Appendix — Bi v. Union Carbide Chemicals & Plastics Co.

Supreme Court brief1993

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eennnnnnnnnnnnnnnnnnnnnnennanenes sanantadtheeA 1993

In The Supreme Court of the United Statés LER

OCTOBER TERM, 1992

Bano Bi, Individually and on Behalf of

the Children of Rashid Kahn, and as

Representative of the Estate of Rashid

Kahn, et al.,

Petitioners

against

UNION CARBIDE CHEMICALS AND PLASTICS

COMPANY INC., et al, Respondents

Abdul WAHID, et al., Petitioners

against

UNION CARBIDE CHEMICALS AND PLASTICS

COMPANY INC., et al., Respondents

APPENDICES TO PETITION FOR

WRIT OF CERTIORARI

\ BENTON MUSSLEWHITE

1250 Lyric Centre

440 Louisiana

Houston, Texas 77002

(713) 222-2288

(713) 222-0391 Fax

ATTORNEY FOR PETITIONERS

TABLE OF CONTENTS

APPENDIX

Appendix A---Opinion of Federal

District Court

Dated February 18, 1992 ............

Appendix A-1---Judgment of

Federal District Court

Dated February 23, 1992 ............

Appendix B---Opinion and Judgment

of Court of Appeals

Dated January 26, 1993 .............

Appendix C---Order of Court of

Appeals Overruling Petition for

Rehearing and Petition en banc

Dated March 26, 1993 ...............

Appendix D---Removal Petition of

Union Carbide Defendants in Soni

Dated February 4, 1985 .............

Appendix E---Removal Petition of

Enserch Defendants in Soni

Dated June 4, 1985 ............00...

Appendix F---First Order of

Remand in Soni

Dated February 20, 1985 ............

Appendix G---Second Order of

Remand in Soni

MOTOG JUNG 27, 1985 oo. icccccnccc,

PAGE

-A59

Appendix H---Affidavit of Adbul

Jabbar Khan

Datec September 25, 1991. ..6 ccnwseunes A69

Appendix I---Affidavit of Kim

Laughlin

was WOMRt 14, ASSL scccctunccdeeeses A99

Appendix J---Affidavit of Kim

Laughlin

peewee Gecouer §, 1981] vacvcckdcsivaaance A135

Appendix K---The Bhopal Gas Leak

Disaster (Processing of Claims)

Act, 1985

Deted March 29, 1968 <escccrckhavur ees A139

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Summary

Plaintiffs initially requested and were

granted oral argument. After the Court

scheduled oral argument, plaintiffs withdrew

For the reasons discussed below, the

Court declines to reach the merits of

dismisses these actions on the grounds of

_ . D : ' ot

forum non conveniens. Plaintiffs’ motions

Procedural History

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dismissed actions consolidated before it by

the United States Judicial Panel on

Multidistrict Litigation. That dismissal

was based on the doctrine of forum non

conveniens. In re Union Carbide Corp. Gas

1986). In finding that India was a more

appropriate forum and deferring to the

T we . . + oO + . ‘

Indian judicial system, the urt stated

[t]he presence in India of the

overwhelming majority of the

witnesses and evidence, both

documentary and real, would by

itself suggest that India is the

most convenient forum for this

consolidated case. The

additional presence in India of

all but the less than handful of

claimants underscores the

convenience of holding trial in

In the Court's view, to retairz

Waa 2 4 )

plaintiffs request, would be yet

another example of impe

hohe - Ally

> an ~ . + ; ~T, t.7 ~ } )

anotner situation in which an

established sovereign inflicted

~ ) ~ : a - | . ry /

its rules, l1ts standards’ and

values on a developing nation.

m ‘ae + tami .e cc) ae TC

[The Court declines to play such a

role.

TA + 146-67

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LT) 4 IO , tne nited Cate 5 ,OUL Tt eis

Lnne ] For the —alatalea ane yr oO)) - moar Find ann

Appeals de wi Je 11c re i OGLE a dp bo Wo Uh ch 2, & 2 oe ee . A Qai.its

affirmed this Court's dismissal on forum non

conveniens grounds. In re Union Carbide

Corp. Gas Plant Disaster, 809 F.2d 195 (2d

Cir. i987). In that opinion, the Second

Circuit held that

we are satisfied that there was

no abuse of discretion in

granting dismissal of the action

[on forum non conveniens

grounds]. On the contrary, it

might reasonably be concluded

that it would have been an abuse

of discretion to deny a forum non

conveniens dismissal.

The United States Supreme Court denied

certiorari. Executive Committee Members, et

al. _v. Union of India _ and Union Carbide

-Orp., 484 U.S. 871 (1987).

On March 25, 1985 the Parliament of the

Union of India enacted the Bhopal Act. That

Statute gave the Union of India the

exclusive right to represent Indian citizens

in connection with claims arising out of the

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removed both of th actions to federal

~ fr) 1aQa0 rm £

On January 30, 1991, over the opposition of

rm a al y+ He rOrnpt +h _ + la | Ce a+ ~

Dial Ciris attorneys, che Jia GG »~tales

Ti) 7} 2) ~ + 1 rr T — cs

Judicial Panel on ultidistrict Litigation

Defendants move pursuant to Fed. R.

