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Amid severe repression, nine members of the movement, including Dr Barinem Kiobel, were arrested, charged with specious crimes, tortured and summarily hanged. Dr Kiobel’s widow Esther and 11 other plaintiffs, all either victims of torture or relatives of victims residing in the US brought a class action suit in the US District Court.

In its defence, Shell argued that “the law of nations” does not recognise corporate liability for human rights abuses and that the ATS does not apply extraterritorially. Legal observers expect a decision in the Kiobel case at any time.

In justifying its position against the extraterritorial application of US laws, Shell underscored the “adverse consequences to US trade and foreign policy of a liberal expansion of private causes of action against corporations under international law”. It also posited that the costs associated with potential liability “may lead corporations to reduce their operations in the less-developed countries from which these suits tend to arise, to the detriment of citizens of those countries who benefit from foreign investment”.

The Bowoto case is the legal reaction to Chevron’s role in a 1998 protest by Nigerian community activists in the Niger Delta. The unarmed demonstrators boarded an oil platform and adjacent barge, property of subsidiary Chevron Nigeria Ltd, in protest over the environmental and economic damage caused by oil production in the region. The activists were attacked on 28 May by Nigerian authorities ferried to the floating protest by the oil corporation. Two men were killed and several more protestors injured. Three others claim detention and torture.

After nearly 10 years of pre-trial motions wherein many claims were dropped by a pre-trial judge, the case finally debuted in trial in October 2008 and a decision was handed down on 1 December the same year. The nine-bench jury decided in favour of Chevron, clearing the corporation of any liability under the various claims. It was a defendant’s victory, but civil society groups and legal experts still label the case a milestone in advancing corporate accountability.

The Bowoto case is the first time the multinational magnate Chevron USA Inc. has been successfully taken to a US court for the actions of an overseas subsidiary. ‘Chevron has a very intricate structure, used in part to try and shield itself from liability,’ Simons said. The case has effectively scrapped this corporate strategy.

Government has been told to quickly address huge gaps in the legal framework needed to make the most of the billions in government revenue Ghana will receive from oil as commercial production of the commodity has already began.

there is still no oil revenue management law in place and no independent regulator established for the sector.”

Despite overwhelming public support for the provision baring oil-backed loans, Parliament last week voted to remove the bar and allow for oil-backed loans. Following on that, Ghana has signed the STX housing agreement, which many believe uses oil as collateral.

In the latest showdown between western oil companies and Venezuela’s populist president, Exxon Mobil is widely seen as the loser, after the Paris-based International Chamber of Commerce (ICC) ruled that the world’s biggest oil company would not be entitled to most of the damages it demanded after its fields were nationalised.

Despite this recent victory, PDVSA is facing some trouble. Under Chavez, the energy giant has undertaken ambitious social spending, running subsidised food distribution programmes and international aid projects as if it were a state unto itself. Critics say oil companies should not be delivering government services. And the money used for "Bolivarian" projects means the corporation has less to invest in developing new reserves; production has dropped from about 3.3m barrels per day in 1998 to about 2.25m in 2011, The Economist reported.

Like many of its South American neighbours, Venezuela has drastically reduced poverty in the past decade; the Bolivarian Republic’s poverty rate fell from 48.6 per cent in 2002 to 27.8 per cent in 2010, according to the UN Commission for Latin America's 2011 report. Inequality also declined sharply. This progress is linked to tough negotiations with foreign oil companies, so the state can have more resources to invest in local communities, Chavez’s supporters contend.

Malabu then sued the government. After much legal wrangling, they reached a deal in 2006 that reinstated the firm as the block’s owner. This caught Shell unawares, even though it had conducted extensive due diligence and had a keen understanding of the Nigerian operating climate thanks to its long and often bumpy history in the country. It responded by launching various legal actions, including taking the government to the World Bank’s International Centre for the Settlement of Investment Disputes.

