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
2 June 2003

A Needed Human Rights Law [USA]

Author: editorial, New York Times

...the Alien Tort Claims Act - now the Justice Department wants to end the law's use in such suits [lawsuits alleging companies engaged in serious human rights abuses abroad]...To stop lawsuits under this act would be to put abusive individuals and companies above the law.

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Article
29 May 2003

'Corporate G8': Examples of Damaging Corporate Practices from G8 Multinational Corporations

Author: Friends of the Earth

Friends of the Earth International Briefing [refers to cases of: Manhattan Minerals in Peru; Suez/Ondeo in Philippines; Bayer Group in Germany; ENI-AGIP in Ecuador, Azerbaijan, Nigeria & Italy; Alfa Group/Crown Resources in Spain; Shell in Nigeria, Philippines & USA; Monsanto worldwide]

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Article
15 May 2003

Shell boss exposed for lobbying against accountability

Author: Friends of the Earth

Shell boss Phil Watts will today be exposed for lobbying the UK Government against corporate accountability laws - currently being used in the United States to challenge his own company's activities in Nigeria.

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Article
4 April 2003

Oil Companies being sued

Author: International Campaign against Impunity

[refers to Total Fina Elf, UNOCAL, Shell; Nigeria, Burma, Republic of Congo]

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Article
4 April 2003

Wiwa v. Royal Dutch Petroleum (Shell)

Author: EarthRights International

[webpage summarising the case]

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Article
1 March 2003

Oil and Human Rights - Environmental and Human Rights Impacts of the ONG Industry [oil & natural gas industry]

Author: Ayesha Dias, Bureau for Development Policy (Democratic Governance) UNDP

...every stage of [the oil & natural gas sector] activity, from exploration exploitation, refining, manufacturing, storage, transportation and fuel use is fraught with environmental and social consequences – local, regional and global...The application of the Declaration to various non-state actors is staunchly supported by human rights scholars such as Professor Louis Henkin who, speaking of the universal nature of the Declaration’s preamble contends that “every individual includes judicial persons. Every individual and every organ of society excludes no one, no country, no market, no cyberspace. The Universal Declaration applies to them all”. [refers to Exxon (part of ExxonMobil), Shell, Chevron, Unocal, Texaco (part of Chevron), BP Amoco, Talisman, TotalFinaElf (Total), Norsk Hydro]

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Article
31 January 2003

[PDF] Legal Issues in Corporate Citizenship

Author: Halina Ward, International Institute for Environment and Development

Mandatory legislation on various aspects of business transparency is emerging around the world. It can form part of company law, environmental regulation, or tailored legislation for institutional investors or on social and environmental reporting. Pressure for enhanced public sector accountability has also given rise to calls for company reporting on revenues paid to host government by companies in the extractive industries...A new wave of legal actions – mostly in US courts, but also in some EU countries – is testing the boundaries of existing legal principles in relation to some of the most difficult issues of the CSR agenda. For example, a series of cases in the US, France and Belgium are testing how fundamental principles of international law – particularly human rights law – apply to parent companies of multinational corporate groups.

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Article
26 September 2002

Shell faces litigation

Author: Tomorrow: Your sustainable business toolkit

Fourteen individual plaintiffs filed a class action suit [in a U.S. court] against Royal Dutch Petroleum and Shell Transport, plc, on September 20 for alleged human rights abuses in Ogoniland, Nigeria...the complaint alleges that Shell knowingly instigated, planned and facilitated in unprovoked attacks by the former Nigerian military government against the unarmed residents of Ogoniland, resulting in murder and gross human rights abuses.

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Article
23 September 2002

Berger & Montague, P.C. Files Class Action Complaint Against Royal Dutch Petroleum and Shell Transport, p.l.c

Author: Berger & Montague

Shell is charged with purchasing ammunition and using its helicopters and boats and providing logistical support for "Operation Restore Order in Ogoniland" a military foray into Ogoniland designed to terrorize the civilian population into ending peaceful protests against Shell's environmentally unsound oil exploration and extraction activities in Ogoniland.

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Article
26 June 2002

Corporate Human Rights [human rights lawsuits agains multinationals in U.S. courts]

Author: David Corn, The Nation

...For several years, a small group of lawyers and labor advocates has been trying to hold transnational companies responsible for their actions by suing them in the United States for abetting and/or benefiting from human rights abuses overseas. [refers to lawsuits against Unocal, Shell, Texaco, Rio Tinto, Coca-Cola, Fresh Del Monte Produce, DynCorp, Drummond Company, ExxonMobil]

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