Civ. P. 12(b)(6) for an order dismissing

plaintiff's complaints on the ground that

they fail to state a claim. In the

alternative, defendants move pursuant to

Court of Bexar County, Texas. The second

action, entitled Bano Bi, et al. v. Union

Carbide Corporation, Union Carbide of India,

Ltd., Union Carbide Eastern, Inc., Ensercnh

Corporation, Humphreys & Glasgow

Consultants, Ltd., Humphreys & Glasgow,

Ltd., and Ebasco-Humphreys & Glasgow, Inc.,

was filed in the 58th Judicial District

Court of Jefferson County, Texas.

summary judgment in their favor on the

complaints

Defendants advance several arguments 1n

Support of their motion for summary

judgment, arguing that such relief 1s

warranted

on the grounds that: 1) an accord

and satisfaction has arisen 1n

law and there has been a

compromise, settlement and

release of these claims, barring

this litigation; 2) under the

doctrine of res judicata,

plaintiffs are bound by_ the

settlement agreement entered into

by the Union of India, Union

Carbide, and Union Carbide of

India Limited and the subsequent

Orders entered by the Supreme

Court of India, which settled and

disposed of these claims arising

from the Bhopal tragedy; 3) under

the doctrine of collateral

estoppel, plaintiffs are bound by

the previous decision of this

Court dismissing all actions

pending under MDL 626 on _ the

ground of forum non conveniens;

4) plaintiff's claims are barred

on statute of limitations

grounds; 5) plaintiffs' claims

are barred on laches grounds; and

Al0

Pe ee

6) plaintiffs and their attorneys

lack standing and authority t

maintain these actions in light

of the Supreme Court of India's

rulings with respect to the

Bhopal Gas Leak Disas

(Processing of Claims) Act, 1985.

Defendant's Notice of Motion at 2.

In opposing defendants' motions,

plaintiffs advance a thicket of arguments,

some of which would be labeled imaginative

'@)

Kind or charitable observer. The Bano

09)

Bi plaintiffs argue that the Court should

reconsider rulings made by District Judge

Joe Fisher of the Eastern District of Texas

who dismissed certain defendants and who

denied a motion by plaintiff to remand one

of the actions to state court. The

defendants oppose summary judgment on accord

and satisfaction grounds by attacking the

fairness, propriety and constitutionality of

the Bhopal Act and the settlement between

Lm 8)

defendants and the Union o India.

All

forum

the

non

apply

Qi4

smissal

A 4

oes

Bhopal disaster sh

have

uid

this action. Abdul Wahid Memorandum at 6-7;

Bano Bi Memorandum at 87-91. As it did in

1986, this Court will apply federal forum

non conveniens law to the issue of the

convenience of this forum. In re Air Crash

Disaster Near New Orleans, Louisiana on July

9, i962, 821 F.2d li@?l, ti99 (ieee eee

1987) (en banc) ("We therefore hold that a

forum non conveniens when addressing motions

to dismiss a plaintiff's case to a foreign

; - re y a 4 c i.

Airways Inc. v. Lopez, 490 U.S. 1032, aff'd

a ac PA - oa 907

in relevant part and vacated in part, 883

~ —— —————

_ 5 = c ; rf 1H00 . } f\t

F.2d 1 5th Cir. 1989); Rudetsky v. O'Dowd,

federal forum non conveniens law); Fiorenza

v. U.S. Steel Int'l Ltd. 311 F. Supp. 117,

'19 (S.D.N.Y. 1969) (forum non conveniens is

actreac

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"Makes it plain and clear that India is not

an adequate alternative forum." Bano Bi

Memorandum at 92. They contend that the

inadequacy of the Indian forum has been

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confirmed by the i1naaequate settlement and

which that settlement was reached. The

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set forth in its 1986 decision, however, the

Court concludes once again that India is an

adequate forum for this action. In re Union

Carbide, supra, 643 F. Supp. 847. The fact

that plaintiffs in this action perceive the

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4 a Sa wf asr\iJ id L 4 wshhuli idl 7 ae ST euVWil | ae SY a» We 44\ WJ -

‘OMPD~ANY TIC £ -mMOY , ~> an Tir ~Y

‘ASA SAAN L a iVYwve gf ee —-—+- sz Y CA sm A + Asha A

al é | ‘ike aye r tT

1 ¢ > and Y & > 7 °

AL WILUC ~-VLVPOULALIOT, cS Gieysz .

—— eee ee ee ee — x

“\

rT ArxTo ~~ T

BAN( R at °

JLVANNVY yi, - “3

UNION CARBIDE CHEMICALS AND PLASTICS :

COMPANY, INC. formerly called Union

. +

Carbide

b.-

o))

ue)

t—

rth

69)

“@)

br?

