The Great Debate UK

from The Great Debate:

Suing corporations should be a last resort

On Feb. 28, the U.S. Supreme Court will hear arguments in Kiobel v. Royal Dutch Petroleum. The case is about Shell’s alleged complicity in torture and extrajudicial killings committed by the Nigerian military in the mid-1990s, and is expected to determine whether corporations can be sued in the U.S. for their involvement in human rights abuses abroad.

Corporate lawyers and plaintiffs’ attorneys alike are eagerly awaiting the outcome. If the Supreme Court upholds corporate liability, as federal courts have in the past and the Obama administration is encouraging the High Court to do, other lawsuits will surely follow -- against Apple for labor abuses in its Chinese manufacturing base, for example.

But we should not let this case distract us from the fact that lawsuits should be a last resort for people hurt by business. Suing a company is expensive, complicated, and time-consuming, and it rarely makes victims whole. In 2009, after three years of litigation, Shell settled a related case for $15.5 million -- to be divided among 10 plaintiffs, their lawyers, and a fund for education and other initiatives in the plaintiffs’ communities. Hardly an ideal outcome where lives have been lost.

Similarly, Chevron’s relentless pursuit of legal absolution for environmental destruction in Ecuador means that the communities harmed by toxic waste will never receive remedy of any kind, as long as their advocates, government, and the company are consumed by the court proceedings.

Instead, we should focus on making sure that companies don’t hurt people in the first place -- and when they do, that there are adequate means of redress so that the victims don’t have to end up in protracted legal battles.

The tragic circumstances that led to Kiobel -- poor communities ironically left worse off after the discovery of natural resources in their area -- are hardly limited to Nigeria or Ecuador. The “resource curse” has affected communities around the world.

Extractive companies increasingly recognize that they can no longer block out the problems that their installations cause for the people who live nearby. Companies are hiring community ombudsmen and establishing grievance mechanisms to resolve disputes before they escalate to levels where serious harm is done.

Wiwa v Shell: The day of reckoning

-Ben Amunwa is a campaigner with oil industry watchdog Platform, where he runs Remember Saro-Wiwa, a project that uses art and activism to raise awareness about the impact of the oil in the Niger Delta. The opinions expressed are his own.-

When the news broke of a settlement in the Wiwa v Shell case, a cacophony of responses soon flooded my inbox. Hailed as a victory for human rights by some, others felt disappointed that Shell could throw money in the face of justice. In such a high profile and emotive legal battle, holding oil giant Shell responsible for human rights abuses in Nigeria, including the execution of charismatic activist Ken Saro-Wiwa, hopes were inevitably high.

A settlement was always going to stir some controversy. Activists wanted to see Shell on trial for aiding and abetting the Nigerian military in crackdowns on the Ogoni people in the 1990s. Myself and many others travelled to New York expecting a trial, but came home empty-handed. Yet none of us had spent hours locked in settlement negotiations, nor lived with the burden of a 12-year litigation, not to mention the personal trauma of losing our loved ones to brutal violence. There is a growing consensus that the settlement is a victory in favor of the plaintiffs, and a step forward on the long road to corporate accountability.

Eager to flex its public-relations muscles, Shell claimed they agreed to a settlement for “compassionate” reasons. A statement on Tuesday said:

“Shell today agreed to settle a court case in New York related to allegations in connection with the Nigerian military government’s execution of Ken Saro-Wiwa and others in 1995, making a humanitarian gesture to set up a trust fund to benefit the Ogoni people…Shell has always maintained the allegations were false… we were prepared to go to court to clear our name.”

In spite of Shell’s official denials, all the signs point towards complicity. No multinational company settles out of court for $15.5 million due to “humanitarian” or “compassionate” impulses. According to attorneys, this payout is far higher than similar cases.

The real reason why Shell settled is because the evidence compiled by the plaintiffs, was damning enough to force an out of court settlement. Far from being willing to defend itself before a jury, Shell has spent the last 12 years fighting to stay out of the courtroom, and to keep the evidence out of the public eye. If Shell was innocent of any wrongdoing, why didn’t they tough it out in court?