Shell lawsuit (re Nigeria - Kiobel & Wiwa)

Para la versión en español de este perfil de las demandas judiciales contra Shell por actividades en Nigeria, haga clic acá.

Pour la version française de ce profil, cliquez ici.

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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.

 

- "Nigeria: Widows of Ogoni Leaders Killed By Abacha Sue Shell in Netherlands", Oladeinde Olawoyin, Premium Times (Nigeria), 29 Jun 2017
- "Companies Shielded as U.S. Court Cuts Human-Rights Suits", Greg Stohr, Bloomberg, 17 Apr 2013
- "Views on Kiobel v. Shell", Salil Tripathi, Institute for Human Rights and Business, 9 Oct 2012
- "Alien torts in America's courts", Editorial, Los Angeles Times, 8 Oct 2012
- "Shell, Corporate Responsibility and Respect for the Law", Amol Mehra & Katie Shay, International Corporate Accountability Roundtable, 3 Oct 2012
- "Argument recap: In search of an [Alien Tort Statute] compromise", Lyle Denniston, SCOTUSblog, 1 Oct 2012
- "Supreme Court may narrow law in human rights cases", Jonathan Stempel, Reuters, 1 Oct 2012
- "The U.S. Supreme Court must preserve the Alien Tort Statute for international corporate human rights cases", Marco Simons, EarthRights International, 13 Jun 2012
- "Torture Suits Against Companies Including Shell Draw U.S. High Court Review", Greg Stohr, Bloomberg, 17 Oct 2011
- "US court upholds key Shell ruling in Nigeria case", Jonathan Stempel, Reuters, 4 Feb 2011
- "2nd Circuit Rejects Corporate Liability in Alien Tort Cases", Mark Hamblett, New York Law Journal, 20 Sep 2010
- “Nigeria Torture Case Decision Exempts Companies From U.S. Alien Tort Law”, Bob Van Voris & Patricia Hurtado, Bloomberg, 17 Sep 2010
“Judge Kimba Wood Dismisses Defendant from Aliant Tort Statute Class Action for Lack of Personal Jurisdiction”, Russell Jackson, Jackson on Consumer Class Actions & Mass Torts, 25 Jun 2010

Esther Kiobel, et al. v. Royal Dutch Petroleum Company et al.
- [PDF] Opinion of US Supreme Court, 17 Apr 2013
Petitioners/plaintiffs (Kiobel) - Supplemental Reply Brief, 31 Aug 2012
Respondents/defendants (Shell) - Supplemental Brief, 1 Aug 2012
- [PDF] Supplemental brief for petitioners/plaintiffs (Kiobel), 6 Jun 2012
- [PDF] Kiobel, et al. v. Royal Dutch Petroleum - Brief for Respondents, 27 Jan 2012
- [PDF] Kiobel, et al. v. Royal Dutch Petroleum - Brief for Petitioners, 14 Dec 2011
- [PDF] Kiobel, et al. v. Royal Dutch Petroleum - Petition for Writ of Certiorari, 6 Jun 2011
- US Court of Appeals for the Second Circuit: [PDF] Kiobel, et al. v. Royal Dutch Petroleum, et al., 4 Feb 2011 [order denying plaintiffs' petition for rehearing]
- [PDF] Petition for rehearing and rehearing en banc for Plaintiffs-Appellants-Cross-Appellees, 14 Oct 2010
- US Court of Appeals for the Second Circuit: [PDF] Order affirming District Court’s dismissal of lawsuit, 17 Sep 2010
- US District Court for the Southern District of New York: [PDF] Opinion and Order [regarding 2008 motion to dismiss], 21 Jun 2010
Opinion and Order re Plainitffs' motion for reconsideration, 16 Nov 2009
Opinion and Order, 25 Jun 2009

- [PDF] Kiobel, et al. v. Royal Dutch Shell Petroleum Co., et al. - Brief for the United States as amicus curiae supporting petitioners, 21 Dec 2011
- [PDF] Kiobel, et al. v. Royal Dutch Shell Petroleum Co., et al. - Brief of Former US Senator Arlen Specter, Human Rights First, and the Anti-Defamation League as amici curiae in support of petitioners, 21 Dec 2011
- [PDF] Kiobel, et al. v. Royal Dutch Shell Petroleum Co., et al. - Brief of Earth Rights Intl. as amicus curiae supporting petitioners, 21 Dec 2011

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.

- “Shell settles human rights suit for $15.5M”, Chris Kahn, Associated Press, 8 Jun 2009
- [video] Shell in court over alleged Nigeria crimes, Al Jazeera English, 3 Jun 2009
- "Shell must defend Nigerian rights suit, judge says", David Glovin, Bloomberg, 23 Apr 2009
- “Shell Faces Human Rights Grilling”, Tim Webb, Independent [UK], 11 Apr 2004
- “Big Oil and an Activist's Death: Family Sues to Probe Role Played by Shell in Nigerian's Execution”, Elizabeth Neuffer, Boston Globe, 03 Jun 2001

- Shell:
 - Shell in Nigeria: Issues
 - Shell settles Wiwa case with humanitarian gesture, 8 Jun 2009