12)

Rule 12 (b) (6), Piticwma Vertes Or. in the

alternative, for summary judgment, pursuant

to Rule 6, F.R.Civ.P., plaintiffs having

moved for reconsideration of two rulings Dy

a Texas ederal ‘court, ne refusing to

remand these actions to a state court in

Texas, and another 1ismissing certain

~] > = - rant ~ ¥ ~] } ~ ~] } * / ~~ ~

jlefendants, and the said motions Naving come

Pr } Wan; hle TOUN * KTORIDN

vVeELore La Se NOnora L<S JUTIN -_ ALOANAN,

TT ¢ T T y + } vA + +hpoay + + y y

** * 4 . an 2id\A s e Ur netcai Ge AA

’ ) v7 2 7 b rang naere B.

r € DY Ual y 4 , , 9 D , lla LIiG rendgded < } A

—

“+

—

land

—s

—~

“+

| mei tFtatl + re .) + } 7 ss rin Y Y

plaintiffs’ m 1ons, and the Cour leclining

+ / . ~} * } on to + 1¢ + . eal maArinne

) reach the merits of defendants’ motions,

Y cra | y) < ynieaeeaois#8ry t+ hy ,c oO - > rea y + } ’

had \ a ( , As Dil LSS1nNQ iif € av liUuis Wii \ j

qroundas ¥ : rorum nor . nyveniene nq

ALVUUI © L LU Us dil 1iQUil Uillv EP LL, qailUu

removing these actions from the active

docket of the Court, it 1S,

ORDERED, ADJUDGED AND DECREED: That

plaintiffs" motions be and they are hereby

denied, and it is further,

ORDERED, that these actions be and they

are hereby dismissed on the grounds of forum

non conveniens. The Court declines to reach

erits of defendant's motions, for the

reasons discussed in the Court's Opinion and

Order, dated February 18, 1992, and it is

further,

ORDERED, that these actions be and they

are hereby removed from the active docket of

the Court.

DATED: NEW YORK, NEW YORK

February 23, 1992

Clerk a ie

A23

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 253, 254 -- August Term 1992

Argued: November 10, 1992

Decided: January 26, 1993

Docket Nos. 92-7325, 92-7327

BANO BI, INDIVIDUALLY AND ON BEHALF OF

THE CHILDREN OF RASHID KAHN, AND AS

REPRESENTATIVE OF THE ESTATE OF

RASHID KAHN, ET AL.,

Plaintiffs-Appellants,

UNION CARBIDE CHEMICALS AND

PLASTICS COMPANY, INC., ET AL.,

Defendants-Appellants.

ABDUL WAHID, ET AL.,

Plaintiffs-Appellants,

UNION CARBIDE CHEMICALS AND

PLASTICS COMPANY, INC., ET AL.,

Defendants-Appellees.

Before: NEWMAN, CARDAMONE and MAHONEY,

A24

Circuit Judges.

Appeal from the March 4, 1992, judgment

of the United States District Court for the

Southern District of New York (John F.

Keenan, Judge) dismissing two class action

complaints arising from the Bhopal disaster.

1 rmge st

cirmed.

Benton Musslewhite, Houston, TX,

for plaintiffs-appellants.

Bud G. Holman, New York, N.Y.

(Jeffrey S. Cook, Lisa E. Cleary,

Kelley Drye & Warren, New York,

N.Y., on the brief), for

Defendant-appellee Union Carbide

Chemicals & Plastics Co. Inc.

(E.R. Norwood, C. Clint Adams,

Taylor & Norwood, Liberty, Tex.,

Submitted a brief for defendants-

appellees Enserch Corp., Humphreys

& Glasgow Consultants Pvt., Ltd.,

Humphreys & Glasgow, Ltd., &

Ebasco-Humphreys & Glasgow, Inc.)

JON O. NEWMAN, Circuit Judge:

This appeal presents an interesting

issue of comity among nations in the

resolution of claims arising from torts

A25

state courts of this country should defer to

the judgment of a democratic foreign

government that disputes arising from amass

tort occurring within its borders can be

best resolved by according the foreign

government exclusive standing to represent

the victims of the disaster in the courts of

the world. This question arises on an

appeal by a class of tort victims from the

March 4, 1992, judgment of the District

Court for the Southern District of New York

(John F. Keenan, Judge) dismissing two

complaints on the ground of forum non

conveniens. We conclude that the plaintiffs

lack standing and on that ground affirm.

Background

On the night of December 2, 1984, the

most devastating industrial disaster in

~ 4 ts

bald Y) ct

rf ‘ ‘

) : c pes at D

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uf) ) ,

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sl, - “ O ' 2) & . ar ‘ O Vv 7 v

O N ; ; O ani 4 = ” : ~ = ; 4 T

J tT ab) ) r CC os ne hy : or “eq j "

OF : al re ie) Y) £5 YQy CC) a5 sy e f <)

| " ae a V UO ) = 4) “) h4 m4

‘ 4 4 } ~~ O oo) <8) iJ fr) +

b4 , O 4 w Q J or yy ( KY) ‘eP pail

> 18) “4 c 7 A ‘ae a — ’ C wv Cc re eer" cG yy

; (

sail an | - 44 aw » 7 4 r4 ) > A

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, ‘ = Y ; r . )

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©) . 0) — 1e) ) =

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wo 1 oO yg & YV cS © G& 5 &

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_ oT es .