Tom Mayne of Global Witness, an NGO, has followed the case closely; he believes things were structured this way so that Shell and ENI could obscure their deal with Malabu by inserting a layer between them. Mr Agaev, Malabu’s former fixer, lends weight to this interpretation. It was, he says, structured to be a “safe-sex transaction”, with the government acting as a “condom” between the buyers and seller.

Shell and ENI reject the suggestion that their joint purchase was a thinly disguised transaction with a dodgy brass-plate company. Shell says it made payments to the Nigerian government only and that it has acted at all times in accordance with Nigerian law. It previously said it had “not acted in any way that is outside normal global industry practice”. ENI says its payments to the government “were made in a transparent manner through an escrow arrangement with a major international bank”. That bank was JPMorgan Chase. A Lebanese bank had earlier declined to handle the payments, it emerged in court.

the Jubilee Ghana MV 21 BV – a special purpose company[5] comprised of energy corporations – is incorporated in the Netherlands, one of the world’s leading tax havens that provides specific loopholes for corporate activities. The consortium owns the Kwame Nkrumah MV 21 – the Floating Production Storage and Offloading (FPSO) facility that will be used to exploit Ghana’s offshore oil during the first phase of development. Commenting on the Jubilee Ghana special purpose vehicle (SPV), Elmer explains that the intent is manifold: Protecting secrecy and providing legal, tax and regulatory relaxation. ‘In this case,’ he says, ‘there is a strong suspicion that the SPV [will] charge certain services to the company, therefore reducing the profit and the taxable profit. Another option is that certain currency or derivative deals with the company [will be] made with the same effect that the taxable profit is reduced in Ghana.’ The use of the Netherland’s opaque legal and financial vehicles are likely to facilitate revenue leakage, diminishing Ghana’s projected oil revenue, estimated to inject US$800 million into the economy from 2011 and 2029 (beginning with US$20 per person in 2011 before increasing to US$75 per person by 2017, if revenues are directly remitted to citizens).

Ironically, though corporate mispricing accounts for 60 per cent of illicit flight from resource-rich developing nations, specifically those in oil and-mineral rich West Africa, Ghana vies to become the Netherlands of Africa. ‘Under the IFSC, Barclays Bank has been given the license to operate the first Offshore Bank in the sub region.’[10] Cumulatively, US$13 trillion in private wealth is stashed by tax evaders and avoiders in secrecy jurisdictions. If taxed at a moderate 7.5 per cent rate of return, these funds would yield US$865 billion dollars annually.

"The Ghanaian government must establish a legal framework that ensures transparent publication of oil payments received, open and competitive contract bidding and contract disclosure, and active monitoring and participation by civil society," Oxfam America urged.

Richard Hato-Kuevor, Oxfam America's Extractive Industries Advocacy Officer in Accra, says "The Ghanaian Parliament is currently debating an oil revenue bill, and important provisions - such as a prohibition against using oil revenue as collateral for loans - have already been stripped out of the bill. A Petroleum Exploration and Production Bill, which had numerous weaknesses, has been shelved. Celebrations of first oil are clouded by the fact that the government has yet to establish an independent regulator since the Jubilee discovery was announced in 2007."

Despite overwhelming public support for the provision baring oil-backed loans, Parliament last week voted to remove the bar and allow for oil-backed loans. Following on that, Ghana has signed the STX housing agreement, which many believe uses oil as collateral.

Shell obtained permission to occupy (PTO) during the apartheid era, when black people were not permitted to obtain title deeds to land. A PTO holder once paid a token rent to the government; now it pays it to the Ingonyama Trust Board, which administers about 2.8m hectares of land in KwaZulu-Natal. The board says the agreement legally cannot be changed, despite the stations' profitability.

