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Kiobel Writ: PROCEEDINGS IN THE UNITED STATES

The defendants were accused of complicity in various human rights violations and crimes committed against the Ogoni in Nigeria, including summary executions, crimes against humanity, torture, inhuman treatment, arbitrary arrest and detention, criminally negligent homicide, indecent assault and ill-treatment. In the case against Royal Dutch/Shell it was also argued that the company acted contrary to the Racketeer Influenced and Corrupt Organizations (RICO) Act. On 8 June 2009, with the trial on the point of starting, Shell and the claimants agreed an out-of-court settlement. Shell paid the claimants a sum of $15.5 million in damages. 

 By John Donovan

The numbered paragraphs below are extracted from the 138 page Esther Kiobel Writ served on multiple Royal Dutch Shell companies on 28 June 2017. More information about the latest litigation is provided after the extracts.

PROCEEDINGS IN THE UNITED STATES

5.1 Introduction

120. Following the execution of their husbands, the claimants were subject to constant threats and harassment by the Nigerian regime.162 Esther Kiobel, like many other Nigerians who became victims of Shell and the military regime, resettled in the United States from the refugee camp in Benin. In the United States two groups of victims and surviving dependants demanded damages from Shell in a civil action. The Saro-Wiwa case ended in an out-of-court settlement (see section 5.2). In the case brought by inter alia claimant 1, Esther Kiobel, the American Supreme Court ultimately did not consider that the American courts had jurisdiction to judge the case (see section 5.3).

121. For clarification we briefly consider these American proceedings in this chapter.

5.2 Wiwa case

  1. On 8 November 1996 various surviving dependants of the Ogoni 9, and various victims of the violence in Ogoniland, summoned Shell to appear before the American courts. The summons was initially served on Royal Dutch Petroleum Company and Shell Transport and Trading Company (Royal Dutch/Shell). In 2001 Brian Anderson, Managing Director of SPDC between 1994 and 1996, was also summoned. In 2003 the case was again extended and subsidiary SPDC was itself also summoned.
  2. The defendants were accused of complicity in various human rights violations and crimes committed against the Ogoni in Nigeria, including summary executions, crimes against humanity, torture, inhuman treatment, arbitrary arrest and detention, criminally negligent homicide, indecent assault and ill-treatment. The cases were brought under the Alien Tort Claims Act (ATCA, also known as the Alien Tort Statute, ATS) and the Torture Victim Protection Act (TVPA). In the case against Royal Dutch/Shell it was also argued that the company acted contrary to the Racketeer Influenced and Corrupt Organizations (RICO) Act.
  3. Following the discovery phase, in which evidentiary material was gathered and submitted, and years of legal wrangling over the jurisdiction of the American courts, the District Court of Southern New York accepted jurisdiction on 23 April 2009. The hearing of the substance of the case, which by then had been pending for 13 years, began on 26 May 2009. On 3 June 2009 the Court of Appeal of the Second Circuit decided that Shell must grant even greater access to business information, confidential or otherwise, than had previously been permitted by the District Court.
  4. On 8 June 2009, with the trial on the point of starting, Shell and the claimants agreed an out-of-court settlement. Shell paid the claimants a sum of $15.5 million in damages. The sum was used in part to set up a trust fund for the Ogoni population.

5.3 Kiobel case

126. On 1 September 2002 Royal Dutch Petroleum Company and Shell Transport & Trading Company were summoned by Esther Kiobel (also on behalf of her executed spouse dr. Barinem Kiobel) and 11 other (surviving dependants of) Nigerian activists from the Ogoni area. In 2004 subsidiary SPDC was also summoned. Legally and substantively the case was largely the same as the Wiwa case discussed above.

127. In contrast to the Wiwa case the parties in the Kiobel case did not reach an out-of-court settlement. Instead the question of jurisdiction was fought out all the way to the Supreme Court of the United States. In a case attracting global attention, the Supreme Court decided that the territoriality principle (and therefore the “presumption against extraterritoriality”) precluded the jurisdiction of the American courts under the Alien Tort Claims Act.163 Shell could only be held liable under the ATCA if a case had sufficient connection to the American legal sphere. The Supreme Court decided that this was not the case, because Shell was an Anglo-Dutch company and the events had taken place in Nigeria. After eleven years of litigation, Esther Kiobel had ended up empty handed.

