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.
C русской версией описания этого дела можно ознакомиться здесь.
Proceedings in the USA
In 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.
- "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
- [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
All components of this story
Overcoming unequal access to information - frequent barrier to remedy for victims of corporate abuse
Author: Elodie Aba, Business & Human Rights Resource Centre
[I]nequality in access to information reinforces the existing imbalance of power between victims and companies, denying to victims information required to file a case or prove their claims. ..[G]ranting access to evidence can rectify the imbalance...[C]ourts should ease access to information wherever a company holds it, following the examples of courts and laws in the US, Canada, and Netherlands. Information sharing and international collaboration between courts is beneficial for all stakeholders because it facilitates resolution of disputes...[In addition,] [s]tronger legislation similar to the US [Foreign Legal Assistance] Statute...would go a long way...
[refers to Chevron, Hudbay Minerals, Shell]
Commentary: How to use US Foreign Legal Assistance statute to access information for lawsuits abroad; Kiobel case against Shell as an example
Author: Upasana Khatri, OxHRH Blog (UK)
"Kiobel v. Cravath: An Example of How a Little-Known U.S. Law can be Used as a Pre-Litigation Tool Overseas", 22 Feb 2017
When Esther Kiobel...could not find justice by suing Shell in U.S courts, she decided to sue...in the Netherlands...Ms. Kiobel returned to the same federal court where she had filed her case...fourteen years earlier, this time under FLA [Foreign Legal Assistance statute] to access the documents held by Cravath [Cravath, Swaine & Moore LLP] and use those documents to assist her Dutch lawsuit. Cravath...claimed that the documents should not be turned over because Ms. Kiobel had yet to commence her action in the Netherlands...The court, however,...granted the application...[A] FLA can be filed to assist lawsuits that are within “reasonable contemplation.” Applying this standard, the court found that the requirement under Dutch procedure that plaintiffs present a certain amount of evidence at the outset of an action was a compelling explanation for why Ms. Kiobel had not yet commenced the litigation...[T]he court noted that Ms. Kiobel had met her burden of providing objective indicia that the action was within reasonable contemplation, including proof that her Dutch lawyer had drafted a writ of summons, applied and obtained legal aid funding, and sent liability letters to Shell...
US law firm asks judge to delay order compelling it to give documents to Dutch court in lawsuit against Shell for abuses in Nigeria
Author: Suevon Lee, Law360 (USA)
"Cravath Wants Shell Docs Order Stayed During Appeal", 13 Feb 2017
Cravath Swaine & Moore LLP on Monday urged a New York federal judge to stay a[n]...order compelling the firm to turn over Royal Dutch Shell documents for planned litigation against the energy giant in the Netherlands...Kiobel plans to sue Shell in the Netherlands for alleged complicity with Nigerian authorities in alleged civil liberties and human rights violations against individuals who opposed Shell’s activities in the Ogoni region...Cravath, which defended Shell against similar suits in the U.S. and gathered a trove of documents...argues that U.S. District Judge...should stay his order...Cravath, which has been ordered to turn over the documents...contends there is no harm in staying the order while an appellate resolution is pending. The...firm contends it will suffer irreparable injury should it be required to produce the documents...Cravath argues that foreign firms will be disinclined to hire U.S. counsel for litigation matters if the judge’s order stands, given the scope of the discovery mandate...She contends...that obtaining the Shell documents will assist her planned litigation in the Netherlands...
US court grants access to relevant evidence in Kiobel case to be used in lawsuit against Shell in the Netherlands
Author: Upasana Khatri, Earth Rights International
"U.S. Court Assists with Dutch Human Rights Lawsuit Against Shell", 12 Jan 2017
When Esther Kiobel...could not find justice by suing Shell in U.S courts, she decided to sue the Dutch oil giant in the Netherlands...Ms. Kiobel and her Dutch lawyers utilize...the Foreign Legal Assistance (FLA) Statute...to gain access to important documents from the original U.S. case...These documents were in the possession of...the law firm that defended Shell in the U.S. litigation...In 2013...the United States Supreme Court dismissed Ms. Kiobel’s case against Shell on jurisdictional grounds...Ms. Kiobel turned to the courts of Shell’s home country, the Netherlands...Dutch procedural law requires plaintiffs in civil actions to present...their evidence at the opening of their case...While all of this evidence had been turned over to Ms. Kiobel in the course of the U.S. litigation, much of it was required to be destroyed at the end of that case...Ms. Kiobel returned to the same district court where she had filed her case against Shell 14 years earlier...to request access to evidence that may prove critical to finally bringing Shell to justice...Judge...granted her FLA application...
