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
8 August 2014

US Court decision to dismiss lawsuit against Chiquita shows difficulties faced by victims to hold corporations accountable for human rights abuses abroad, says academic

Author: Lauren Carasik, Western New England University School of Law, in Al Jazeera America

"The uphill battle to hold US corporations accountable for abuses abroad", 8 Aug 2014 

...[T]he Court of Appeals for the Eleventh Circuit dismissed a lawsuit against...Chiquita by 4,000 victims of...violence during Colombia’s...civil war...The court found that though Chiquita executives in Ohio did make illegal payments to the AUC, the case did not “touch and concern” the U.S...Judge...Martin [dissenting opinion]...wrote, “we disarm innocents against American corporations that engage in human rights violations abroad”...[T]he case highlights a glaring gap in the international framework...and underscores the importance of developing mechanisms to ensure that victims have access to judicial remedies...[They] face...prohibitive costs of litigation across borders, statutes of limitations and corporate structures that are built on legally distinct entities and insulate companies from liability...[T]he issue is a marked power imbalance: Big companies employ their considerable resources to shield themselves and impose double standards that serve their interests. They invoke the protections of international law when it suits them…Yet they aggressively resist efforts to impose accountability across borders…

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Article
29 July 2014

US federal appeals courts issue conflicting decisions regarding extraterritoriality in Alien Tort lawsuits against CACI & Chiquita

Author: John Bellinger, Lawfare (USA)

"Two New ATS Decisions: Fourth and Eleventh Circuits Split on Whether Claims Against CACI and Chiquita “Touch and Concern” the Territory of the United States", 27 Jul 2014 

...[F]ederal appellate courts have recently issued two significant, and potentially conflicting...decisions interpreting the extraterritorial reach of the Alien Tort Statute in light of the Supreme Court’s Kiobel decision…[A] Fourth Circuit panel reversed the dismissal of an ATS claim brought against CACI, a U.S. defense contractor, by former detainees in Abu Ghraib prison who alleged they had been tortured or abused by CACI employees; the panel concluded that the claims did “touch and concern” the territory of the United States…[A] split panel of the Eleventh Circuit ordered the dismissal of an ATS claim filed by…Colombians against Chiquita…in connection with its alleged payments to paramilitary forces in Colombia [on the grounds that] “There is no allegation that…any other act constituting a tort…touched or concerned the territory of the United States with any force.”...[These] decisions demonstrate that Kiobel still did not resolve the extraterritorial application of the ATS, at least to the conduct of US corporations…[Also refers to Archer Daniels Midland, Cargill, Ford, IBM, KBR, Nestlé]

 

 

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Article
5 May 2014

[video] 10 Years After Abu Ghraib, Ex-Prisoners Seek Justice in Torture Lawsuit Against U.S. Contractor CACI

Author: Democracy Now

[I]n 2004, after military investigative reports revealed the role of private military contractors in the atrocities in Abu Ghraib, we…with other lawyers, brought three lawsuits against two sets of private military contractors - one on behalf of 256 victims in—which was dismissed by a court of appeals in Washington, a second one against a company called L-3 Services…and that settled on behalf of 71. And this last lawsuit on behalf of Salah and three other victims of torture at the Abu Ghraib hard site against a private military contractor called CACI International…[T]his lawsuit seeks to hold CACI, the corporate entity, responsible for the actions of its employees…[The case] was dismissed by a lower court…[R]ecently, a court of appeals has heard our appeal…And I think…there are such strong U.S. connections to the torture here…we’re hopeful that the court of appeals will reinstate the case…[Also refers to L-3 Communications, L-3 Titan (part of L-3 Communications)]

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Article
2 May 2014

[PDF] Submission to the House of Commons Foreign Affairs Select Committee Inquiry: The FCO’S human rights work in 2013

Author: CORE (Corporate Responsibility Coalition)

Summary of Recommendations 1.1 On UK Action Plan on Business and Human Rights...CORE recommends that the FAC asks the UK government: Whether there are clear goals and success criteria for each of the proposed commitments set out in the UK’s Action Plan, along with a timetable for completion. Whether it monitors compliance with the Action Plan and identifies deficiencies that need to be addressed. How it responds to the lack of coherence and consistency across government departments in giving effect to the Action Plan. How it can ensure more effective accountability across Whitehall for implementation of the Action Plan. 1.2 On Human Rights in Promoting Britain’s Prosperity CORE recommends that the FAC asks the UK government: How the promotion of business interests and respect for human rights can be reconciled in light of UK’s intervention on behalf of Shell in a case before the US Supreme Court (Kiobel v Royal Dutch Petroleum) where the FCO admitted that the UK’s intervention “would be acting to seek a result that will close a possible remedy for victims of alleged human rights abuse”. Whether the UK considers that an international treaty on business and human rights will help create a level playing field for States and companies, and whether the UK will support the initiative that is being taken within the UN Human Rights Council to set in motion an intergovernmental process that may lead to such a treaty.

