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US Supreme Court Orders Re-argument In Nigerians’ Lawsuit Against Royal Dutch Shell

The United States Supreme Court has postponed its decision in Kiobel V Royal Dutch Shell. Legal experts believe the case is likely to resolve the vexed issue of corporate liability for human rights violation under the lien tort claims statute. The case was argued before the US Supreme Court on February 28, 2012, but the court decided to shelve its decision until the next term.

The United States Supreme Court has postponed its decision in Kiobel V Royal Dutch Shell. Legal experts believe the case is likely to resolve the vexed issue of corporate liability for human rights violation under the lien tort claims statute. The case was argued before the US Supreme Court on February 28, 2012, but the court decided to shelve its decision until the next term.

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The court was earlier expected to give a ruling by June of this year, but indications point to a decision now during the court’s next term. Instead of ruling this term, the Supreme Court decided to restore the case to its calendar for re-argument. The justices have ordered the parties to submit additional briefings on "whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." 

According to the Supreme Court, the supplemental brief of the petitioner (Kiobel) is due on Thursday, May 3, 2012 while that of the respondents (Shell) is due on or before Monday, June 4, 2012. The reply brief is due on or before Friday, June 29, 2012. 

The case, Kiobel v Royal Dutch Petroleum, was brought by a group of Nigerians claiming that they or their relatives were victims of torture, summary execution and other crimes against humanity perpetrated by the Nigerian government with the active collaboration of the Royal Dutch Shell. The suit was brought under the alien tort statute, a 1789 law that allows aliens to sue in US courts for torts in violation of international law. However, the US Court of Appeals for the Second Circuit, New York, ruled last year that the statute applies only to individuals but not to corporations. The Court of Appeals stated that corporations cannot be held liable for human rights violation.

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The Supreme Court now has to decide whether it agrees with the Second Circuit’s decision, or whether to side with four other circuits that have ruled that corporations can be held liable for human rights violation the same way a natural person can under the ATS.

Meanwhile, in a related case that was recently stayed by Judge George Caram Steel of the US District Court in Michigan, the Royal Dutch Shell is urging the court to reopen the case for the limited purpose of determining personal jurisdiction while waiting for the apex court’s decision on the issue of subject matter jurisdiction.  “The Supreme Court’s decision to order new briefing in Kiobel will result in greater delay than first anticipated by the parties and this Court. Accordingly, the Court may proceed on the issue of personal jurisdiction rather than leave this case in abeyance until 2013,” Shell argued in its motion.
 
Last October, members of the Ogale community of Eleme Local Government Area of Rivers State filed a pollution and human rights case against the Anglo-Dutch Company. The lawsuit came in the wake of a UN report detailing massive environmental pollution caused by Shell in the Niger Delta. But Shell has urged the court to prevent the Ogale community from conducting a jurisdictional discovery to determine whether or not the District Court has personal jurisdiction over Shell. The company has argued that “unlike death and taxes, jurisdictional discovery is not inevitable.”
 
The Ogale plaintiffs have not filed their response to Shell’s motion as at the time of this report. However, Kayode Oladele, one of the lawyers for the Ogale community, told SaharaReporters in an interview that the plaintiffs were fully aware of the new developments in the Kiobel. Mr. Oladele stated that the Supreme Court’s ultimate ruling in the Kiobel case was likely to have a significant impact on the Ogale case, particularly on the question of subject matter jurisdiction. He affirmed that the Ogale community’s case also rested on the Alien Tort Claims Act. “We had thought that with the Supreme Court’s decision coming this term, the dust would be settled once and for all,” he said. He added: “Unfortunately, this is not to be as the Supreme Court has called for re-argument and re-briefing.” 

Mr. Oladele, however, faulted Shell’s request that the court hear its motion to dismiss on personal jurisdiction grounds. He accused Shell of pretending as if it was not aware of the pending motion by the complainants to amend their complaint. According to the plaintiff’s attorney, “The judge also stayed our motion for leave to amend our complaint while ordering discovery which we are currently working on. Even if the court decides to re-open the case today, it would have to deal with the pending motions first and I think it is not up to Shell to dictate to the judge how the judge should conduct his docket. In any event, we shall file our response this week.”

Mr. Oladele insisted that the order of jurisdictional discovery by the judge was the most appropriate in the circumstance. He said the plaintiffs are total strangers to Shell and should not be required to respond to the issue of personal jurisdiction with speculative affidavits without the benefits of full discovery. 
 

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