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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Tous les éléments de cette histoire

Article
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Auteur: 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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Auteur: 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
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Auteur: 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
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Auteur: 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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Auteur: 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
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Auteur: 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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Auteur: 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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Réponse
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9 April 2014

Rio Tinto's response

Auteur: 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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Auteur: 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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Réponse
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Auteur: Shell

Shell companies have the right and the responsibility to make our position known to governments on any matters which affect us.

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