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.

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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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Tous les éléments de cette histoire

Article
+ English - Cacher

Auteur: Bart H. Meijer, Reuters (UK)

A Dutch court said on Wednesday it has jurisdiction to hear a damages suit brought against Royal Dutch Shell by four widows of activists executed by the Nigerian government in 1995.

In a preliminary decision, judges at the Hague District Court said they would allow the suit to go forward, a rare win in a decades-long legal fight, though the claimants must still prove their case. Shell denies wrongdoing or responsibility.

"The court considers itself capable" of hearing the case, said presiding judge Larissa Alwin, reading the decision of a three-judge panel. "This procedure will continue."

Dutch courts do not award large punitive damages claims, though the case has the potential to embarrass Shell and provide a measure of comfort for the activists' families if it finds the company bears responsibility in their deaths...

Shell, headquartered in the Hague, paid $15.5 million to victims' families in the United States in a 2009 settlement in which it also denied any responsibility or wrongdoing. The U.S. Supreme Court rejected U.S. jurisdiction in 2013.

"I am glad that the (Dutch) court has found it has jurisdiction," said lead plaintiff Esther Kiobel, whose husband Barinem Kiobel was among the executed activists.

"My husband was killed like a criminal. I want him to be exonerated."

Judge Alwin cautioned that the three-judge panel did not agree with assertions by the widows that Shell should have done more to prevent their husbands' executions...

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Article
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Auteur: Kate Hodal, Guardian

A Dutch court has ruled that it has jurisdiction to determine whether Royal Dutch Shell was complicit in the Nigerian government's execution of the Ogoni Nine, environmental protesters who fought against widespread pollution in the Niger Delta.

In a 50-page ruling hailed by campaigners as an "important precedent" for global human rights cases, judges at The Hague's district court said on Wednesday that they would allow the case to go forward, also indicating that the claimants – widows of four of the activists – would be able to bring further evidence to prove their case.

The ruling, which was partially read out to members of the public, also stipulated that the oil firm must now hand over confidential internal documents.
The four widows accuse Shell of instigating a deadly crackdown by the military government of the time against peaceful protesters in Ogoniland, in the Niger Delta, the most valuable oil-producing region in Africa.

Nine members of the Movement for the Survival of the Ogoni People, including its leader, Ken Saro-Wiwa, were executed in 1995 by the Nigerian authorities, following a widely discredited trial.

Esther Kiobel, whose husband, Dr Barinem Kiobel, was among the nine executed, said the decision would help exonerate the men.

"We shall prove our case. We have the evidence," she said. "I wouldn't be fighting this fight if I didn't have what it takes. I've been fighting for decades."

It has been a 24-year battle to get even this far. After exhausting all legal recourse in Nigeria, Kiobel first brought a class action against Shell in New York in 2002, where the US supreme court finally ruled in 2013 that the case had been filed in the wrong jurisdiction. A writ was then brought in The Hague, where the oil multinational is based.

Shell denies all allegations that it was complicit in the deaths of the Ogoni Nine or human rights abuses, but it has acknowledged that it was aware Nigeria's military was taking action to protect the company's infrastructure. In 2009, it paid out $15.5m (£11.9m) in an out-of-court settlement to Saro-Wiwa's family and others, but denied any wrongdoing.

 

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Auteur: Amnesty International

The District Court of The Hague today issued an interim ruling in the case brought by Esther Kiobel and three other women with regard to Shell’s involvement in the unlawful arrest, detention and execution of their husbands by the Nigerian military.

The court ruled in favour of the plaintiffs, that the court does have jurisdiction of the case and that this should not be time barred. It also ruled that Shell should hand over some confidential internal documents to the plaintiffs’ lawyers, and that they would have the opportunity to examine witnesses.

Mark Dummett, Amnesty International’s Head of Business and Human Rights, said:

“This decision marks a vital step towards justice for Esther and the other plaintiffs. It also sets an important precedent for other victims around the world who are seeking to hold powerful corporations to account, and who struggle to access justice.

“We salute Esther Kiobel, Victoria Bera, Blessing Eawo and Charity Levula. It’s only because of their courage and persistence that we’ve got this far.

“The women believe their husbands would still be alive today were it not for Shell’s relentless pursuit of profit, which encouraged the Nigerian government’s bloody crackdown on protesters even when it knew the deadly human cost. Shell might now face questioning in a court of law about what they knew and how they contributed to this horrifying event in Nigerian history.

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Article
3 May 2019

Un tribunal des Pays-Bas se déclare compétent dans l’affaire où 4 veuves nigérianes accusent Shell de complicité dans l’arrestation et l’exécution de leurs époux

Auteur: Amnesty International

« Nigeria/Pays-Bas : le jugement concernant Shell est « une avancée cruciale vers la justice » », 1er mai 2019

Le tribunal de district de La Haye a rendu le 1er mai 2019 un jugement provisoire dans l’affaire intentée par Esther Kiobel et trois autres femmes concernant l’implication de Shell dans l’arrestation illégale, la détention et l’exécution de leurs époux par l’armée nigériane. 

 Le tribunal a statué en faveur des plaignantes, assurant qu’il est compétent pour juger de cette affaire qui ne doit pas faire l’objet d’un délai de prescription.

Le tribunal a également statué que Shell devait remettre des documents internes confidentiels aux avocats des plaignantes qui auront la possibilité d’interroger les témoins.

Amnesty International a salué la décision du tribunal, qui a ordonné à Shell de rendre publics certains documents internes, mais regrette qu’il n’ait pas ordonné que soient remis tous les documents demandés par les avocats d’Esther…

Esther Kiobel a intenté un premier procès à Shell en 2002 à New York mais, en 2013, la Cour suprême américaine a statué que les États-Unis n’étaient pas compétents en l’espèce, ce qui signifie que les tribunaux américains n’ont jamais eu à examiner sur le fond les allégations formulées contre Shell…

Les quatre plaignantes accusent Shell d’avoir joué un rôle déterminant dans l’arrestation et la détention illégales de leurs maris, les atteintes à leur intégrité physique, les violations de leurs droits à un procès équitable et à la vie, et leur propre droit à une vie de famille. Amnesty International a aidé Esther Kiobel à porter l’affaire devant la justice néerlandaise en 2017, et a publié un document de synthèse intitulé In The Dock, qui décrit en détail l’implication de Shell dans les arrestations et les exécutions…

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