Basically Shell is holding on to over $2 billion of funds belonging to an ‘adjudicated terrorist’ – Iran – and is denying those funds to the victims of the 9/11 terrorist attack on the World Trade Center.
By John Donovan
SHELL/IRAN – MORE RECENT DEVELOPMENTS
In December 2011, a US judge signed a judgement finding Iran one of the parties liable for the September 11, 2001 attacks.
Extracts
The signed ruling came in a $100 billion lawsuit brought by victims’ families. Judge Daniels signed findings of fact saying the plaintiffs had established that the attacks were caused by the support the defendants provided to al-Qaida. It also said Iran continued to provide material support and resources to al-Qaida by providing a safe haven for al-Qaida leadership and rank-and-file members. During last week’s hearing, September 11 victims’ families sat through a four-hour presentation from lawyers who cited evidence supporting their claims that Iran actively assisted the hijackers of planes that crashed into the World Trade Center towers, the Pentagon and a field in Pennsylvania. Former members of the September 11 Commission and three Iranian defectors also spoke.
A ruling was also made that Iran is an ‘adjudicated terrorist.’
Having obtained these landmark rulings, the victims families, led by courageous lead plaintiff, Fiona Havlish, whose husband, Donald, perished in the attack on the World Trade Centre, were faced with the problem of actually extracting compensation from Iran.
Since Shell owes Iran over $2 billion, the victims launched legal proceedings against Royal Dutch Shell Plc.
Basically Shell is holding on to over $2 billion in funds belonging to an ‘adjudicated terrorist’ – Iran – and is denying those funds to the victims of the 9/11 terrorist attack on the World Trade Center.
I have obtained a copy of a related legal document filed with the United States District Court Southern District of New York on 23 May, 2014.
Extract
I. BACKGROUND
This Court entered a judgment, the validity of which is not challenged by Shell, which found that the Islamic Republic of Iran (“Iran”) and its agents, including the National Iranian Oil Company (“NIOC”), are sponsors of terrorism within the meaning of 28 USC 1605A and are liable under to Petitioners for aiding and supporting the terrorist attacks of September 11, 2001. NIOC is admittedly owed over $2.3 billion by Shell or wholly owned Shell subsidiaries, and Petitioners seek to execute on this debt, in partial satisfaction of this Court’s $6 billion judgment against NIOC.
In response to the petition, Shell could have remained neutral, or at least interpleaded the funds at issue, as Sprint and others have done in cases against Iranian agencies.1 Instead, Shell has opted to attempt to block petitioners from obtaining the funds that NIOC is undisputedly owed and that Shell undisputedly controls.
Even more surprisingly, Shell argues for dismissal, before any discovery, on the basis of arguments that read restrictions into unambiguous statutory language, and that rely on the unsupported “understanding” of a non-lawyer. Shell also claims this Court lacks personal jurisdiction, even though it is by revenue the world’s largest company, with 22,000 employees in the U.S., hundreds of billions of dollars of business in New York and throughout the United States, and multi-billion dollar refineries, pipelines, terminals, wells, plants, and other major facilities from New York to the Gulf of Mexico to Alaska.
Shell leans heavily on “sovereign immunity” and “customary international law,” but it completely ignores that NIOC is an adjudged sponsor of terrorism, with responsibility for the worst terrorist attack on record for both persons (nearly 3,000 deaths) and property ($40 billion in damages). Terrorists, including terrorist states and their instrumentalities, have no sovereign immunity and no rights under customary international law. Like the torturer, pirate, and slave trader, the terrorist is “hostis humani generis, an enemy of all mankind.” Filártiga v. Peña-Irala, 630 F.2d 876, 890 (2d Cir. 1980).2
Accordingly, Shell’s motion should be denied. This Court has subject matter jurisdiction to execute on NIOC’s assets, even on assets located outside the U.S. In any event, Petitioners are entitled to discovery to determine where the assets are located. And this Court has general personal jurisdiction over Shell, which has affiliations with New York and the United States that are so continuous and systematic as to render it “essentially at home” in New York and/or the United States, and which has consented to be sued here. Finally, “comity” does not oblige this Court to refrain from ordering the turnover of the NIOC assets, and U.S. statutes mandate such an order.
