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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Article
24 January 2014

United States: Supreme Court Continues Recent Trend Of Limiting Suits For Corporate Conduct Outside Of The US

Author: Sander Bak, Atara Miller & Jed Schwartz, Milbank, Tweed, Hadley & McCloy LLP, in Mondaq (USA)

Following the trend of its recent decisions…the Supreme Court…in Daimler AG v. Bauman, reversed the Ninth Circuit, and held that a corporation could not be sued in the US for actions that took place entirely abroad, even if [it] has some general contacts within the forum state…[T]he Supreme Court ruled that it would violate due process to subject a foreign corporation…to general jurisdiction in California based on its subsidiary's systematic contacts with that state…If…[Mercedes-Benz USA]'s sales activities in California could make Daimler subject to jurisdiction for any conduct that occurred throughout the world, the same would be true for "every other State in which MBUSA's sales are sizable…[S]uch an "exorbitant" exercise of jurisdiction would be unfair…[This] decision will restrict the ability of plaintiffs to bring suit in the US against foreign corporate defendants where the allegations are based on extraterritorial activities. [Refers to Mercedes-Benz (part of Daimler)]

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Article
1 January 2014

[PDF] Between activism and science: grassroots concepts for sustainability coined by Environmental Justice Organizations

Author: Joan Martinez-Alier (Universitat Autonoma de Barcelona) & others, Journal of Political Ecology

[Résumé aussi en Français / Resumen también en español] EJOs (environmental justice organizations) and their networks have introduced several concepts to political ecology that have also been taken up by academics and policy makers. In this paper, we explain the contexts in which such notions have arisen, providing definitions of a wide array of concepts and slogans related to environmental inequities and sustainability, and explore the connections and relations between them. These concepts include: environmental justice, ecological debt, popular epidemiology, environmental racism, climate justice, environmentalism of the poor, water justice, biopiracy, food sovereignty, "green deserts", "peasant agriculture cools downs the Earth", land grabbing, Ogonization and Yasunization, resource caps, corporate accountability, ecocide, and indigenous territorial rights...[refers to Chevron, Texaco, Keystone (part of Thor Industries), BP, Dole, Umicore, Bechtel, Edison, Abengoa, Vale, Eskom]

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Author: Francisco Javier Zamora Cabot, La Universitat Jaume I

En 2004, veintidós residentes en Argentina presentaron demanda contra Daimler/Chrysler AG [en]…California…Los demandantes alegaban que Mercedes- Benz Argentina, subsidiaria de [Daimler/Chrysler], había colaborado con las fuerzas de seguridad de [Argentina]…en la detención, tortura, desaparición y muerte de empleados de la planta de la empresa…Tales hechos fundaban sus pretensiones en base al Alien Tort Claims Act…y a la Torture Victim Protection Act…Parece haber…por parte del Tribunal Supremo, una cierta premura…en el sentido de desalentar el que se acuda a los tribunales de los Estados Unidos tratándose… de actividades llevadas a cabo en el extranjero… Las grandes empresas...usan sus complejos entramados...para obviar las regulaciones estatales…y…extender su impunidad …Respaldar esto último no ha podido ser un propósito consciente del Tribunal Supremo en su decisión en Daimler pero...en la práctica es a lo que tal decisión, junto a la de Kiobel, conduce…

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Article
9 December 2013

Activists seek sharp swords in human rights battle

Author: Jennifer Fraczek, Deutsche Welle

The ATS [Alien Tort Statute] had long been considered the sharp sword in the battle against human rights violations. But then the court rejected the claims in the Kiobel case, saying they lacked a strong enough connection to the US…Michael Windfuhr [deputy director of the German Institute for Human Rights] believes legal hurdles are too high for victims of human rights violations...[and] hopes that the United Nations guiding principles on business and human rights will afford people who have suffered human rights abuses more opportunity to bring their cases to court…The hope is that human rights can be ensured all along the value chain…It's still not clear whether the UN principles, also known as 'soft laws,' will be effective because they are not legally binding. That's why international law expert Jochen von Bernstorff believes the answer is an internationally binding treaty…

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Article
9 December 2013

Justice Increasingly Distant for Victims of Corporate Abuse

Author: Carey L. Biron, MintPress News (USA)

Victims of corporate human rights abuses are finding it more difficult to access justice or hold companies accountable for such crimes, according to new research released this week…[S]cholars and rights defenders are warning that governments have either failed to implement or gone backward on a key provision of…[the Guiding Principles on Business and Human Rights]…the ability of victims of corporate abuses to access justice…[A]report looks at seven countries in North America and Europe and tracks any legal or legislative changes that have been put in place following the 2011 agreement of the Guiding Principles. These countries are considered particularly important given that most of the world’s major multinational companies are headquartered in these states…Two of the most significant ongoing obstacles to justice for victims of corporate abuses are extremely basic: prohibitive cost and an often bewildering corporate structure…

