THE BHOPAL GAS LEAK DISASTER LITIGATION: AN OVERVIEW Bharat Desai* The Bhopal gas leak disaster has left a deep scar on the human psyche, in terms of the catastrophic proportions and the callousness of the safety measures shown in a plant controlled by a multinational company in a developing country. The escape of a highly toxic methylisocyanate (MIC) from the Union Carbide Corporation's (UCC) pesticide plant at Bhopal in the early hours of 3 December 1984 brought havoc to the people of Bhopa1, resulting in the death of more than 3,000 people and leaving more than 200,000 people injured-many seriously and some permanently. There was confusion about the treatment warranted by exposure to MIC, compounded by the Union Carbide's insistence that the gas was not lethal! However, the immediate consequences of the gas leakage were very clear, and its long-term effect to human beings as well as to the eco-system could prove to be quite serious. The Bhopal disaster, regarded as the world's worst industrial accident, led to one of the biggest litigations for damages. This litigation faced questions of jurisdiction and passed through many tortuous twists and turns before ending up as a damp squib-in a sad, much maligned out-of-court settlement. This article traces this litigation in and out of India, and is designed as informative rather than analytical or evaluative. As soon as the news spread about the escape of deadly MIC from the plant of the Indian subsidiary of Union Carbide Corporation of USA, several American personal injury lawyers descended upon Bhopal to take up class • Assistant Professor in the International Legal Studies Division of the School of International Studies, Iawaharlal Nehru University, New Delhi - 110067, India. Asian Yearbook of International Law, Volume 3 (Ko Swan Sik et al., eds.; 0-7923-2708-X; © 1994 Kluwer Academic Publishers; printed in Great Britain), pp. 163-179. 163 Bharat Desai - 9789004400627 Downloaded from Brill.com10/11/2021 05:08:59AM via free access 164 ASIAN YEARBOOK OF INTERNATIONAL LAW action for compensation against UCC. Some of these lawyers-dubbed as ambulance-chasers-filed suits for astronomical sums in the United States courts on behalf of some of the gas victims. 1 However, the Union of India, initially shaken by the tragedy, rose to action and tried to take over control of the whole litigation process against Union Carbide. Accordingly, a special statute entitled the Bhopal Gas Leak Disaster (processing of Claims) Act,2 replacing an earlier Ordinance to that effect, was enacted by the Parliament. The Act, which received the assent of the President on 29 March 1985, sought to confer certain powers on the Union of India, as parens patriae, to secure that claims arising out of or connected with the Bhopal gas leak disaster were dealt with speedily, effectively, equitably and to the best advantage of the victims. Following this special enactment, the Union of India assumed the exclusive right to represent and act on behalf of every person (whether within or outside India) who made or was entitled to make a claim concerning the gas disaster.3 By virtue of the authority conferred by this Act of Parliament, the Union of India faced a crucial choice as regards filing of a case against the parent company, UCC, or its subsidiary Union Carbide India Ltd (UCIL), from whose plant the gas actually leaked. Moreover, the Union of India also had to make a strategic choice as regards the forum for filing the suit: either in India (Bhopal) or in the United States (in New York) where UCC was registered. In the end the Union of India decided, for tactical reasons, to file the suit against the parent company in the United States. 1. DISTRICT COURT, NEW YORK The suit was filed by the Union of India as parens patriae on behalf of the gas victims for recovery of damages for any and all claims, present and future, before the United States District Court, Southern District of New York. Ironically, the defendant UCC sought to oppose the suit on the grounds of forum non conveniens while the plaintiff insisted for the case to be dealt with by the American Court instead of an Indian court. The Union of India considered that courts in India were not an alternative forum for the following reasons: "(a) the delays inherent in the Indian Court system would lead to an unconscionable delay in the resolution of the cases in India; (b) India's Court system lacked the procedural and practical capability to handle the litigation; 1 See The Hindu (Madras), 9 December 1984. See also Wisconsin State Journal, 8 December 1984. 2 Act No.21 of 1985. See The Gazette of India, Extraordinary, Part 11, Section 1, No.24 (March 1985). (Hereinafter referred to as "the Bhopal Act"). 