5.4 Evidentiary material

  1. in the so-called discovery for the benefit of the Wiwa and Kiobel cases in the United States, Shell has had to submit a large amount of evidentiary material. The substantiation of this summons is for an important part based on evidence originating from these discovery proceedings.164
  2. Some of the evidence however is protected by a confidentiality agreement, on the basis of which confidentiality in respect of that material and the return or destruction of that material after the proceedings was required. In a judgment of 24 January 2017, the District Court of the Southern District of New York ordered Shell’s lawyers Cravath, Swaine & Moore LLP on application of Esther Kiobel (again) to submit the material in the Wiwa and Kiobel cases previously given up.165 The enforceability of this judgment is suspended pending the appeal that Cravath has brought against it.
  3. To avoid further delay, and because the claimants think they already have sufficient evidentiary material at their disposal to substantiate their claim, they have decided not to await the course of the appeal proceedings in the United States. It is however an established fact that the documents requested were submitted at the time because of their direct relevance to this case. The claimants therefore find that under Section 21 of the Code of Civil Procedure (CCP) Shell has an obligation to submit the documents concerned to the court in the Netherlands too. They ask your court to consider ordering Shell to do so under Section 22 of the CCP. If necessary, the claimants also invoke Section 843a of the CCP for this purpose.
  4. The non-confidential evidentiary material that came to light in the American discovery proceedings, including a large number of witness interviews with victims, eye witnesses and Shell employees, is being used in this summons. The statements made under oath for the purposes of the American case – which were set down in writing – are to be regarded by your court as written evidence. Since this written record is a literal representation of what was said by all those present, the judge who will rule in the principal action has sufficient to go by to assess each statement on its merits.166

Footnotes

162 Esther Kiobel and Victoria Bera therefore fled to Benin. Before Esther decided to flee, her house is in the city was set on fire. Shortly after her departure, her country house was also burned to the ground. Blessing Nordu stated that she continued to be harassed for a long time by Celestine Miebe [Meabe], one of the witnesses in the Ogoni 9 trial who it was said was bribed by Shell (see chapter 8.6.1). Blessing also calls him one of the “Shell agents”.

163 Exhibit 197: Kiobel, Individually and on behalf of her late husband Kiobel, et al. v. Royal Dutch Petroleum Co. et al., 133 S.Ct. 1659 (2013).

164 Non-confidential documents that were part of the casefile are accessible through the American online electronic public access service Pacer, available at: https://pacer.login.uscourts.gov/csologin/login.jsf <accessed 24 April 2017>. Several media, among which www.shellguilty.com, have publicized material as well.

165 Exhibit 196: District Court of the Southern District of New York, per Judge Hellerstein, In Re Petition of Esther Kiobel, Opinion and Order Granting Petition, 24 January 2017.

166 Such as Court of Rotterdam, 8 August 2012, para. 5.9, 2012: ECLI:NL:RBROT:2012:BX4521; Court of Appeal Amsterdam, 24 October 1996, roll no. 490/96 SKG, NIPR 1997/120.

Footnotes end

FURTHER INFORMATION ABOUT THE WRIT

The numbered paragraphs above are extracted from the English translation of a 138 page Writ of Summons served on Royal Dutch Shell companies on 28 June 2017 by Dutch Human Rights law firm Prakken d’Oliveira. They represent four widows including Esther Kiobel who hold Shell liable for the murder of their husbands individual Ogoni leaders now known collectively as the ‘Ogoni Nine‘. MOSOP Chairman Ken Saro-Wiwa was one of the group. For the purpose of this online publication, the footnotes are indicated in red text.

Disclosure: The lead claimant Esther Kiobel, Channa Samkalden of the Dutch human rights law firm Prakken d’Oliveira representing the widows, and the acclaimed human rights organisation Amnesty International, have all acknowledged the involvement of John Donovan in bringing *this case. (*See Writ of Summons in English and Dutch served on Shell 28 June 2017 – copy obtained from US Pacer public electronic court records)

Shell blanket denial: Shell’s blanket denial of any responsibility for the ‘Ogoni Nine’ executions and related events/allegations can be read here. The denial does not explain why Shell settled for $15.5 million in June 2009 a case legally and substantively the same.

The Guardian: Shell pays out $15.5m over Saro-Wiwa killing: 9 June 2009

Shell to Pay $15.5 Million to Settle Nigerian Case: The New York Times: 8 June 2009

Shell, Nigerian families settle suit for $15.5 million: Reuters: 8 June 2009

Shell to pay $15.5 million to settle Nigeria claims: CNN: 8 June 2009

Shell Settles Human Rights Suit for $15.5 Million: Fox News/AssociatedPress: 8 June 2009

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