Whether all this oil will benefit the average citizen depends largely on whether extraction deals are handled in an open, transparent manner. A comparison between Brazil and Nigeria is instructive. The South American country provides monthly updates on oil production on a state website. Brazil became the seventh-largest economy in the world with the help of oil output, with 2011 per capita income of $12,594, according to World Bank statistics. In Nigeria, five decades of oil output have been mired in secrecy and conflict. Although the country's oil exports are comparable to those of Brazil, its per capita income is just $1,452.

While Uganda's 2005 Access to Information Act theoretically covers documents between the government and private companies, oil contracts typically have special provisions whereby both parties must consent before information is given to a third party, according to Gilbert Sendugwa, coordinator of the Africa Freedom of Information Centre in Uganda. The secrecy clauses prevent even parliament from getting key information, according to Dickens Kamugisha, chief executive of the Africa Institute for Energy Governance, a Kampala-based think tank that advocates for transparent energy policies.

Since few Ugandan authorities comply with requests under the access law, few journalists bother to use it. Sendugwa noted that all government ministers are required to report how they implement the information act. "We decided to test the law and sent an information request to parliament in November 2010 asking for the ministers' reports on their implementation of the Access to Information Act," he said. "To this date, none have complied."

Human rights abusers may be rejoicing today, but this is a major setback for their victims, who often look to the United States for justice when all else fails.  Now what will they do?”

Lawyers at EarthRights International, a Washington-based human rights law nonprofit, say they suspect that a new legal submission  - which was signed only by the U.S. Justice Department - reflects tensions inside the government on how to deal with multinational corporations do business in the U.S. Significantly, neither the State nor the Commerce Department signed on to the brief, despite their key roles in the case.

Filartiga v. Peña-Irala set a precedent for U.S. federal courts to punish non-U.S. citizens for acts committed outside the U.S. that violate international law or treaties to which the U.S. is a party. ATCA has brought almost 100 cases of international (often state-sanctioned) torture, rape and murder to U.S. federal courts to date.

No plaintiff against a corporation has won on ATCA grounds, although some have settled or plea bargained.

In February 2011, Donziger and his clients won the judgment after an eight-year trial in Ecuador marred by Chevron’s attempts to intimidate judges, offer bribes to Ecuador's government, fabricate scientific evidence, and sabotage the proceedings by filing dozens of frivolous motions and drowning the court in paper.  See here.

Chevron's legal team at Gibson Dunn openly markets a “template” to corporate defendants like Chevron facing large liabilities for environmental and human rights abuses.  The template, which the firm calls a “rescue operation” for clients in trouble, assumes that the wholesale intimidation of lawyers will allow clients to win via subterfuge what they can’t win on the merits. The Gibson Dunn “rescue” team – led by New York attorney Randy Mastro, Ted Boutrous, Andrea Neumann, Scott Edelman, and William Thomson – has used over 60 lawyers and billed Chevron hundreds of millions of dollars.  All their hard work has brought a fair amount of disrepute to their law firm as Chevron has suffered multiple courtroom setbacks around the world, dramatically increasing its liability and creating a shareholder rebellion against CEO Watson.  See here.

The Donziger suit explains that once Chevron realized it would lose the Ecuador trial based on the scientific evidence, the company turned to Gibson Dunn to try to render the Amazonian communities defenseless.

Additionally, I'm confused about why you would criticize the Solicitor General for "tak[ing[ a 19th-Century view of international law" when that is a temporally closer (and thus, presumably more accurate) view of a law enacted in the eighteenth century.  I agree with you that this "completely ignores the entire post-World-War-II body of international human rights law," but it is rather obvious that the First Congress could not have intended to address that legal development because those events would not occur for another 150 years! 

oday, the government submitted its brief (below) - and it's on the wrong side. I have rarely been so disappointed in my government.

The government's position takes a 19th-Century view of international law, basically arguing that governments don't have any business meddling in what other nations do to their own citizens. That's ridiculous, and it completely ignores the entire post-World-War-II body of international human rights law. It's also at odds with US foreign policy, which frequently criticizes other nations - and even authorizes hostile action - based on their treatment of their own citizens.