; } O fo] by ( C 4 ae = 8

= ee ha qd) = - "te fam! » rs

~ ant - ” > O O r Y) 4 = S

4 cl VW 2) GH Vv ; - — nD O G ae

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C) c ee TS a ) O Q 40) r 4 ,

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a © Go (8 2 > = ©. &c? | = =

r L , tana - C = A a er

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~ I ») + ) ‘ =) Y)

) t , ) O ~ () Y) iJ w

‘ ) 4J ih + cr ~ = 7 ( ‘

rb) ) r ~ uf) by cr v mM <8, i

4 ep) th + veil D »@) <b) e W - f) fe) ww

- re) O by ON oO we = 7 4 “ ‘

f sy 1 ’ { O onl 0“) “eee Wy wu" wT Cc

1 4 4 ) +- Ww by rae} con 40)

P 0 Cc ' . 4 Y Q po a0) Ww a7 |

~~] Q ‘ r\ a — ~ ” res Ww van” : ~

: - © 40) od -J OY | a 4 ( qd) ” us)

ty ct th vane Cd)

CG v iw A par

-OMmMmpialnt in the Southern 1strict of New

York on behalf of all the 1ctims of the

} T au '

Bhopal disaster [The Indian Government's

decision to bring suit in the

was attributed to the fact that the

courts did not have jurisdiction over Union

Carbide Corporation ("Union Carbide"),

UCIL's parent company.

In a thoroughly reasoned Opinion, Judge

Keenan granted Union Carbide's motion to

dismiss the cases before him on the ground

of forum non conveniens over the objections

of the Indian Government and the individual

plaintiffs. See In re Union Carbide Corp.

Gas Plant Disaster at Bhopal, India in

December 1984, 634 F. Supp. 842 (S.D.N.Y.

1986). Judge Keenan conditioned his

dismissal on, among other things, Union

Union Carbide has since changed

its name to Union Carbide Chemicals and

Plastics Company Inc.

Ss consent to the jurisdiction of the

Disaster at Bhopal, India in December 1984,

ous £.40 195 (2d Cir.), cert. denied, 484

Joeman OL (1987)

In September 1986, the Indian

Government, acting pursuant to its authority

under the Bhopal Act, brought suit on behalf

Of all claimants in the District Court of

Bhopal. The litigation continued in India

for more than two years. By orders dated

February 14 and 15, 1989, the Supreme Court

Of India approved a settlement of "all

litigations, claims, rights and liabilities

+- " ] ern , no ltr £

disaster UN1lON Carbide Corp V UN1ON OT

Beat hy

Under the settlement, Union Carbide and UCIL

agreed to pay $470 million to the Indian

Government for the benefit of all victims of

the Bhopal disaster. See id. at 91. On May

4, 1989, the Supreme Court of India set

forth its reasons for concluding that the

settlement was just and reasonable. See

Union Carbide Corp. v. Union of India, 1989

[Supplement] S.C.A.L.E. 97. The Court was

concerned primarily that the victims of the

disaster receive immediate relief. See Id.

at 105-06. On December 22, 1989, in a

related decision, the Court upheld the

constitutional validity of the Bhopal Act

and confirmed the Indian Government's

exclusive authority to compromise all claims

arising out of the Bhopal disaster. See

Charan Lal Sahu v. Union of India, 1989

[Supplement] S.C.A.L.E. 1.

After settlement of the Indian lawsuit,

A30

ation

snc

ens

ive

) A)

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4 ie)

= 4

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VY) 4

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these actions

dismissed as

exas,

eys &

On, Humphr

> =

Orporat

Enserch

»- Humph

basco

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vanua

these

transferred

gat

actions to the S

neenan

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remand his

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ail

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and denied Wahi

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3. Whether the alien defendants were

properly joined by asserting jurisdiction

Over their parent corporations?

4. Whether defendant Union Carbide

Eastern, Inc., a Delaware Corporation with

its principal place of business in Hong

Kong, is considered an alien for purposes of

diversity jurisdiction?

9. Whether removal of the state court

actions was improper if the in-state

defendants were properly joined?

6. Whether removal of the state court

actions was improper if aliens were both

plaintiffs and defendants?

ley

7. Whether defendant is collater

estopped to deny that removal was impr

because of a_ remand ruling in a p

District Court suit in Texas?

;

aiiy

oper

ab Yr

~ ~

8 Whether forum non conveniens is a

matter of federal or state law?

9. Whether dismissal on forum non

conveniens grounds was proper?

10. Whether, if removal was proper and

forum non conveniens is a matter of federal

law, a federal court, dismissing a suit on

forum non conveniens grounds, should remand

to state court, or dismiss because the

removing parties are entitled to the benefit

of the federal court forum non conveniens

ruling, despite conflicting state law?

A34

tho

as Ne

— Ad

f\ tT rrr oP a

dSvernme

DW Was

ca uUn

TO MY

m4 Y)

VE wv

¢9) Qy

ra @W

Ema

O ”

by ya ¢p)

if «

QO, 0 &

= >

c 4 er

ee ‘

OUwn

SS ae

My)

~ r4

SHE

O O:A

ea wre

() Qa

)

- nw

4 © 1

o rt 1)

”) YU ow

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4 re )

