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.
The ‘Ogoni Nine’
‘Ogoni Nine’ is the name given by the media to a group of Nigerian men – Saturday Dobee, Nordu Eawo, Daniel Gbooko, Paul Levera, Felix Nuate, Baribor Bera, Barinem Kiobel, John Kpuine, and Ken Saro Wiwa – who were arrested for the alleged murder of four people. On 10th November 1995, they were executed in Port Harcourt, Southern Nigeria. To understand what led to this episode, it is important to provide some historical context.
Royal Dutch Shell has been undertaking drilling operations in Nigeria since 1958, carried out through SPDC. As explained by the UNEP environmental assessment report of 2011, both water and land were polluted by the extraction of oil and gas, causing massive environmental harm. This drove the inhabitants of Ogoniland, a region in the Niger Delta, to strongly oppose those activities. Thus, they created the Movement for the Survival of the Ogoni People (MOSOP), lead by Ken Saro-Wiwa: in 1993, the movement counted more than 300 000 activists, half of the Ogoni population. They engaged in protests against the Nigerian government – which was accused of turning a blind-eye to Shell’s activities, since they provided for the majority of Nigeria’s export earnings - and against companies extracting the oil, Shell amongst others.
In 1994, the ‘Ogoni nine’ were apprehended and held in military custody; no charges were pressed during their first eighteen months in prison. Eventually, a special military court tried them for the murder of four people, they were found guilty, and then hanged. The manner in which the trial was conducted caused the outrage of the international community and ultimately resulted in the suspension of Nigeria from the Commonwealth.
The Wiwa cases in the New York courts
The first attempt to seek justice for the execution of the nine members of MOSOP took place in 1996, when the son of Ken Saro-Wiwa filed three different lawsuits in a New York District court: one against Royal Dutch Petroleum, one against Shell Petroleum Development Company, and the last against Brian Anderson, the head of Nigerian operations at Royal Dutch Shell. The plaintiff alleged the complicity of Shell in the human rights violations perpetrated by the Nigerian government against MOSOP. In particular, the plaintiff claimed that the company provided material support both to the repression of Ogoni activists during protests and to the actual apprehension of the Ogoni Nine.
Among other things, Shell was accused of offering transport, food and property to Nigerian troops, used to commit human rights abuses, which, according to the plaintiff, amounted to crimes against humanity. Therefore, the claims were brought both under the Alien Tort Statute (ATS), the Torture Victim Protection Act (TVPA), and the Racketeer Influenced and Corrupt Organizations (RICO) Act.
After thirteen years of legal battles, the parties reached a settlement: Shell paid 15.5 million dollars, covering compensation and legal expenses. However, the company issued no admission of guilt or apologies: it submitted that the payment was given to “aid the process of reconciliation”. Without a doubt, the extrajudicial settlement was a victory for the Ogoni people. However, the absence of a final ruling prevents an in-depth analysis of the multiple legal issues raised by the case.
Nevertheless, one aspect should be highlighted: the suit resisted numerous attempts by the defendant to have the case dismissed on jurisdictional ground. Specifically, the Court of Appeal, overruling the first instance’s dismissal, carried out an in-depth analysis on why the claim fell within the scope of US jurisdiction. It was found that Shell performed a variety of activities in the U.S. and that the claimant was also residing there. Therefore, there were no grounds to dismiss the case, neither under personal jurisdiction, nor under forum non conveniens. These conclusions remain particularly important, especially in the light of the following Kiobel case.
The Kiobel case and the Alien Tort Statute
In 2002, Esther Kiobel filed a civil claim against Shell under the Alien Tort Statute (ATS). This 1789 American Statute allows US District Courts to exercise civil jurisdiction on a claim brought by an alien alleging the violation of the law of nations. The plaintiff accused the defendant of aiding and abetting the Nigerian government to commit the violations of international law at hand in the Wiwa proceedings.
The case made it all the way to the Supreme Court, which famously held that the ATS was not applicable to the fact pattern. The 2013 decision of the Supreme Court was based on two main Arguments. First, the Court seemed unconvinced that the norms allegedly violated are “specific, universal and obligatory” as prescribed in Sosa v. Alvarez-Machain et al. Second – and most importantly – the conduct alleged by the plaintiff does not “touch and concern” the U.S. with a sufficient force, which will allow rebutting the presumption against extraterritorial application of the Statute.
