abusos empresariales en contra de los derechos humanos y sus abogados defensores siguen buscando nuevas rutas para acceder a recursos legales, más allá de los sistemas judiciales tradicionales. Uno de dichos caminos es la Corte Penal Internacional (CPI)...Si la CPI o cualquier otro organismo internacional podrían, ó no ofrecer acceso a la justicia en estos casos, está por verse...

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Author: Centre de Ressources sur les Entreprises et les Droits de l'Homme

Bienvenue à notre Bulletin trimestriel sur la responsabilité juridique des entreprises, publié sous un nouveau format plus épuré pour mettre en relief un fait saillant à chaque trimestre, de même que des développements importants.La plateforme sur la Responsabilité juridique des entreprises sur notre site internet fournit des informations objectives, concises sur les procès contre des entreprises dans lesquels sont avancées des allégations de violations des droits de l'homme…Actualité trimestrielle: Une nouvelle voie d'accès au recours?... [L]es victimes de violations des droits de l'homme par les entreprises et leurs avocats recherchent des alternatives aux systèmes judiciaires traditionnels en explorant de nouvelles voies d'accès au recours. Parmi celles-ci, il y'a la Cour Pénale Internationale (CPI)… Reste à voir si la CPI ou d'autres organes internationaux leur rendront justice…

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12 December 2014

U.S. corporations winning fight over human rights lawsuits

Author: Lawrence Hurley, Reuters

A landmark U.S. Supreme Court decision in 2013 that made it all but impossible to sue foreign companies in U.S. courts for alleged roles in overseas human rights abuses is proving to be a boon for U.S. firms too…In the roughly year and a half since the ruling in Kiobel v. Royal Dutch Petroleum Co, U.S. companies such as Chiquita Brands International Inc, IBM Corp and Ford Motor Co have successfully invoked the Supreme Court's reasoning to fend off lawsuits alleging they were involved in human rights abuses…In the seven cases involving U.S. companies that federal appeals courts have decided since the Supreme Court rulings, corporate defendants have won five…Only one ruling was an outright win for plaintiffs…The Supreme Court ruling means human rights lawyers now have to look more seriously at alternative ways to seek redress for alleged abuses. [also refers to CACI]

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4 December 2014

Access to justice for victims of human rights abuses needs to be strengthened

Author: Sif Thorgeirsson, Manager, Corporate Legal Accountability Project, Business & Human Rights Resource Centre

‘Closing the courtroom door: where can victims of human rights abuse by business find justice?’, 1 Dec 2014

…[M]any victims of business-related human rights abuse have no access to judicial remedy in their home country…The majority of cases of abuse we see at Business & Human Rights Resource Centre occur in weak governance zones, which often do not have an independent judiciary, and sometimes lack fully functioning courts…Of the 108 legal cases the Centre has profiled,…[54%] are related to extraterritorial claims…[but t]he effect [of Kiobel] has been a near-freeze on victims seeking justice through this…avenue. At the time of…Kiobel…, there were at least 19 corporate Alien Tort cases pending in US courts.  Since then, only one new…case has been filed…While the scope for remedy from US and English courts is narrowing…there have been three cases filed in Canadian courts addressing extraterritorial business-related human rights abuse...[and]…cases…have been filed in France, Switzerland and Germany…Concerted action is needed by governments and others to reverse the trend toward closing…avenues to justice…[Also refers to Occidental Petroleum, Cisco Systems, Drummond, Chiquita, Rio Tinto,  Daimler, ExxonMobil, Nestle, CACI, L-3 Titan, Nevsun, Hudbay Minerals and Tahoe Resources]

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25 November 2014

Standard behind US Court dismissal of Alien Tort case against Occidental & AirScan “sufficiently vague for corporations to hide behind”, says journalist

Author: Siddhartha Mahanta, Foreign Policy (USA)

"Suing companies for atrocities has never been harder. Thanks, Supreme Court!", 18 Nov 2014 [Subscription required]

On Nov. 12 [2014], the 9th U.S. Circuit Court of Appeals…ruled…in Mujica v. AirScan that the families of the victims of a…1998, cluster bomb attack on…Santo Domingo, Colombia, could not make claims against two American companies...Occidental Petroleum and AirScan...allegedly complicit in the attack...The Colombian helicopters that bombed Santo Domingo did so to protect the Caño-Limón pipeline, owned by Occidental, according to the plaintiffs. Occidental allegedly provided financial support to the Colombian military, [and gave] it office space to plan the…raid, the plaintiffs said…[I]n Kiobel vs. Royal Dutch Petroleum Co...Chief Justice John Roberts...[said]..."even where the claims touch and concern the territory of the United States...they must do so with sufficient force to displace the presumption against extraterritorial application."...Now, that "touch and concern" standard has returned...[Judge] Bybee wrote that the [Alien Tort Statute] didn't apply [in this case] because the…claims…failed to "touch and concern" the [US] with sufficient force...Relying on a standard as ill-defined as touch and concern, it seems, creates language sufficiently vague for corporations to hide behind. [Also refers to Exxon Mobil, Cisco, Shell]

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13 October 2014

The Rule of Law at a Crossroad: Enforcing Corporate Responsibility in International Investment Through the Alien Tort Statute

Author: Jennifer M. Green, University of Pennsylvania Journal of International Law, Article 6 in Vol. 35 Issue 4

...[Despite] the development of international norms on how corporations should behave in the global economy, one of the biggest challenges continues to be the enforcement of human rights standards...Effective accountability is critical for an international legal system that rewards law-abiding corporations, which then contributes to the deterrence of future violations. [This paper focuses on] one small piece of the attempt to enforce human rights standards against corporate violators—the claims brought under a U.S. law, the Alien Tort Statute (“ATS”), and the recent challenges presented by a Supreme Court case, Kiobel v. Royal Dutch Shell. The development of this area of jurisprudence is at an important crossroad, and the next steps by U.S. courts will be critical steps—either forward, towards an improved system of accountability...or backward, leaving victims without a remedy, rewarding those companies who flout the rule of law and penalizing their competitors who follow the law, and weakening the system of law itself...

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12 September 2014

Lawyer analyses US court decision in So. African apartheid case against IBM & Ford

Author: Michael Kourabas, TriplePundit

"The End of Apartheid Litigation and the Future of Corporate Accountability", 11 Sep 2014

The quest to hold corporations liable for alleged human rights abuses committed abroad was dealt another blow late last month when a New York District Court judge tossed the last of the apartheid-related cases pending against two American corporations...In a begrudging bow to current precedent...Judge Shira Scheindlin...denied plaintiffs’ motion to amend their complaint because they would be unable to meet the stringent demands of a test announced by the Second Circuit Court of Appeals earlier in the year...It seems, then, that all an American corporation has to do to protect itself from ATS exposure is ensure that, to the extent it engages in violations of international law in another country, it does so through a foreign subsidiary...As for Judge Scheindlin...“That these plaintiffs are left without relief in an American court is regrettable,” she wrote.  “But I am bound to follow [precedent]..."...

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