O WwW ‘

YD 42 OD

w @ cc

wT 2) To

Preamble to the Bhopal Act. To effectuate

the swift and just resolution of claims,

section 3 of the Act delegates to the Indian

Government "the exclusive right to,

represent, and act in place of (whether

within or outside India) every person who

has made, or is entitied to make, a claim

for all purposes connected with such claim

in the same manner and to the same effect as

such person." This delegation includes the

right to institute or withdraw a suit and to

enter into a compromise. Section 3 also

provides that, in cases pending as of the

effective date of the Act in courts outside

of India, the Indian Government would

"represent, and act in place of, or along

with, such claimant, if such court or other

authority to permits." Section 4 of the Act

permits individual claimants a limited right

to participate in the proceedings. Section

A36

w= - he, oo. * Pn ol . tt aS P 7 7 o am

4 states that the Indian Government shall

lave due regard to any matters which sucn

person may require to be urged with respect

to his claim and shall, if such person so

desires, permit at the expense of such

- ~- a ae ot ian 5 £ ~

person, a legal practitioner of his choice

or + + _ } - ~ _ , ~ > ~ = ,_

to be associated in the conduct of any suit

y ae Y aha a a i ee ’ an =" + al ai + b re } ae "

I ee eB DELUCSSULIEIW E28 4E40 401 & et Lalm.

laa! . . P . " : + J 4 T ’ ) . =

The Supreme Cour of India, in a

y + y + 7 . ~ ) " ry - bh + eho I -~ }

lengthy opinion, concluded tna he Bhopal

)

~ + °.9 ~ “- ne 5 Haire 4 -~ | Se + } > Ind —*

AC L Wa Onst1litutlonadl unaer = ¢) — indaian

ArT . +1 + - ro + } 5 Vom . r ~~ DB,

ons LLCUEL ZO ali tnat ne r of V1lOla ced no

} m= + - T aa

principles of natural justice. In so

7 } . + } oa rel ot - = a >) =

ruling, the Indian Court rejectea many ol

the same arguments that appellants urge in

this Court. The Indian Court held that the

—

Indian Governmen slusive representation

ee)

‘@)

sovereign capacity

would be constitutional as long as tne

Indian Government assumes the obligation to

A37

maintenance untlii monies are realized from

on = — +

JNLON -arpd1de, DeCause Ne indian

Government s SAaGCLUSLIVe representation

deprived the victims of their right to seek

immediate relief from Union Carbide

= ~lernao nn . - ~ om , «= 7 Ya 5 £ ,

themselves. See Charan Lal Sahu, 1989

excused the Indian Government's failure to

give notice of the settlement to each of the

several hundred thousand claimants prior to

approving the settlement. It reasoned that

although the lack of notice may affect the

appearance of justice, justice was in fac

done because the arguments against

settlement were adequately advocated by

those who were aware of the settlement and

argued against it. See id. at 63-65. In

Sum, the Court confirmed that as far as

Indian law is concerned, the Bhopal Act's

A38

, - - ~ — ly ~ + 5 aotrs A -- — Tnn _

jrant of exclusive standing to tne Indian

Government was proper.

of a foreign government that purports to

grant that government exclusive standing to

represent the victims of amass tort that

) Irred withi its border: India 1S a

Jemocracy. rts nstitution, which took

effect in 1950, provides for a republican

form of parliamentary government and

Juarantees the fundamental rights of the

people, including equal protection and

procedural due process. See Chun-Chi Young,

The Legal System of the Republic of India,

in 9 Modern Legal Systems Cyclopedia 9.80.1,

S$§ 1.3(A), 1.3(B) (2) (bob) (Kenneth R. Redden

oa)

Linda L. Schlueter eds., 1990). | & a

President is chosen for a five-year term by

A39

WillVU

T -

, ao

Oe oe Se & aes

members of

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{

most effective method of dealing with a

difficult problem would frustrate India

efforts

Under the act of state doctrine, we

Wiii not sit in "judgment on CTS: Of

a government Cnaracter done by a foreign

state Within its own territory and

applicable there." see 1 Restatement

Third) of the Foreign Relations Law of the

United States § 443 (1987). Although the

act of state doctrine is not precisely

applicable here, the concerns underlying it

Pport our result. That doctrine has

constitutional’ underpinnings" and "arises

out of the basic relationships between

branches of government in a system of

separation of powers." Banco Nacional de

Cuba v. Sabbatino, 376 U.S. 398, 423 (1964).

Our Supreme Court was concerned that the

Judicial Branch's "passing on the validity

A42

of foreign acts of state may hinder rather

than further this country's pursuit

both for itself and for the community of

nations as a whole in th international

sphere." Id. Here too, were we to pass

CO a cisaster Cnat occurreaq within | x

haran Yr ++ t lin lsc WY\T ‘otha a ~ ht nea t TK

VOLGUSTS, Pr WOUL GlasFuvdt YUL L@ié me Ye) gh W1tTN

+h + lathtaba wv nad Friict rot H+he attnr+t +

lac OUNTTrYy ana LLUStrlate cne ft ap EB ot OL

+hpa nrarn a n\n) - loa taatan’ m + - aH AD ant

yh INncernatlonail >Omm 1ty * AeEVELOpP

methods to jleal with problems

ay)

the future.

~—

‘=

not relevant to our determination

whether, under our constitutiona]

ey)

(

ie)

©)

Our Government could pass an act similar to

the Bhopal Act. We are deferring to the

Statute of a democratic country to resolve

disputes created by a disaster of mass

proportions that occurred within that

country. Any challenge appellants may have

to the settlement must be made through the

legislative or judicial channels that are

available in India. We hold that when a

recognized democracy determines that the

interests of the victims of a mass tort that

occurred within its borders will be best

served if the foreign government exclusively

represents the victims in courts around the

world, we will not pass judgment on that

determination, and we will permit only the

foreign government access to our courts to

litigate those claims, subject of course to

Our Own requirements for standing. This

conclusion is especially compelling in a

case such as this where almost all of the

victims are Indian citizens.