Author: Gwynne Skinner, Robert McCorquodale, Olivier De Schutter & Andie Lambe
"第三大支柱： 讓跨國公司侵犯人權行為的受害者獲得司法救濟", 2013年2月
Author: Gwynne Skinner, Robert McCorquodale, Olivier De Schutter & Andie Lambe
"第三大支柱： 让跨国公司侵犯人权行为的受害者获得司法救济", 2013年2月
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Widow of Nigerian activist to sue Shell in Netherlands alleging company was complicit in killing of her husband
Author: Tom Bergin, Reuters (UK)
"Shell faces possible Dutch lawsuit over Nigerian activist's execution", 16 Oct 2016
The widow of a Nigerian activist is planning to sue Royal Dutch Shell in the Dutch courts alleging the oil company was complicit in the execution of her husband by the Nigerian military in 1995, court documents filed in the United States last week show. Esther Kiobel has filed an application in New York to secure documents from Shell’s U.S. lawyers, which she could use in the Dutch action. The filings with the U.S. District Court for the Southern District Court of New York said she planned to begin that action before the end of the year. “Ms. Kiobel will demonstrate that Shell encouraged, facilitated, and conspired with the Nigerian government to commit human rights violations against the Ogoni people,”...A Shell spokesman said on Sunday: “Shell remains firmly committed to supporting fundamental human rights in line with the legitimate role of business. We have always denied, in the strongest possible terms, the allegations made by the plaintiffs in this tragic case." Kiobel previously took her lawsuit to the United States but the U.S. Supreme Court ruled in 2013 that the case could not be heard because the alleged activities took place outside the country...
Author: Michael Goldhaber, American Lawyer (USA)
"The Global Lawyer: The 'Zombie' Alien Tort, Three Years After Kiobel", 12 May 2016
When the U.S. Supreme Court restricted the reach of the Alien Tort Statute in Kiobel v. Royal Dutch Shell, I wrote that it had created a "zombie doctrine,” leaving the corporate alien tort not quite alive and not quite dead. Three years later, the zombie is looking rather spry. On Thursday the U.S. Court of the Appeals for the Fourth Circuit heard oral argument in an alien tort case accusing a military contractor of torturing detainees at Abu Ghraib prison. The case…was dismissed…on political question grounds after the Fourth Circuit had refused to dismiss it under Kiobel. Two weeks ago…, a different judge declined to dismiss the case against the psychologists who designed the "black site" interrogation program on either Kiobel or political question grounds…The Supreme Court has passed on the chance to revisit Kiobel at least twice…Most alien tort cases will continue to be blocked by defenses like justiciability or forum non conveniens…Prudent plaintiffs lawyers will develop strategies under state law, or under acts designed to combat terror, torture, or human trafficking. I stand by my point that the Alien Tort Statute requires sympathetic interpretation.
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Author: Timothy J. Coleman and Emily B. Holland, Freshfields Bruckhaus Deringer in New York Law Journal
"Touching and Concerning 'Kiobel': Continuing Implications", 18 May 2015
April marked the two-year anniversary of the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum…Kiobel further restricted the district court's ability to recognize common law causes of action under the Alien Tort Statute (ATS) and articulated a new "touch and concern" test for determining when it is permissible for an ATS claimant to seek the extraterritorial application of federal law. Although it did not bar all extraterritorial claims, the majority opinion…shut the door to most ATS suits brought by foreign plaintiffs against foreign defendants for conduct occurring on foreign soil…The full implications of Kiobel will become clearer as courts continue to flesh out the contours of "touch and concern," and lawyers on both sides of the issue concur another Supreme Court decision may be required to clarify exactly when U.S. companies can be sued.
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Author: Scott Flaherty, Litigation Daily (USA)
Months after a federal appeals court rejected efforts to hold Chiquita…liable for facilitating war crimes in Colombia, [a lawyer has] filed a Supreme Court petition on behalf of thousands of Colombians who allege their relatives were murdered by the United Self-Defense Forces…, or…a paramilitary group that Chiquita has admitted to supporting. The…petition…challenges a July decision by the U.S. Court of Appeals for the Eleventh Circuit, which found that Chiquita's alleged conduct didn't have enough connection to the U.S…."The Chiquita case clearly meets the test set out in Kiobel," [the plaintiff’s lawyers] said…."We have a U.S. corporation making decisions from the [U.S.] to finance terrorism in violation of U.S. law, and our nation has a strong interest in addressing this ..."…"Much as plaintiffs would like to portray it differently, there is no denying that their complaints assert claims for alleged violence in Colombia, by Colombians, against Colombians," said [Chiquita’s lawyers]… "The Eleventh Circuit's decision that the ATS does not provide jurisdiction for such claims is entirely consistent with Kiobel." With the high court appeal, the plaintiffs in the Chiquita case are looking to put the brakes on the federal courts' recent narrowing of the Alien Tort Statute's scope and its application to overseas conduct.
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