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Article
30 November 2013

[PDF] The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business

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

The Access to Judicial Remedy (A2JR) Project set out to identify and analyze the barriers in the United States, Canada, and Europe…The detailed mapping exercise undertaken in the development of this Report shows that States are generally not fulfilling their obligation to ensure access to effective judicial remedies to victims of human rights violations by businesses operating outside their territory. Victims continue to face barriers that at times can completely block their access to an effective remedy…These barriers have been overcome in only some instances…Victims of human rights violations by business, wherever the violations occur, are entitled to full and effective access to judicial remedies. In order to provide this, each State should examine the barriers in their jurisdiction and consider the range of actions they can take to alleviate them, and in particular, the recommendations contained in this Report…[Refers to Alstom, Amesys (part of Bull), Anvil Mining (part of China Minmetals), Barrick Gold, Bull, Cambior, Cape PLC, Chevron, Chiquita, Daimler, DLH (Dalhoff Larsen & Horneman), Drummond, ExxonMobil, HudBay Minerals, Monterrico Metals (part of Zijin), Shell, Talisman, Texaco (part of Chevron), Thor Chemicals, Unocal (part of Chevron), Veolia Environnement (formerly Vivendi), Veolia Transport (part of Veolia Environnement), Walmart, Zijin]

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Article
1 November 2013

[PDF] Briefing note - Africa Oil Week 2013: Oil & gas industry must improve its respect for human rights

Author: Aliou Diouf, Joseph Kibugu, Nokukhanya Mncwabe, Julia Mello Neiva, Gregory Regaignon - Business & Human Rights Resource Centre

The oil & gas industry has a vital role to play in Africa’s development. But too often exploration and extraction are linked to human rights abuses against local residents, oil & gas revenues prop up repressive governments, and the promise of poverty alleviation is squandered...This briefing, on the occasion of Africa Oil Week, focuses on three key areas identified by African civil society as needing urgent and transformative action to ensure the oil industry serves the common good and inclusive development, rather than causing enrichment of a few and abuses of the rights of many: 1. Community impacts: rights to water, food, health & land. 2. Violence linked to the oil industry. 3. Transparency of revenues and contracts & contribution of revenues to the fulfilment of social & economic rights. [refers to Addax Petroleum (part of Sinopec), Agip (part of Eni), Chevron, CNPC, ExxonMobil, Marathon, Shell, Swala Oil & Gas, Talisman Energy, Tullow Oil]

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Article
29 October 2013

[video] Film: A conversation with John Ruggie

Author: 2013 Annual Conference of the International Bar Association

In this interview and Q&A, Harvard Professor John Ruggie, author of the UN Guiding Principles on Business and Human Rights, provided insight into his groundbreaking work, contending that it is simply good business for business to be just, in the sense of it being principled. Professor John Ruggie, former Special Representative of the UN Secretary-General on Business and Human Rights, is the Berthold Beitz Professor in Human Rights and International Affairs at the Kennedy School of Government, and an Affiliated Professor in International Legal Studies at Harvard Law School. Trained as a political scientist, he has made significant intellectual contributions to the study of international relations, focusing on the impact of economic and other forms of globalisation on global rule-making and the emergence of new rule-makers. He is the author of Just Business: Multinational Corporations and Human Rights...in which he explains that he deliberately sought to bring new players into the business and human rights debate, the most consequential of whom were corporate lawyers. He is identified as one of the 25 most influential international relations scholars in the US and Canada according to surveys published in Foreign Policy magazine.

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Article
16 October 2013

Corporate Rights or Human Rights?

Author: Katie Redford, EarthRights International

Every day, human rights defenders around the world risk their lives to stand up against injustice…[B]rave individuals everywhere depend on fundamental rights of free speech to do their work. The United States has always celebrated such rights as vital to our democracy…Yet recent trends…have privileged the free speech rights of corporations while silencing the living, breathing human beings that need those rights most… Since Citizens United, which extended First Amendment rights to corporations as “persons”, we’ve seen bold legal arguments against laws and regulations that would hold them accountable to fundamental human rights law…Human rights advocates have always faced an uphill battle, especially when taking on corporate abuse. What is new is the way in which our highest courts are privileging corporations and their rights over those of actual human beings. [refers to Shell, Chevron, Daimler]

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Author: AFP, Reuters & Le Monde (France)

La Cour suprême américaine se penche, mardi 15 octobre, sur l'affaire dite Bauman contre DaimlerChrysler pour déterminer si le groupe automobile allemand Daimler AG doit répondre aux Etats-Unis de poursuites contre sa filiale Mercedes, accusée de complicité de violations des droits de l'homme en Argentine…"La question qui se pose aux juges [de la Cour suprême] c'est à quel point ce lien est significatif" pour permettre des poursuites aux Etats-Unis, commente Lyle Denniston, expert de ScotusBlog…Dans son arrêt, la cour d'appel de San Francisco a estimé que "les tribunaux américains ont un grand intérêt à redresser les abus sur les droits internationaux de l'homme". "Quand des entreprises comme DaimlerChrysler…travaillent en tandem avec de violents dictateurs, militaires et même des organisations terroristes, en jouant un rôle dans d'horribles violations de droits de l'homme, elles doivent rendre des comptes", fait valoir…EarthRights International…[Fait aussi référence à Shell]

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