Since our resolution of the standing

issue permits us to dispose of the appeal,

the only remaining issue is whether we

Should affirm the judgment dismissing the

A44

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APPENDIX C

TTATTMrer AImMmnAmMme ant ImMM —— AARPraATA

be - fat he GS - Rrwrer

JiV i i isl VY i fii isd ~ SUING Si Sak &£ hat Absal

rAT mre

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APPENDIX D

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YAMA ADAM WH Ta) _ _ S

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[xy

The petition of defendant UNION CARBIDE

CORPORATION ("Union Carbide"), pursuant to

28 U.S.C. §1441 et seg., respectfully shows:

ks Plaintiffs instituted an action

against defendants Union Carbide and Union

Carbide India Limited Ga! oto hae in the

District Court of Jefferson County, Texas,

09)

anesh Chand Soni and Mrs. Ranesh

entitled

Soni, for themselves and as Guardians and

Next Friends of their Minor Children, et al.

v. Union Carbide Corporation and _ Union

Carbide of India, Ltd., by filing the

Petition on January 3, 1985 and causing the

Citation and Petition to be served on Union

Carbide on or about January 29, 1985. Upon

information and belief, the Citation and

Petition have not been served upon UCIL. (A

copy of the Citation and Petition are

annexed hereto as Exhibit "A" to this

Petition for Removal.)

A50

r The time for Union Carbide to

answer or move with respect to the Petition

has not expired and no further proceedings

have been had herein.

The matter in controversy exceeds

the sum of Ten Thousand ($10,000) Dollars,

exclusive of interest and costs.

4. This is a civil action brought in

a state court of which the United States

District Courts have original jurisdiction

—

CY)

under the provisions of 28 U.S.C. §13

because of diversity of citizenship, and the

defendant Union Carbide is not a citizen of

the State of Texas, the state in which the

action was brought.

5. As set forth in Paragraph I of the

Petition, the plaintiffs are citizens ol

boa

India. n Paragraph II of the Petition, the

plaintiffs allege that they are in the

process of obtaining appointments of

Citizens of Beaumont, Texas to represent the

various estates of the decedents and of the

minor children involved in this case, and

~ + +hie Do+ + ~y +ny Ramnara ! y Ai nti FF Oe

Ul 5 ¢ ee gg, SO ae Ee | SSF MReEMOVdaGlL, WLGLiCsALLS

in <7 ry + —~Kn et 3 non ~ial a’ oh ant an an mrHmMoantea +

nav 110 JJCE LIS og Rh om GI a MULILLINGCIIES Ul

a oe RQ MAY m “ ~r } ~F

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has never had any manufacturing facilities,

offices or other places of business in

Texas. UCIL does not have and has never had

any Sales representatives, agents, officers

Or employees engaged in business in Texas,

and UCIL does not hold and has never held

> ) po ars . ' ~—e - 1. a £m ~ :

any sales, directors Or otner meetings in

Tov Tn 14 ; TIC TT } oS

Texas. In addition, JICIL nas never

solicited through the mails, or otherwise

offered to sell any of its products in

through Texas. UCIL has never partici

in any negotiations in Texas or with any

resident of Texas, for sale of any of its

products. UCIL has never recruited in Texas

any persons for employment Because

Plaintiffs knew or readily could have

ascertained that UCIL has done and does no

business in the State of Texas, plaintiffs

als

diversity

the

—id

does

bide also

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‘72

a foreign state and defendant Union Carbide,

which is a citizen of the United States and

not a citizen of the State of Texas. Even

if plaintiff do proceed to appoint as

representatives and join Texas citizens as

plaintiffs, which, upon information and

this Petition, the requisite diversity would

Still exist as between plaintiffs and Union

Carbide which is a citizen of Connecticut

and New York, but not of Texas.

ll. The matter in controversy exceeds

the sum of Ten Thousand Dollars

(910,000.00), exclusive of interest and

COoSts, as the Petition demands damages in

the amount of no loess than Twenty Billion

Dollars ($20,000,000,000.00), punitive

damages in the amount of no less than Thirty

Billion Dollars ($30,000,000,000.00), and

aA 44a VY

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48)

7A T

MW “Sw

AYO is di

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By: S/

Bldg.

Jacint

U Liat

San

595 Orleans

Beaumont,

Texas

409) 835-4581

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APPENDIX E

TXT mMmrrm TTAITMOr amn Tra mMramnram COIIRT

lanl m —~ i j — i

LIN ime JINR SEO VIL GO WL init i -OQUI i

— mn — - m mn ”

FOR THE EASTERN DISTRICT OF TEXAS

za V/i 4 idk BAO LG a ee * 4ir\iAUN 4 Web aku

BEAUMONT DIVISION

Mest iVisV/IV Gd ee 4wiWViyv

mn TItTT T NOMTAAKT AIT

-it Vids FAW LALYUIN INU.