The ruling of the Supreme Court attracted many comments and criticism: specifically, the concerns revolve around the interpretation of the ATS’ scope of application, and its possible impact on the outcome of other cases. Indeed, the application of the Statute turns out to be substantially limited by the narrow interpretation given in Kiobel. Regardless of the nationality of the parties, the Court seems to imply that the conduct should take place – at least partly – in the United States. Mere corporate presence is not considered to be enough of a link to ground jurisdiction of American courts. In general, legal scholars are still debating some core questions, left unresolved by the Kiobel decision, related to the scope of the ATS. In any event, the U.S. proved to be an inadequate forum to provide redress to the families of the ‘Ogoni Nine’.
The new Dutch lawsuit
A claim recently lodged in The Netherlands seeks to, at last, hold Shell accountable for the plight of the ‘Ogoni Nine’. Their widows are represented by Channa Samkalden – from the Amsterdam law firm Prakken D’Oliveira – which is managing the Dutch case with the support of Amnesty International.
An indication of what was about to happen came last October when Esther Kiobel petitioned a New York District Court to request discovery by the U.S. lawyers of the respondent. The documents requested were deemed necessary to seek redress for the violation of the applicants’ husbands “right to life, their right to a family life and their right to personal dignity and integrity”.
The new Writ of Summons refers to the “international jurisdiction of Dutch courts” under the Brussels I Regulation and the Dutch Code of Civil Procedure (CCP). The plaintiffs set out three different grounds for jurisdiction. Art. 4(1) and 63 Brussels I (recast Regulation) are used as a jurisdictional basis on RDS. Jurisdiction on the non-Dutch defendant is instead grounded in art. 7(1) CCP, which provides for the possibility to attract multiple defendants to the same forum, where the claims against them are connected. Alternatively, jurisdiction over SPDC could also be established pursuant to art. 9(1) CCP, providing for the rule of forum necessitatis: i.e. Dutch courts have jurisdiction, provided that the claim is sufficiently connected to the Dutch legal sphere and that it is unacceptable to expect the claimant to submit the case to the judgment of a foreign court. The claimants submit that the Dutch parent companies wholly own SPDC, and that the defendants acted as a single entity when perpetrating the alleged conduct. Moreover, one cannot expect the claimants to file the lawsuit in Nigeria, given the involvement of the State apparatus in the events at issue. This argument is further reinforced by the fact that both Kiobel and Bera have been granted refugee status abroad.
To fully appraise the soundness and the chances of success of these jurisdictional grounds, it is necessary to take a step back and to look at the question through the lens of Private International Law (PIL).
Grounds for jurisdiction in PIL: between the European and the national level
Some scholars had already anticipated that the failure to secure jurisdiction under the ATS in the Kiobel case was likely to result in a rekindled attention for PIL rules in business and human rights cases. As far as jurisdiction is concerned, the European PIL instrument par excellence is the Brussels I Regulation “on the jurisdiction, recognition, and enforcement of judgments in civil and commercial matters” within the EU. In this framework, establishing jurisdiction over the parent company is fairly unproblematic. Art. 2 and 60 of the Regulation (transposed in art. 4 and 63 of the Recast) provide that defendants domiciled in a Member State can in principle be attracted in front of the courts of that Member States. This applies also to companies who are seated/have their central administration/have their principal place of business in that Member State.
However, the situation becomes more complex when foreign subsidiaries, especially if incorporated in States outside the EU, come into play. In the Kiobel case, the Dutch court claiming jurisdiction over SPDC is essential for the success of the case as the Nigerian subsidiary was at the heart of the events leading to the death of the ‘Ogoni Nine’. There are two potential grounds for an EU based court to have jurisdiction over non-EU based subsidiaries: the rule on multiple defendants based on related actions and the principle of forum necessitatis. The latter is not provided for in the Brussels I regime. Hence, it is up to national legislation to include such a ground in their PIL. As far as the former is concerned, art. 6(1) Brussels I (art. 8(1) Recast) prescribe that a foreign defendant might faced court proceedings together with a domestic one when the claims against them “are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments”. The actual scope of application of this paragraph is sometimes hard to grasp. For instance, it is doubtful whether it could apply to non-EU based companies. A negative answer will result in the need to resort to national rules of PIL. Thus, the possibility of Dutch courts having jurisdiction in a case involving a subsidiary such as SPDC will most likely hinge on Dutch rules regarding jurisdiction.