3 This enactment articulated a new conception of the role of parens patriae, on which the capacity of the Union of India to sue the Union Carbide Corporation rested. See s 3 of the Act, which conferred the "exclusive right" on the Central Government for the purpose. Bharat Desai - 9789004400627 Downloaded from Brill.com10/11/2021 05:08:59AM via free access THE BHOPAL GAS LEAK DISASTER LITIGATION 165 (c) a judgment rendered by an Indian Court could not be enforced without resort to United States courts; (d) UCC's forum non conveniens motion was nothing more than forum shopping. ,,4 As against the contention of the Union of India, the UCC insisted that Indian courts were the best forum for the litigation. In support of its plea on the adequacy of the Indian legal system, UCC submitted affidavits of two senior advocates of the Supreme Court of India, NANI PALKHIVALA and J.B. DADACHANDn. Thus the main battle was fought at the preliminary stage itself On the issue of the best forum to deal with the Bhopallitigation. The presiding judge, J.F. KEENAN, accepted the plea of UCC and dismissed the case On the ground of forum non conveniens.s The judge noted that the Indian legal system was in a far better position than the American courts to determine the cause of the tragic events and fix liability. The judge, in fact, took recourse to the private interest factors described in the Gilbert6 as well as Piper Aircraft7 cases. Moreover, he felt that no American interest in the outcome of the litigation outweighed the interest of India in applying Indian law and Indiau values to the task of resolving the case. Rejecting the argument of the plaintiff that the Indian judiciary was yet to reach full maturity, Judge KEENAN held that to retain the litigation before [the New York Court] would be yet another example of imperialism which would deprive the Indian judiciary of this opportunity to stand tall before the the world. Hence Judge KEENAN dismissed the consolidated case on the grounds of forum non conveniens subject to the following conditions: "1. Union Carbide shall consent to submit to the jurisdiction of the courts ofIndia and shall continue to waive defences based upon the statue of limitation; 2. Union Carbide shall agree to satisfy any judgment, rendered by an Indian court, and if applicable, upheld by an appellate Court in that country, where such judgment and affirmance comport with minimal requirements of due process; 3. Union Carbide shall be subject to discovery under the model of the United States Federal Rules of Civil Procedure after an appropriate demand by plaintiffs. ,,8 4 See "Memorandum of Law in Opposition to Union Carbide Corporation's Motion to Dismiss These Actions on the Grounds of Forum Non-Convienens", in Re: Union Carbide Corporation Gas Plant Disaster at Bhopal, India, December 1984, MDL No.626, Mise. No.21-38 (JFK) 85. Civ.2696 (JFK), 6 December 1985. 5 In Re: Union Carbide Corporation Gas Plant Disaster at Bhopal, India in December 1984, MDL No.626, Misc.21-38 (JFK). All Cases, Opinion and Order of Judge JOHN F. KEENAN, New York, dated 12 May 1986. 6 Gulf Oil Corporation v Gilbert, 330 US 501 (1947). 7 Piper Aircraft Co. v Reyno, 454 US 235 (1981). 8 Supra n.5 at p.69. Bharat Desai - 9789004400627 Downloaded from Brill.com10/11/2021 05:08:59AM via free access 166 ASIAN YEARBOOK OF INTERNATIONAL LAW 2. US COURT OF APPEAL Against the order of Judge KEENAN, appeals and counter-appeals were made before the United States Court of Appeals for the Second Circuit. While the Union of India continued to oppose the dismissal of the suit on the ground offorum non conveniens, UCC opposed, inter alia, the conditions imposed upon it concerning discovery. The Court of Appeals quoted the rationale given by the US Supreme Court in the Piper Aircraft case in endorsing the District Court's dismissal of the suit: "The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the Court has considered all relevant public and private interest factors and where its balancing of these factors is reasonable, its decision deserves substantial deference. 9 The Court of Appeals took the view that there was no abuse of discretion in granting dismissal of the action, as all relevant factors demonstrated the transfer of the case to India for trial and adjudication as fair and just to the parties. As for the UCC challenge to the conditions imposed by Judge KEENAN, the Court of Appeals endorsed the first condition on limitation. It rejected the contention of UCC to monitor Indian Court proceedings, considering the proposed remedy both as impracticable and an abysmal ignorance of basic jurisdictional principles.