"~nAATM OCT? saTIRrATrT alat tina os nA T L

~ | ml —~ = ~~

RANBOM UNAND SUNIL, Gl Ab. >

\7"C “>

vw . ~

é.

TTATT AAT "AT —— “AD DADAMTA\ L

iVNiUIN J-AKR D1 UE sR VUARA AL L JIN, Y

mm AT c

E a

tsi Fildis e

DOM rMTA, CAL REMOUAT

J oo ~< f

gf eS Se ee rUrK P\ih"i/ V FAdy

SOM ATA marconrnerrr CORDADATTAN

~ il ~~ ) { ry cy

~ SJE INOW, BNOBACN ~-URPFURAL LUN and

mmnoOrns rImm rImMMmu.n or ROrDN TRIP a £ a ra

| , \ — 7 ~ Y ie YT)

ty ©) a VOLS, LUMPHRE YS § IJ sd LOGUW, eS re Ze Lengcants

~ + nn aYr rn Feor aa) r mor t+ +1 MHnNnNorYre ann

aw~ EAU, LIETCIMaALCer Caiied petitioners, and

9 oO rs... & Tnenr nNarirsAr i 2 YOM ala bv

P4140 CNIS CNEeIYT petition [for removal, and y

ie The above captioned action is a

ivil ction originally commenced in the

County, Texas, and iS now pending in that

Court. Process was served on petitioners on

ns The matter in controversy,

exclusive of interest or costs, exceeds the

Jurisdictional minimum of this Court. By

their action, plaintiffs seek damages and

injunctive relief for alleged personal

les and property damages allegedly

Caused by defendants' in connection with the

accident at the Bhopal India Plant of Union

Carbide of India, Ltd., on or about December

3. The plaintiffs' claims for relief

as stated in their complaint arise under the

treaties of the United States within the

meaning of 28 U.S.C. § 1441 (b), the removal

Statute. AS appears from plaintiffs

amended petition, attached hereto as Exhibit

mn t+ hy 7 % CS a es of <2 ae hs ee ee omy

ma, the piaintiftfts base their claims for

£ f ~ *

reiiet against jefendants upon tne

A60

allegation that plaintiffs have standing in

exas State Court. Plaintiffs' alleged

causes of action thus depends upon the

existence of "equal treaty rights" between

the United States and India. The existence

rth

fe) such alleged "equal treaty rights"

}

ay)

i ®

ay)

“By

Guiy verified, in this Court within thirty

directs, for paying the costs and

disbursements incurred by reason of these

removal proceedings should thi:

'€))

- - } ~ - ~ 5 ‘a * Ze a = ‘4 17 tr } }

determine that this action was not removable

a Y ‘ry ¢ rr thie ("miirt

y removed to this Court.

Or was improper]

Aol

WHEREFORE, PETITIONERS PRAY that this

action be removed to the United States

District Court for the Eastern District of

Texas, Beaumont Division.

Dated this 6th day of June, 1985.

Respectfully submitted,

C. Clint Adams

Suite 840, Enserch Center

300 South St. Paul

Dallas, Texas 7520]

E. R. Norwood

Bar No. 15113500

340 Main Street

Liberty, Texas 77575

409/336-6408

OF COUNSEL:

TAYLOR & NORWOOD

340 Main Street

Liberty, Texas 77575

ATTORNEYS FOR PETITIONERS

ENSERCH CORPORATION and

EBASCO-HUMPHREYS 6 GLASGOW,

Arc

THE STATE OF TEXAS S

COUNTY OF LIBERTY S

Ao2

BEFORE ME, the undersigned authority,

on this day personally appeared E. R.

Norwood, who being by me duly sworn on his

GLASGOW, INC., is duly qualified and

horized in all respects to make this

idavit; that he has read the above and

Oing Petition for Removal; and that

Statement contained therein is true.

oo i i)

@M rh Dw

<= 0 ra €

Mr ret

M Ft

a a |

SUBSCRIBED AND SWORN TO BEFORE ME on

tne 4th day of June, 1985, to certify which

Witness my hand and official seal.

NOTARY PUBLIC IN AND FOR

THE STATE OF TEXAS

L hereby certify that a true and

-Orrect copy of the foregoing instrument was

tuLy served upon the following

Benton Musslewhite

609 Fannin Building, Suite 517

Houston, Texas 77002

Thomas Henderson

Frick Building, Rm. 1601

Pittsburgh, Pa. 15219

Joseph C. Blanks

1119 First Texas Bldg

a aaa cai iain aca iia tia iii

470 Orleans

Beaumont, Texas 77701

Stephen Sheller

1515 Locust

Philadelphia, Pa.

Gene Locks, Esq.

Greitzer & Locks

1500 Walnut Street, 2lst Floor

Philadelphia, Pa. 19102

+s>

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

CIVIL ACTION NO. B-85-257-CA

RANESH CHAND SONI, ET AL.

VS.

UNION CARBIDE CORPORATION AND

UNION CARBIDE OF INDIA, LTD.

