By John Donovan
Over 100,000 Shell internal documents assembled by Shell in relation to a thwarted legal action brought against Shell by Esther Kiobel over a decade ago are the subject of a ferocious legal battle. In the mean time, they are stored under the control of Shell lawyers in a secure US warehouse at an undisclosed address. Esther holds Shell responsible for the murder of her husband Dr Barinem Kiobel – one of the ‘Ogoni 9‘. Shell’s US lawyers are currently appealing a US federal court decision that Esther Kiobel should be given access to the discovery in connection with the same human rights case she is bringing against Shell in the Netherlands.
The US Court of Appeals has just been notified that “a writ of summons has been served on Royal Dutch Shell, Shell Petroleum NV, Shell Transport & Trading Co., and Shell Petroleum Development Co. of Nigeria (collectively, “Shell”), in the Netherlands.”
The declaration below formed part of the notification:
Declaration of Channa Samkalden, Attorney-at-Iaw in The Netherlands
Pursuant to 28 U.S.C. § 1746, I, Channa Samkalden, declare as follows:
- I am the attorney of Esther Kiobel in litigation arising from human rights violations carried out by Royal Dutch Shell in Nigeria. I refer to my previous declarations of 4 October and 11 November 2016. In this declaration I explain recent developments concerning the commencement of proceedings against Shell in the Netherlands.
- I stated in my previous declarations that I had intended to bring the lawsuit against Shell by the end of 2016. I delayed in doing so, however, in anticipation of obtaining documents from the United States. I concluded that I could not wait indefinitely, however, and so on 28 June 2017 I commenced proceedings by serving a writ of summons on the Shell defendants.
- Copies of the executed writ of summons are attached as Exhibit A (in Dutch) and Exhibit B (in English).
- Under Dutch procedural law, the service of the writ of summons commences the lawsuit and interrupts a limitations period, but nothing has yet been filed in court and Shell is not currently before a Dutch court. Instead, the claimant sets a date at least three months in advance for a foreign defendant to appear in court. In this case, Shell must appear on 11 October 2017. Nothing will be filed in court until shortly before that date.
- I expect that Shell’s response will be to challenge jurisdiction, because that is what they have done in other cases arising out of Nigeria. Although jurisdiction over Dutch defendants is secure, I expect Shell to argue that any non-Dutch companies involved – including the Nigerian company Shell Petroleum Development Co. of Nigeria – can only be sued in Dutch court if the case against them is intertwined with the cases against the Dutch companies at issue (including Royal Dutch Shell).
- I understand that, in the Kiobel and Wiwa cases in the United States, one of the questions was the extent of involvement of the Shell parent companies in the events in Nigeria The evidence relevant to that question would also be relevant to Shell’s anticipated jurisdictional challenge in the Netherlands. All evidence of Shell’s liability is also of course relevant to the claims against the parent companies.
- While it may be possible to amend the claim and submit additional evidence at later points in the case, ordinarily, the court will decide jurisdiction based on the evidence submitted with the writ of summons. We will be given the opportunity to respond to Shell’s jurisdiction defence (and to submit additional evidence for that purpose). but Dutch procedural law would not normally allow us to obtain additional evidence from Shell pertaining to the role of the parent company until the court has decided jurisdiction.
- We can submit additional evidence on 11 October – and possibly shortly thereafter — • however. because Shell will not respond before then. Shell’s response will be due six weeks after 11 October. and this deadline is often extended by another six weeks.
- I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief.
Signed in Amsterdam. the Netherlands
Channa Samkalden 5 July 2017
EXTRACT ENDS
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)
Shell blanket denial: Shell’s blanket denial of any responsibility for the ‘Ogoni Nine’ executions and related events/allegations can be read here.
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