9.2.2 Claims versus Shell under the ATCA

In November 1996, a claim was filed against Shell by family members of some of the executed Ogoni leaders before the New York District Court, based on the ATCA, the TVPA, the RICO, international law and treaties, Nigerian law, and various state law torts.1

Plaintiffs were: Ken Wiwa, the son of Saro-Wiwa; Owens Wiwa, the brother of Saro-Wiwa; Blessing Kpuinen, the wife of the executed John Kpuinen; and another woman identified as Jane Doe. The first three plaintiffs were, at the time of filing the complaint, respectively, citizen and resident of the UK, Nigerian citizen and residing in Canada, Nigerian citizen and US citizen, and Nigerian citizen.

Defendants were the Royal Dutch Petroleum Company and Shell Transport and Trading Co. plc (collectively: Royal Dutch/Shell) headquartered and incorporated in the Netherlands and the UK respectively, at that time the two parent companies of the Shell group.2 Royal Dutch/Shell wholly owned the Shell Petroleum Company, which in turn wholly owned Shell Nigeria, including SPDC. Defendant Brian Anderson was the Country Chairman of Nigeria for Royal Dutch/Shell and Managing Director of SPDC at that time.

More specifically, the plaintiffs alleged that Royal Dutch/Shell is liable for summary executions, crimes against humanity, torture, cruel, inhuman and degrading treatment, arbitrary arrest and detention, violations of the right to life, liberty and security of person and the right to freedom of peaceful assembly and association, wrongful death, assault and battery, intentional and negligent infliction of emotional distress and conspiracy. The allegations essentially concerned joint responsibility of Royal Dutch/Shell for the execution of the Ogoni leaders. In other words, they alleged complicity related to the human rights violations by the Nigerian military regime, because Royal Dutch/Shell was said to tacitly have endorsed and facilitated the actions taken by the military regime against the Ogoni leaders and activists and failed to exercise its influence to halt the executions.3

The first question to be answered was whether the US court was an appropriate forum. Royal Dutch/Shell filed a motion to dismiss the case on the grounds of forum non conveniens.4In this case, the defendants argued that the claims ought to be brought before an English or Dutch court, where Shell's headquarters were located. The District Court granted the motion. The Court of Appeals however, reversed the decision by ruling that Royal Dutch/Shell was "doing business in the State of New York", considering that Shell had had an investment office in New York for a long time. When assessing whether a forum non conveniens dismissal is appropriate, the Court of Appeal stated that a two-step process is employed: (1) the first step is to determine if an adequate alternative forum exists (e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22 (1981); Gulf Oil Corp. v. Gilbert, 330 U.S. at 506-01). If so, a series of factors must then be balanced involving "the private interests of the parties in maintaining the litigation in the competing fora and any public interests at stake." In this case, the fact that the plaintiffs were at that time US residents was taken into account as well as the American interest in litigating international human rights violations under both the ATCA and the TVPA. Human rights considerations were part of the equation, thus creating an innovative element in

the forum non conveniens test applied by the court.5 In 2001, the US Supreme Court confirmed the Court of Appeals decision.6 The hurdle of forum non conveniens had been successfully overcome by the plaintiffs.7

The second question concerned the subject matter: could a US court decide the claims? In order to give rise to a claim under ACTA, the plaintiffs must allege a violation of an international norm that qualified as "specific, universal, and obligatory" (Doe v. Unocal, 110 F. Supp.2d 1294, 1304 (C.D. Cal. 2000)). In 2002, this question was answered affirmatively: the District Court ruled that when the factual allegations could be proven, the complicity of Royal Dutch/ Shell in violations of international law norms was established. Further, the attribution of the acts of SPDC to its ultimate parent company was considered sufficiently demonstrated.8 The case could proceed to the discovery stage: putting forward evidence to substantiate factual allegations, legal positions and defence.9 At the time of writing this chapter (2008), twelve years after this case commenced, many authors have shed their light over this case and are eagerly awaiting a final sentence. Obviously, not only the legal world is anxious to learn of the outcome, but also the Ogoni People and the industry whose interests are at stake!10 Please see sections 1.9 and 1.4.3 about the settlement that was reached between the parties in 2009.