- [PDF] Statement of the Plaintiffs in Wiwa v. Royal Dutch/Shell, Wiwa v. Anderson, and Wiwa v. SPDC, Lucky Doobee, Monday Gbokoo, David Kiobel, Karalolo Kogbara, Blessing Kpuinen, James N-nah, Friday Nuate, Ken Saro-Wiwa, Jr., Michael Vizor, Owens Wiwa, 8 Jun 2009
- [PDF] Statement of Plaintiffs' Attorneys in Wiwa v. Royal Dutch/Shell, Wiwa v. Anderson, and Wiwa v. SPDC, 8 Jun 2009

- EarthRights International (NGO representing plaintiffs):Wiwa v. Royal Dutch Petroleum (Shell) [includes links to court opinions and plaintiffs’ complaints filed in this case]

- Center for Constitutional Rights (NGO representing plaintiffs):
 - Wiwa v. Royal Dutch Petroleum [synopsis]
 - [PDF] On Eve of Trial, Settlement Agreements Provide $15.5 Million for Compensation to Nigerian Human Rights Activists and to Establish Trust Fund, 8 Jun 2009

- The Case Against Shell [joint project of EarthRights International and Center for Constitutional Rights]: Wiwa v. Shell

- US Circuit Court for the Second Circuit:
- [PDF] 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:
- [PDF] Wiwa v Shell – Settlement Agreement and Mutual Release, 8 Jun 2009
- [PDF] Wiwa v. Shell - Denial of Defendants' Motion to Dismiss, 23 Apr 2009
- [PDF] Wiwa v. Shell – Dismissal of RICO claims against defendants, 18 Mar 2009

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Auteur: Lisa Misol, Researcher, Human Rights Watch, letter to editor of International Herald Tribune

In private, some multinational executives have started to question whether industry’s antagonism to regulation makes sense when it comes to human rights. They realize that only binding standards can ensure a level playing field and that, increasingly, the choice facing them is...between continuing to compete on an uneven, ever-shifting playing field and participating in the creation of universally binding and enforceable rules that apply equally to all companies. For most corporations, having clear, consistent rules would be preferable to being subjected to unfair competition and a confusing mix of standards that provides little guidance to companies and little comfort for victims of human rights abuse. This essay argues that enforceable global standards are desirable, inevitable, and, contrary to received wisdom, good for business. [refers to Gap, Shell, AngloGold Ashanti, Anglo American, Metalor]

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Auteur: Rachel Chambers, Castan Centre for Human Rights Law at Monash University [Australia], in Human Rights Brief, Washington College of Law, American University

This article will examine the Unocal litigation as part of the international movement to make transnational corporations accountable for human rights violations. Specifically, it argues that a corporation’s role in such violations creates indirect legal liability to victims, even if the direct harm was caused by another party. [also refers to lawsuits against Shell, Talisman Energy, Barclays, Citigroup, Rio Tinto]

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Auteur: Curt Goering, Senior Deputy Executive Director, Amnesty International USA

[the following sections of the syllabus focus on business & human rights issues]
Week 3: How Human Rights Issues Affect Business Operations: Recent and Current Examples (Session I)
Week 4: How Human Rights Issues Affect Business Operations: Recent and Current Examples (Session II)
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Week 8: NGO/Business Collaboration
Week 9: How Human Rights Issues Affect Business Operations: Recent and Current Examples (Session III)
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11 March 2005

The Business of Torture

Auteur: Sam Vaknin, Ph.D & former economic advisor to the Govt. of Macedonia, in Global Politician

This [cases of alleged complicity of multinationals in torture] is merely one facet of the torture business. [refers to ExxonMobil, Shell, IBM, ICL, Unocal] Torture implements are produced - mostly in the West - and sold openly, frequently to nasty regimes in developing countries and even through the Internet. [StunTech]

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Auteur: Jonathan Birchall, Financial Times

Federal Judge John Sprizzo delivered what the US business community wanted to hear late last year when he ruled that international corporations could not be sued in his court over working in apartheid South Africa...But...the business community...suffered something of a set-back a few weeks later. In mid-December, Unocal, the US oil company, announced it had reached a decision in principle to settle Alien Tort litigation over alleged complicity in human rights abuses in Burma...corporate and human rights lobbyists are eyeing each other for signs of attempts by the business community to push for legislation to curtail the scope of the [Alien Tort] statute in the new US Congress..."I think a signal has been sent," says Mr [Owen] Pell [attorney who defended companies in apartheid lawsuit] of last summer's Supreme Court decision. "You companies are capable of knowing right from wrong...if you put yourselves on the side of wrong, then there is some room under this statute for you to get sued..." [also refers to ChevronTexaco, Shell, Talisman]

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Auteur: Anita Ramasastry, Univ. of Washington School of Law

Whether you are a labor lawyer concerned about global trade issues or labor standards, an environmental activist concerned about the role of MNEs [multinational enterprises] with respect to environmental policy, or you work as an in-house counsel for a major MNE, it is important for you to understand how MNEs function as legal entities and what legal rules govern their existence. [refers to Rio Tinto, Cape plc, Wiwa lawsuit against Shell]

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Auteur: Fafo Institute for Applied Social Science & Intl. Peace Academy

It is possible to hold business entities accountable for international crimes...but the problem of jurisdiction remains a barrier to international prosecution...Domestic courts are possible venues for assessing liability of companies operating abroad...especially through the doctrine of complicity. [refers to Talisman, Rio Tinto, Unocal, Shell, Chevron (part of ChevronTexaco), ExxonMobil, Freeport-McMoRan, Cape plc]

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