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By John Donovan
Copy of a self-explanatory email sent this morning to Michiel Brandjes, Company Secretary & General Counsel Corporate, Royal Dutch Shell Plc.
EMAIL TO BRANDJES
From: John Donovan
Subject: Royal Dutch Shell BP Merger
Date: 29 May 2014 09:16:48 BST
To: michiel.brandjes@shell.com
Dear Mr Brandjes
I have received from multiple sources reports of negotiations/discussions involving Shell and BP.
I intend to publish the draft article below authored by one extremely well informed source. That fact is self-evident.
If you wish to issue an absolute denial that any such negotiations/discussions are current/recent, then please let me know by 4pm today.
As usual, any comment from Shell would be published in its entirety, unedited. The headline would also be modified if needed.
If there is no response, then our readers and the markets will be able to draw the appropriate conclusion.
Best Regards
John Donovan
EMAIL ENDS
Shell has sometimes responded to such invitations from us, one one occasion asking us not to publish a particular article. We complied with that request. This time there has been no response.
THE ARTICLE SENT TO SHELL
Shell BP Mega Merger: Fact, or extremely well informed conjecture?
…its a typical dark, smoke-filled room where two teams of senior people – top echelon, Board level types, not the operational guys who run organizations these days – are discussing a thorny problem. The structure of the industry is changing: the mega-mergers of the 1990s, which brought BP to scale, saw ExxonMobil become the world’s biggest company and made Chevron and Texaco join hands are almost forgotten and a new world order has emerged. The state oil companies from the resurgent Russian and nascent Chinese super-powers now sit at the head of the negotiating table and the rules of the game are changing. Some of the world’s oldest and largest IOCs are no longer big enough to compete and its time, according to the bankers and consultants, for a ‘game changer’. Unless there a bold move is made, the under-funded pension pots and comfy Board appointments – not to mention more than one Royal family investment portfolio – are all at considerable risk. People are worried.
The consultants speak first. They are a well-known firm, albeit one that is still reeling from seeing a former head partner imprisoned for insider trading and yet his successor is now one of the worried Board members of one of these two so-called ‘players’. They had a team of fifty consultants in their London offices supporting one company and cracked re-entry to the other one with the Enterprise acquisition and have since in effect taken over there. The conversation might go something like this:
“We think this new organisation, where the two firms merge, needs to be designed from the top-down. It’s the only way: the two companies are actually really similar in structure and the slow drip feed of sales of downstream portfolios out of both companies has drastically reduced the extent of downstream competition. We know the merger wasn’t possible ten or even five years ago… but it’s a different world now. Firstly, company A is a sitting duck in the US now after events over the last few years: it’ll never recover its position and credibility and ExxonMobil and Chevron will make sure that it stays that way. Company B on the other hand is still a big player in the US: indeed many Americans think it is a US company and it doesn’t work overly hard to dispel that notion. So the merger makes sense from the US perspective and let’s face it, while the competition will squeak it’s not a US deal.
The issue then is the European regulator and that will be the harder one to solve. But look what we’ve done already in the last few years: we’ve pulled out of several entire markets…sometime by accident at the same time (like Greece). Others, later on, were in a more carefully staged manner. Sure, Germany presents a problem but we’ll crack that and we were never the players in France anyway. The UK government will bleat but actually this is not about two UK companies any more: these are ‘European’ firms and anyway, the UK government knows that the size of these companies means they make up the majority of most pension portfolios of most investment companies. They daren’t rock the boat and they will realise that in the end, competition means that a decent sized European operation is needed to take on the Russians… don’t forget that the UK sold off almost all its oil reserves on the cheap in the ‘80s to save the Americans and they don’t want that in the open.
