A United States Federal High Court hearing the environmental and human rights violation case brought by the Ogale Community of Rivers State against the Royal Dutch Shell and its Nigeria counterpart, Shell Petroleum Development Company Limited, has ordered a stay of the entire matter pending the decision of the US Supreme Court in Kiobel v. Royal Dutch Shell Petroleum Company.
According to the court records, the order was made following an agreement of the parties to the suit that the issue of the court’s jurisdiction should be stayed pending the Supreme Court’s decision in the Kiobel v. Royal Dutch Shell Petroleum Company.
Thus was despite the fact that the parties disagreed sharply on whether the court should give the same treatment to the issue of personal jurisdiction.
The judge, in his order, stated: “Currently pending before the court are defendants’ motion to dismiss and plaintiffs’ motion to amend complaint.
“In their pleadings, the parties have alerted the court that the issue of subject matter jurisdiction over plaintiffs’ Alien Tort Statute claim will be decided by the United States Supreme Court in the case of Kiobel v. Royal Dutch Shell Petroleum Company.
“Oral argument was heard in that case on February 28, 2012.
“The parties agree that the issue of this court’s subject matter jurisdiction should be stayed pending the Supreme Court’s decision in Kiobel.”
On the area of disagreement between the parties, the court said: “Defendants would have the court determine the issue of personal jurisdiction at this time, while plaintiffs contend that they require discovery of the organisational structure of the defendants in order to respond to defendants’ motion to dismiss on personal jurisdiction grounds.”
To this effect, the judge ordered that the entire matter be “stayed pending the decision of the Supreme Court in Kiobel v. Royal Dutch Shell Petroleum Company.”
However, in obvious reference to the plaintiffs’ argument that they need to conduct jurisdictional discovery in order to respond to Shells’ motion to dismiss the suit based on personal jurisdiction grounds, the court has ordered the parties to engage in written discovery only, “limited to the issue of personal jurisdiction, even while the stay is in place”.
Recall that the Royal Dutch Shell and its Nigerian subsidiary, Shell Petroleum Development Company Limited, claiming judicial economy, had urged the court to stay action in the ongoing Alien Tort Statute action filed by the Nsisioken Ogale community of Rivers State pending the Supreme Court’s decision in Kiobel v royal Dutch Shell, a related ATS case, which was argued before the US apex Court on February, 28, 2012.
Shell made this request in response to plaintiffs’ Motion for Leave to Amend their complaint to include more causes of action, including racial discrimination in violation of international law, marine pollution/Ocean Pollution in Violation of United Nations Convention on the Law of the Seas (UNCLOS), inhuman and degrading treatment, consistent pattern of gross violations of human rights, crime against humanity, all in violation of the United States’ century old Alien Tort Statute.
Shell also urged the court to hear its motion on personal jurisdiction while staying further consideration of the Alien Tort Statute claims, which is a subject matter of Supreme Court review in Kiobel v Shell.
The plaintiffs in their reply to Shell’s demand did not contest the issue of stay but posited that they would only agree to such a stay on the condition that the stay is on the entire case or if the court grants Shell’s request for partial hearing, that they be allowed to conduct jurisdictional discovery on Shell before responding to Shell’s motion to dismiss on personal jurisdiction grounds.
However, in an interview with Mr. Kayode Oladele, human rights lawyer and one of the attorneys representing the Ogale community, he faulted the motive behind Shell’s request for stay, expressing optimism about the outcome of the Supreme Court’s decision in Kiobel v Shell.
According to Oladele: “The sole question before the US Supreme Court and whose outcome the whole world is anxiously awaiting is whether a corporation can be held liable in a federal common law action based on the Alien Tort Statute.
“While Shell is claiming judicial economy for its reason for asking for a stay pending Kiobel’s decision, by far, the major motivation for Shell in asking for stay is shell’s mistaken belief that the Supreme Court will affirm the decision of the Third Circuit Court of Appeals and its unsupported position that corporations are immune from laws that prohibit complicity in human rights violations, thereby excuse Shell from culpability in the egregious crimes against humanity.”
Oladele further maintained that “the fact of the matter is that corporations can violate international law norms just as any natural person can and it is doubtful whether there is any international law norm that distinguishes between natural persons and juridical persons such as Shell.
“If a corporation has rights to enter upon anywhere in the world and exploit oil and other mineral resources, then, without doubt, such a corporation has responsibilities too, including being haled into courts of justice for committing crimes against humanity and for violating the human rights of the communities where it operates its profitable venture.
“Unfortunately, Shell wants to have it both ways: reap all the benefits but when it comes to responsibilities for abuse, claim corporate immunity.
“That is the absurdity the US Supreme Court has just been called upon to resolve.”
Another human rights lawyer and former President of the West African Bar Association who is also litigating the domestic aspects of the case on behalf of the plaintiffs in Nigeria, Femi Falana, also disagreed with Shell’s position on corporate liability for human rights violation.
Falana, who also disagreed with the decision of the Third Circuit Court of Appeals, argued that it is a common principle of law that both natural persons and corporations can violate international law norms, adding that his position and that of the plaintiffs in Kiobel is supported by the Unites States Government, which also submitted an amicus brief to the US Supreme Court in which the government requested for the reversal of the Third Circuit Court of Appeals decision on the ground that the United States has an interest in the proper application of the Alien Tort Statute.
According to the government in its amicus brief, “such actions can have implications for the nation’s foreign and commercial relations and for the enforcement of international law.”