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Article
24 April 2014

Chiquita asks court to toss terror payments case [USA]

Author: AP, Washington Post

Chiquita…asked a…court…to dismiss lawsuits filed against [it] by relatives of…Colombians killed in a bloody civil war, contending the cases do not belong in a U.S. court…[The] attorney for…Chiquita [said]…that any legal action by the relatives should be pursued in Colombia. The lawsuits accuse Chiquita…of assisting in the killings by paying $1.7 million to a right-wing paramilitary group…The Colombians’ lawyer [Paul Hoffman]…countered that the cases belonged in the U.S. because Chiquita is based in this country and made decisions about the payments at its headquarters…in Cincinnati…The arguments Thursday revolved mainly around…Kiobel vs. Royal Dutch Petroleum…Like that case, the Colombian lawsuits against Chiquita invoke the Alien Tort Statute…The Chiquita lawyer…said…Kiobel…means there is now a presumption against such “extraterritorial” lawsuits being brought in the U.S…Hoffman…said…[i]f there’s enough linkage between a U.S. person or company and the overseas atrocities…a case…can go forward…

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Article
19 April 2014

Kiobel Anniversary Surprise: Judge Scheindlin Rules Corporations May Be Held Liable Under ATS, Despite Second Circuit Precedents [USA]

Author: John Bellinger, Lawfare (USA)

…Judge Scheindlin held, in the long-running Apartheid litigation, that corporations may be sued under the Alien Tort Statute. Her decision directly conflicts…with the Second Circuit’s…decision in Kiobel (holding that corporations are not subject to liability under the ATS) but also with the Second Circuit’s post-Kiobel decision…in the Apartheid case (deciding that the ATS suits against the defendants in the Apartheid case were barred by the Supreme Court’s decision in Kiobel)…Judge Scheindlin authorized the plaintiffs to…amend their complaints against Ford and IBM …to provide evidence that the companies’ activities “touch and concern” the territory of the United States…Scheindlin agreed to dismiss the two remaining foreign corporate defendants — Daimler AG and Rheinmetall…Scheindlin finds that by concluding in Kiobel that “mere corporate presence” is not sufficient to overcome the presumption against extraterritoriality, the Supreme Court by necessity implies that “corporate presence plus additional factors can suffice...”...[Refers to Daimler AG, Ford, IBM & Rheinmetall]

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Article
17 April 2014

Can Your Company Be Sued For a Terrorist Attack?

Author: Brooks M. Hanner, Corporate Counsel (USA)

…[C]ompanies that were indirectly or unwittingly connected to terrorism faced lawsuits after an attack…[R]ecent case law and statutory developments have strengthened the legal protections available to an innocent business involved in a terrorist attack…Much of the surge in terrorism-related lawsuits in the last decade is owed to expansive interpretations of the Anti-Terrorism Act. The ATA creates third-party liability for a company that provides “material support” for terrorism…In the early 2000s, courts began to weaken the causal nexus required between the terrorist act and nonterrorist third parties that were indirectly tied to funding an attack…[T]here have been recent signs that courts are beginning to reestablish the required causal nexus…Recent cases interpreting the Alien Tort Statute will further decrease a corporation’s potential liability for damages from an overseas terrorist attack…Taken together, these developments have essentially foreclosed the possibility of successful ATS claims against corporations that were indirectly involved in a terrorist attack on foreign soil…[Refers to BP, El Paso Energy, Hilton, Marriott, Sun International Hotels & UBS]

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Article
17 April 2014

Ford, IBM to face renewed U.S. lawsuit over apartheid-era abuses

Author: Jonathan Stempel, Reuters

Ford Motor Co and IBM Corp will again have to face a U.S. lawsuit claiming they encouraged race-based human rights abuses in apartheid-era South Africa, despite...recent court decisions limiting...such cases... U.S. District Judge Shira Scheindlin in Manhattan accepted an argument...that corporations may be held liable under...the Alien Tort Statute (ATS)... "No principle of domestic or international law supports the conclusion that the norms enforceable through the ATS ... apply only to natural persons and not to corporations," Scheindlin wrote... [The] 2nd U.S. Circuit Court of Appeals...had said [the case] should be dismissed... The plaintiffs contended that by having made military vehicles and computers for South African security forces...[the] companies...had aided and abetted...[the] apartheid government in perpetrating abuses, such as killings and torture. The litigation seeks class action status, with potential damages in the billions of dollars. [Refers to claims against Daimler, Rheinmetall, General Motors that were dismissed; also refers to Kiobel v. Royal Dutch/Shell.]

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Company response
9 April 2014

Rio Tinto's response

Author: Rio Tinto

On June 28 2013 the 9th US Circuit Court of Appeals dismissed the 13-year-old US class action against Rio Tinto. Rio Tinto always maintained the allegations were without foundation and welcomed the…decision. Rio Tinto’s dialogue with the UK Government on this issue was not focused on the merits of the claims…Rio Tinto is supportive of the UK’s implementation of the UN Guiding Principles on Business and Human Rights (UNGPs)…

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Article
7 April 2014

Documents reveal extent of Shell and Rio Tinto lobbying in human rights case [UK]

Author: Owen Bowcott, Guardian (UK)

The extent of lobbying conducted by Shell and Rio Tinto in seeking legal support from the UK government to dismiss allegations of human rights abuses has been revealed…The documents relate to two…court cases against the firms at the US supreme court over alleged complicity in mistreatment of protesters and people who lived near extraction operations…Shell and Rio Tinto approached the Foreign Office…seeking UK government backing…The FCO initially intervened at the US supreme court with a legal brief supporting Shell…The FCO then added a second, neutral brief…Responding to the claims, the FCO said: "The UK intervened in this case to clarify our position on the proper limits of the extraterritorial application of US law….”…A Shell spokesman said: "Shell companies have the right and the responsibility to  make our position known to governments on any matters which affect us…”… Rio Tinto declined to comment on the documents.

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