So who do we have and who do we need? Well, you can’t have a ‘foreign’ national at the top of this thing, nor one who is a Finance guy and not from the business: equally having an American CEO might be an issue but it’d be a great way to sell this firm as global and not European and not face that eternal squabbling between the Brits and the Dutch over who is boss. Sure, the Dutch would need to have someone on the top table but they screwed up in the ‘90s with their talent pipeline and the cupboard is pretty much bare. You’d have to find someone also who isn’t tainted by the Reserves scandal… sure, that was ten years ago but it isn’t forgotten and some of those who were left were clearly not guilty. So you need a Dutch guy to act as a company number two/deputy. This guy would run the integration and be groomed for the top spot, at least theoretically so he’d have to be young enough to stick around and credible enough that he’d run one of the two firms originally.
So we’ve an American, a Dutch guy – have to now find some Brits to plug in here. That’s easy: the next role is the CFO and that falls automatically. Again, you’d need someone not associated with the Reserves and yet who has both the age profile and seniority to do this role yet wouldn’t walk whilst we moved the chairs for the top spot and he got excluded. Job done. Next, the operational roles. We can argue about the viability of downstream for ever but that monkey stays with us for years simply because of the scale of the revenues and the trading profits we make. So, we have to have it: and that means we take the guy from Company A and let the guy from Company B go, he’s not a player. The same in reverse for the Upstream: Company A is a dead duck in exploration these days and while Company B is no great shakes either, its reputation is still intact. We would split this business up three ways – International, US and Gas and that structure already is in place. Almost too easy.
There are then the back office roles. HR, IT, etc – and especially Legal: these need warm bodies too. That rolls nicely. Legal is the crucial one and that goes straight to Company A but we’d have to get the Company B guy out of here quickly. The fixer who did the company B integration isn’t going anywhere and could do the merger leg-work for the Dutch deputy. The H&S guy would come from Company A and so would the IT guy: the Company B guy is US and hasn’t moved on after nine years so would likely hang around and drop into the infrastructure combination with the right incentives.
We can’t have too big a board though so why don’t we combine these functions with Strategy and make it the ‘growth’ position for the next-but-one CEO: it also allows us some overspill in case of an accident or a walk at the top level that we didn’t foresee. Accidents do happen after all. We’d have to give the HR role to Company B to balance and probably have to be a Dutchman: they have only got at best two top seats in this whole team and one of these is just a courtesy one. They’d go ape, so we’d throw them the bone of the main HR role and now they have three main runners. Sorted.
Wait! We’ve missed a trick. It’s an all-male Board… makes sense in the industry but not going to go down well with the voters. How about we throw a token female into the mix: there isn’t a real space left at the table here but we’ve got to do something and let’s not forget that one of these two firms has made a great play out of going green… the other has upset people badly with what it’s done, or rather failed to do, in the Arctic. Never mind that these alternative energy businesses are just a window-dressing: we have to have them and by a stroke of luck, we have a lady who takes this role.
So to summarise then… a ten person top team comprising the operating functions reporting to an executive committee of five people. The initial split would be three US, four UK and two Dutch plus one extra to show there is no barrier/bar and its up to the Dutch to come up with the goods in terms of people but in reality they would now have 3/10th of the joint company and so are less able to throw their weight about – plus they get the pick of the functional roles and can start to rebuild.
How would this work? We’d need to push the Company B guy early and let his replacement make a name for himself as a ‘mover and shaker’. Company A still needs time to rebuild its reputation and finish the litigation. We can’t make this happen now with that monkey on our backs but if we start now we can lay the ground work. We get the people we want in position in their current companies and make sure that those people who aren’t needed are walked out and backfilled with placeholders.
- Bob Dudley…………..US…………BP……….CEO
- Ben van Beurden…..NL…………RDS…….Deputy CEO/Integration
- Simon Henry………..UK…………RDS…….CFO
- Rupert Bondy……….UK…………BP……….Legal
- Bernard Looney…….Ireland…..BP……….Strategy and Functions
- Iain Conn……………..UK…………BP……….Downstream
- Andy Brown………….UK…………RDS……..Upstream – International
- Marvin Odum……….US………….RDS……..Upstream – Americas
- Maarten Wetselaar..NL………… RDS……..Gas
- Katrina Landis………US………….BP………..Renewables
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