The following case profile for Kiobel v. Shell was compiled by the Business & Human Rights Resource Centre:
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 in communicado 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 will be held on 28 February 2012.
Briefs filed by the parties
- Petitioners/plaintiffs (Kiobel), 14 Dec 2011
- Respondents/defendants (Shell) [to be added when available]
Amicus briefs filed in support of the Petitioners (Kiobel) (filed 21 Dec 2011)
- US Government
- American Federation of Labor and Congress of Industrial Organizations
- Brennan Center for Justice, New York University School of Law
- Civil Procedure Professors
- EarthRights International
- Former US Senator Arlen Specter, Human Rights First, Anti-Defamation League
- International Human Rights Organizations & International Law Experts
- International Law Scholars
- Law Professors of Civil Liberties & 42 U.S.C. § 1983
- Navi Pillay, United Nations High Commissioner for Human Rights
- Nuremberg Scholars
- Professors of Legal History
- Rutherford Institute
- Yale Law School Center for Global Legal Challenges
Amicus briefs filed in support of the Respondents (Shell)
- [to be added when available]
Commentary
- Breaking News: USG Brief in Favor of Kiobel Plaintiffs, Beth Van Schaack, Santa Clara Law School in IntLawGrrls Blog, 21 Dec 2011
- Court will hear alien tort, First Amendment cases, Tony Mauro, National Law Journal, 17 Oct 2011
- Torture suits against companies draw Supreme Court review in immunity case, Greg Stohr, Bloomberg, 17 Oct 2011
Petition for Writ of Certiorari (request for court to hear appeal)
- Petition filed by Kiobel plaintiffs, 6 Jun 2011
- rief in opposition filed by defendants, 12 Aug 2011
US Court of Appeals for the Second Circuit
- Decision dismissing Kiobel lawsuit, 17 Sep 2010