In a stunning and dramatic legal ruling that echoed from the serene court chambers in the Netherlands to the heart of rural Niger Delta in Nigeria, the District Court of The Hague dismissed all but one of the lawsuits brought against Royal Dutch Shell, an Anglo-Dutch oil and gas company, by a group of farmers seeking compensation for the environmental damage caused by the company.

Without diminishing the severity of the Gulf spill, several observers have pointed out the asymmetrical political reactions to oil disasters in the US and in other parts of the world.[6] Nnimo Bassey, Nigerian head of Friends of the Earth International, explains the sense of frustration: ‘We see frantic efforts being made to stop the spill in the US, but in Nigeria, oil companies largely ignore their spills, cover them up and destroy people's livelihood and environments…This has gone on for 50 years in Nigeria. People depend completely on the environment for their drinking water and farming and fishing. They are amazed that the president of the US can be making speeches daily, because in Nigeria people there would not hear a whimper.’[7]

Presumably, companies are not only put off by the prospect of increased red tape in the US, but also attracted – as they have been for decades – by the limited capacity of African States to regulate extractive activities. To attract foreign investment, most countries in sub-Saharan Africa also enter into generous production-sharing agreements that allow foreign oil companies to turn a relatively small upfront investment in exploration into billions in downstream profits.[11]

Even after the Deepwater Horizon explosion, the company has moved full-steam ahead with plans to sell off US$30 billion in onshore and shallow-water production assets in order to aggressively pursue deepwater drilling in West Africa, Angola, Egypt and, yes, Louisiana.[17]

Minister of Petroleum Resources Diezani Alinson-Madueke who also addressed the forum, said that by enacting the law and establishing a formidable Nigerian Content Development and Monitoring Board (NCDMB), which would help to implement the provision of NOGICD Act, the Federal Government had taken the lead with the provision of the enabling environment and would continue making the improvements required.She said that with the new drive, there would be “transformation of ownership profile of marine assets supporting industry activities from a current ratio of 20 Nigerian-owned vessels: 280 Foreign-owned vessels to a more equitable ratio of 180 Nigerian:120 (Foreign).”She noted that the Nigerian content would not only integrate indigenes and businesses residing in the oil producing areas into the mainstream of industry economic activity, but it would also capture of over 70 per cent of banking services, insurance risk placements, and Legal services supporting industry activities and transactions.

The case stems from oil pollution in the Ecuadorean rain forest, but Chevron does not operate there and has no significant assets in the country. It was Texaco, which Chevron acquired in a merger in 2001, that was accused of widespread environmental damage before pulling out of Ecuador in the early 1990s.

Chevron has much larger operations elsewhere in Latin America, and the plaintiffs’ strategy of pursuing the company across the region could open a contentious new phase in the case — one that would test Ecuador’s political ties with its neighbors and involve some of Washington’s most prominent lobbyists and lawyers.

Advisers to the plaintiffs said Brazil, Argentina and Venezuela would be obvious candidates to pursue Chevron assets, but they acknowledged it would not be easy. Venezuela, for instance, is a close Ecuadorean ally and its president, Hugo Chávez, is a frequent critic of the United States. But Chevron has extensive operations in Venezuela and enjoys warmer ties with Mr. Chávez’s government than just about any other American company.

Jarch is chaired by Philippe Heilberg, who during the 1990s worked as a Wall Street banker in the commodities division of American International Group, a giant American financial company that nearly collapsed in 2008.

On the same BBC program, Steve Wiggins, a Research Fellow at the think-tank the Overseas Development Institute (ODI) said the deal raised concerns over land rights. “The concerns are very clearly first and foremost alienation of the land rights of people who are already there. And particularly some of the marginal and poor people who may not have legal title to their land and these people are obviously vulnerable to losing the means of their livelihoods.”