Tag Archives: Kiobel versus Shell

Showing their Claws-Ogoni versus Royal Dutch Shell

shell

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/Esther Kiobel has filed an application in New York to secure documents from Shell’s US lawyers, which she could use in the Dutch action.

The filings with the US District Court for the Southern District Court of New York said she planned to begin the 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 memorandum in the application filed last week said.
Kiobel previously took her lawsuit to the United States but the US Supreme Court ruled in 2013 the case could not be heard because the alleged activities took place outside the country.

In 2009 prior to that ruling Shell had agreed in the United States to pay $15.5 million to settle lawsuits related to other activists executed at the same time as Barinem Kiobel, including author and environmental activist Ken Saro-Wiwa.    [three separate lawsuits were brought by the family of Ken Saro-Wiwa].

The Nigerian military cracked down heavily on local opposition to oil production by a Shell joint venture in the Niger Delta in the early 1990s. Kiobel alleges that Shell provided support to the military in its crackdown.  A Dutch court ruled in December that Shell may be sued in the Netherlands for oil spills at its subsidiary in Nigeria, although it did not say Shell was responsible..

Excerpts from Shell faces possible Dutch lawsuit over Nigerian activist’s execution, Reuters, Oct. 18, 2016

Suing Multinational Corporations in US Courts: Kiobel v. Shell

oil pollution

The Alien Tort Statute (ATS)… grants American district courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or of a treaty of the United States”. At the age of 190 it sprang back to life on April 6th 1979, when it was used to allow two Paraguayans to sue a former Paraguayan policeman in an American court for acts of torture committed in Paraguay.Since then, roughly 150 lawsuits have been filed against American and foreign corporations for actions committed around the world. Four local plaintiffs used the ATS to sue Unocal in a federal court in Los Angeles for human-rights violations allegedly committed during the construction of an oil pipeline in Myanmar. A human-rights organisation used it to sue Yahoo on behalf of two Chinese democracy activists for actions committed in China by a subsidiary. ATS suits against DaimlerChrysler and Rio Tinto, among others, are pending. Though most ATS cases have been dismissed or settled, the costs of settlements can be high and the negative publicity damaging.

Multinational companies will therefore cheer the Supreme Court’s unanimous decision in Kiobel v Royal Dutch Petroleum (Shell), released on April 17th, 2013. It dramatically limits the ability of plaintiffs to file suit against corporations in American courts for actions committed abroad.  The ruling stems from a case brought in New York by 12 Nigerian plaintiffs living in America. They allege that Shell was complicit in human-rights violations—including murder, rape, theft and destruction of property—committed by Nigeria’s armed forces in the region of Ogoniland. A federal appeals court dismissed their suit, arguing that the ATS provides no grounds for corporate-liability lawsuits. But as the 150 ATS suits show, other courts have disagreed. The Supreme Court agreed to hear the case in order to settle the question.

In an earlier ruling, in 2004, the court cautiously ruled that the ATS permitted lawsuits for “a modest number of international law violations”, such as piracy and crimes involving ambassadors, which would have been recognised when it was adopted. The court’s Kiobel ruling goes much further. It holds that the ATS does not apply to actions committed by foreign companies, and noted a strong presumption against applying American law outside the United States, “There is no indication,” wrote John Roberts, the chief justice, “that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms”.  In a separate concurrence, four of the court’s liberals took a slightly softer tack, arguing that the ATS should allow suits that prevent America from becoming “a safe harbour…for a torturer or other common enemy of mankind”. But that reasoning still does not permit foreign nationals to use American courts to sue foreign companies for acts committed on foreign soil.

Extraterritoriality: The Shell game ends, Economist, Apr. 20, 2013, at 34