Two valuable precedents
An analysis of two recent cases – one in the UK and one in the Netherlands – can shed some light on the issue. In fact, both of them involved Shell and SPDC as defendants, and also invoked Brussels I as a ground to establish jurisdiction.
In the UK case, more than 40.000 individual claimants brought a class action against Shell over alleged environmental damages linked to oil spillage. On 26th January 2017, the High Court of Justice (Queen’s Bench Division) ruled that the claims should be heard in Nigeria. Although jurisdiction over the conduct of RDS could be established pursuant to art. 4 Brussels I Recast Regulation, the possibility to try SPDC was to be assessed under domestic PIL, and specifically, the CPR Practice Direction 6B. Paragraph 3.1(3) of the CPR Practice Direction 6B provides that a claim against multiple defendants could be served if (a) the issue between the claimant and the first defendant is a real issue, “which it is reasonable for the court to try”, and (b) the other defendant is a “necessary and proper party to the claim”. Thus, the English Court focused on verifying whether the claimant had a cause of action against the “anchor defendant” (i.e. RDS). Examining the evidence, the Court held that RDS had no duty of care over the extraction activities carried out by SPDC, and, hence, there was no legal claim that would tie the issue to UK jurisdiction (§118).
In a previous decision, the Dutch courts came to an opposite conclusion. Similarly, the three joint cases concerned alleged negligence of RDS and SPDC with regard to the environmental damages caused in the Niger delta. On 18th December 2015, the Court of Appeal of The Hague held that Dutch courts have jurisdiction to hear the claim both against the parent company (pursuant to art. 2(1) and 60(1) Brussels I) and SPDC (pursuant to both art. 6(1) Brussels I and art. 7(1) Dutch Code of Civil Procedure (CCP)). Art. 7(1) CCP prescribes that a defendant might fall under the jurisdiction of Dutch courts when jurisdiction is established against another defendant, “provided that the rights of action against the different defendants are connected with each other in such a way that a joint consideration is justified for reasons of efficiency”. Therefore, it resembles art. 6(1) Brussels I, and, moreover, the two norms were interpreted by the Court as linked and mutually reinforcing. As a result, the Court stated that the interest of having the claims against both companies heard together prevails over the allegations that the contentions against SPDC should be heard in Nigeria.
Comparing the two judgements, it appears that the two Courts have tackled the issue from two different angles, which reflect the wording of their domestic PIL. In particular, the Dutch Court deferred the question of whether the claims against the parent company were founded for a later phase of the proceeding, holding that it was too soon to determine whether these claims were bound “to fail from the outset”(§3.7). Moreover, the Court referred to the principle of perpetuatio fori. In other words, jurisdictional questions are solved at the outset of the proceeding. In the event claims against RDS proved unfounded on the merit, jurisdiction over SPDC would still stand.
Therefore, the ruling of The Hague Court of Appeal, and the regime provided in CPP by both art. 7(1) and 9 might prove to be a key element for the success of the new Kiobel lawsuit. Were the Dutch Court to find the claims against Shell and SPDC substantially interwoven (in the meaning of art. 7(1) CCP), arguably the need to hear the allegations against the two companies in the same proceeding would outweigh the reasons for having two separate judgements in the Netherlands and in Nigeria. In the alternative, art. 9 CCP, prescribing the principle of forum necessitatis, could still provide a jurisdictional ground on SPDC.
The new Kiobel case brings to the fore the strategies and opportunities available to victims seeking redress from multinational companies for human rights abuses. The strict interpretation of the ATS by the Supreme Court in the American edition of the Kiobel case has caused a geographical re-location of the complaints towards Europe and, in particular, The Netherlands where Shell is seated. In this regard, the jurisdictional regime stemming from private international law rules becomes crucial.
Notwithstanding the valuable ground provided by the Brussels I regime, the national norms on PIL still play a predominant role, at least with regard to the establishment of jurisdiction over non-EU based subsidiaries. As the UK and Dutch cases show, these rules might be more or less flexible and entail diverse legal reasoning potentially leading to contradictory outcomes, and which will ultimately determine the possibility to have the case heard on the merit.
The 2015 precedent bodes well for the Dutch Court to assert jurisdiction in the new Kiobel case. Albeit this does not mean the Court will side with Kiobel and the other widows on substance. Winning on jurisdiction would be a first step, a key initial success necessary to be properly heard, but for the claimants there would still be a long and difficult road ahead before finding justice.