On Friday, 16 October, from 16.00-17.00, we will organise an online discussion about the Kiobel v. Shell case,
currently before Dutch courts in the Hague. The discussion will retrace
the trajectory followed by the case in reaching The Hague, explain the
arguments raised by both parties in the proceedings, and assess the
potential relevance of the future ruling for the wider debate on
corporate accountability/liability for human rights violations.
In 1995, nine local activists from the Ogoniland region of
Nigeria (the Ogoni nine) were executed by the Nigerian authorities, then
under the military dictatorship of General Sani Abacha. They were
protesting against the widespread pollution stemming from the
exploitation of local oil resources by a Nigerian subsidiary of Royal
Dutch Shell when they were arrested and found guilty of murder in a sham
trial. Their deaths led first to a series of complaints against Royal
Dutch Shell in the United States on the basis of the alien tort statute
(ATS). One of them, lodged by Esther Kiobel, the wife of one of those
killed (Dr Barinem Kiobel), reached the US Supreme Court. Famously, the
Court decided to curtail the application of the ATS in situations that
do not sufficiently 'touch and concern' the territory of the United
This ruling put an end to Esther Kiobel's US lawsuit, but
it did not stop her, together with three other widows (Victoria Bera,
Blessing Eawo and Charity Levula), from seeking to hold the
multinational company accountable for its alleged involvement in the
deaths of their husbands. Instead, in 2017, they decided to continue
their quest for justice on Royal Dutch Shell’s home turf, before Dutch
courts in The Hague. 25 years after the death of the Ogoni nine, the
court in The Hague just finished hearing the pleas of the parties and
will render its much-awaited decision in the coming months.
- Tom de Boer (Human rights lawyer representing the claimants, Prakken d'Oliveira)
- Lucas Roorda (Utrecht University)
- Tara van Ho (Essex University)
- Antoine Duval, Senior researcher at the T.M.C Asser Instituut, will moderate the discussion
Register here to join the discussion on Friday.
This report compiles all relevant news,
events and materials on Doing Business Right based on the daily coverage
provided on our twitter feed @DoinBizRight and on various websites. You are
invited to complete this compilation via the comments section below. Feel free
to add links to important cases, documents and articles we might have
Shell-Eni Bribery Case: On 5 March, the corporate bribery trial against oil companies Shell
and Eni was postponed to 14 May by a court in Milan, Italy. The charges against the companies are bribery
and corruption in the 2011 purchase of a Nigerian offshore oilfield, one of the
most valuable oilfields in Africa. Although both firms denied
the charges, the corruption watchdog Global Witness claimed
that hundreds of millions of dollars had been paid to Nigeria’s former
president and his former oil minister as pocket bribes. Global Witness calls
the case one of the biggest corruption scandals in the history of the oil
sector. The trial in the Milan court is expected to last 12-18 months.
Jesner v. Arab Bank: On 24 April, in a 5-4 vote, the US Supreme Court ruled in
v. Arab Bank case that foreign corporations cannot be brought before US
courts under the Alien Tort Statute (ATS). Between 2004 and 2010, thousands of
foreign nationals sued Arab Bank under the ATS, claiming that the Bank’s
officials allowed money transfers through the New York branch of the Bank to
Hamas who committed violent acts in Israel and Occupied Palestinian Territories.
The Supreme Court held that foreign corporations cannot be sued under the ATS.
Furthermore, the Court claimed that international law today does not recognize
“a specific, universal, and obligatory norm of corporate [tort] liability”,
which is a prerequisite to bringing a lawsuit under the ATS. In the Court’s
lead opinion, Justice Kennedy stated that "Courts are not well suited to
make the required policy judgments that are implicated by corporate liability
in cases like this one.” In her dissenting opinion joined by three other
justices, Justice Sotomayor claimed that the decision "absolves
corporations from responsibility under the ATS for conscience-shocking
Fifth Anniversary of Rana Plaza:
April 24th also marked the fifth anniversary of the deadly collapse of Rana
Plaza in Dhaka, Bangladesh. Rana Plaza was a five-story commercial building
which housed several garment factories employing around 5000 people. The global
outcry after the disaster which claimed at least 1134 lives led to numerous
initiatives to change business-as-usual in the garment and textile supply
chains in Bangladesh and beyond. Despite these initiatives which employed
various approaches to the issue of worker safety in the supply chains, it is widely
that there is still a long way to go to create a safe working environment for
workers in the garment and textile supply chains. On 12 April, the Asser
Institute hosted a one-day conference on Rana Plaza to take stock of the
regulatory and policy initiatives aimed at improving workers’ safety in the
garment supply chain (You will find our background paper here).
Okpabi v. Royal Dutch Shell - Episode. 3?
On 27 April, more than 40 UK and international human rights, development and
environment NGOs, later supported by
academics from different states, urged the UK Supreme Court to allow two
Nigerian fishing communities to appeal against the Okpabi v Royal Dutch Shell
ruling of the Court of Appeal in February which denied responsibility for
UK-based Royal Dutch Shell for the pipeline spills, dating back as far as 1989,
which affected approximately 40000 Nigerian farmers and fishermen. The NGOs claimed
that the Court of Appeal’s decision erred in many ways as it seriously restricts
parent company liability and limits the options available to victims of
corporate human rights violations seeking remedy in the UK.More...
The headline of the New York Times on 24 April summed it up: ‘Supreme Court Bars Human Rights Suits Against Foreign Corporations’. The Jesner decision,
released earlier that day by the U.S. Supreme Court, triggered a tremor
of indignation in the human rights movement given the immunity it
conferred to foreign corporations violating human rights against suits
under the Alien Tort Statute, and led to a flood of legal and academic
commentaries online. This panel discussion, organised with the support
of the Netherlands Network of Human Rights Research, will
address various aspects of the judgment. Its aim is to better
understand the road travelled by American courts leading up to the
decision with regard to the application of the Alien Tort Statute to
corporations, to compare the decision with the position taken in other
jurisdictions, and to discuss the ruling's potential broader impact on
the direction taken by the business and human rights movement.
Where: T.M.C. Asser Instituut in The Hague
When: Thursday 24 May at 2:30 pm
- Phillip Paiement (Tilburg University) - The Jesner case and the ATS: An American perspective
- Lucas Roorda (Utrecht University) - A comparative perspective on Jesner and corporate liability for human rights violations
- Nadia Bernaz (Wageningen University) - Lessons for the business and human rights movement after Jesner
Editor's note: Sara Martinetto is an intern at T.M.C. Asser Institute. She has recently completed her LLM in Public International Law at the University of Amsterdam. She holds interests in Migration Law, Criminal Law, Human Rights and European Law, with a special focus on their transnational dimension.
On 29th June 2017, four Nigerian widows launched a civil case against Royal Dutch Shell (RDS), Shell Petroleum N.V., the Shell Transport and Trading Company, and its subsidiary Shell Petroleum Development Company of Nigeria (SPDC) in the Netherlands. Esther Kiobel, Victoria Bera, Blessing Eawo and Charity Levula are still seeking redress for the killing of their husbands in 1995 in Nigeria. They claim the defendants are accomplices in the execution of their husbands by the Abasha regime. Allegedly, the companies had provided material support, which then led to the arrest and death of the activists.
In the light of this lawsuit, it is interesting to retrace the so-called ‘Ogoni Nine’ legal saga. The case saw the interplay between multiple jurisdictions and actors, and its analysis is useful to point out some of the main legal issues encountered on the path to hold corporations accountable for human rights abuses. More...