ANAMMADAN

ORDER

CAME ON this day to be heard the Motion

of Plaintiffs to Remand and for Sanctions in

the above styled cause, and the Court,

having considered the motion and_ the

arguments of the parties, is of the opinion

that said motion to remand should be

granted, and that Plaintiffs" Motion for

sanctions should be denied, and it is,

therefore,

ORDERED, ADJUDGED AND DECREED by the

Court that Plaintiffs’ Motion for Sanctions

Aé5

be and the same is hereby DENIED; and it is

FURTHER ORDERED, ADJUDGED AND DECREED

by the Court that Plaintiffs' Motion to

Remand be and the same is hereby in all

things GRANTED, and the Clerk is directed to

remand this cause forthwith to the District

Court of Jefferson County, Texas, from which

it was removed.

SIGNED AND ENTERED this the 20th day of

February, 1985.

UNITED STATES DISTRICT JUDGE

Ao6é

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

CIVIL ACTION NO. B-85-846-CA

RANESH CHAND SONI, ET AL.

VS.

UNION CARBIDE CORPORATION,

ET AL.

MAMAMAMD WM

ORDER

Came on to be heard the Plaintiffs'

Motion to Remand this cause to the State

Court and for sanctions, and the Court being

of the opinion that the Motion to Remand

should be granted, but the Motion for

Sanctions should be denied, it is,

therefore,

ORDERED, ADJUDGED AND DECREED that this

cause be, and it is hereby, immediately

remanded to the State Court of Jefferson

County, Texas.

Ao7

SIGNED AND ENTERED this 27th day of

June, 1985.

UNITED STATES DISTRICT JUDGE

A68

APPENDIX 8

BEFORE ME, the undersigned authority,

holding the position commensurate with the

position of Notary Public in the United

States, appeared ABDUL JABBAR KHAN, known to

me, and after first being sworn, did upon

his oath, - state, Swear and affirm as

follows:

My name is ABDUL JABBAR KHAN. My

father's name is Abdul Sattar Khan. I

reside in Bhopal, India. My address is 51

Rajendra Nagar, Bhopal 462016. I am 35

years old, of sound mind, and make this

Sworn statement on the basis of personal

knowledge. The statements incorporated in

the attached document are true and correct.

A69

—

SIGNED THIS, the 25th day of September,

L991.

SWORN TO AND SUBSCRIBED before me, the

undersigned authority, on this the 25th day

of September, 1991.

Notary Public/Commissioner of Oaths

for the State of Madhya Pradesh,

Union of India

A70

UNION OF INDIA

STATE OF MADHYA PRADESH

CITY OF BHOPAL

BEFORE ME, the undersigned authority,

holding the position commensurate with the

position of Notary Public in the United

States, appeared Abdul Jabbar Khan, known to

me and, after first being sworn, did upon

his oath, state, swear and affirm as

follows:

My name is Abdul Jabbar Khan. I reside

in Bhopal, India. I am over twenty-one (21)

years of age, of sound mind, and make this

Sworn statement on the basis of personal

knowledge. I am the leader of Bhopal Gas

Peedit Mahila Udyog Sangathagn (Bhopal Gas

Affected Working Women's Union), the largest

Organization of gas victims in Bhopal and

the only victims\' organization which has

been continually involved in the legal

proceedings.

A7l

I have been intimately involved with

respect to the claims of victims for damages

for death or injury arising out of the

Bhopal disaster, which occurred December 2-

3, 1984. I am fully familiar with all of

the circumstances and events Surrounding the

efforts of the Bhopal victims, since 1984 to

date, to obtain justice for themselves in

both the American and Indian courts.

I hereby state, swear and affirm as

follows:

1) I am familiar with the first Cause of

action which was filed on behalf of some of

the Indian victims in the United States

District Court for the Southern District of

New York on December 7, 1984, such action

being entitled In Re Union Carbide

Corporation Gas Plant Disaster, MDL Docket

No. 626. I understand that the Bhopal cases

filed in the New York Federal Court remained

A72

pending there up until May 12, 1986, when

the Federal District Court dismissed all the

cases before it on grounds of forum non

conveniens.

2) I am familiar with all the plaintiffs

named in the action styled Bano Bi, et al.,

Plaintiffs v. Union Carbide Corporation et

al., Defendants, Civil Action No. 1: 90 cV

883, which is also presently pending in the

Same U.S. District Court in New York, in

which MDL 626 pended. As leader of the

Bhopal Gas Peedit Mahila Udyog Sangathan, I

work with the Plaintiffs in Bano Bi to

employ Mr. Walker and other American counsel

and I have discussed with them whether or

not they were a part of the original, 1984

action in the New York Federal Court. I can

State that to their knowledge, they were not

ever listed as a plaintiff in the original

action and had not given any American lawyer

A73

actual authority to list them or represent

them in the Original, 1984 action.

Therefore, I can state that they were not an

individual or formal party to the Bhopal

Suit in the Federal Court in New York, at

the time this Court dismissed that case on

May 12, 1986 on grounds of forum non

conveniens.

3> I am also familiar with the proceedings

that have been conducted here in India

purportedly on behalf of the Bhopal victims.

Contrary to Judge Keenan's prediction that

the Bhopal case in India would be handled

expeditiously and efficiently, the contrary

has been true. Suit was filed by the Union

of India on behalf of all Indian Bhopal

victims on September 5, 1986. It is now

September of 1991 and not a cent has been

paid to any victim out of the settlement

that was allegedly reached on February 14,

1989.

4> Between the time such suit was filed in

September of 1986 and the alleged settlement

was reached almost three years later, in

February 1989, the very things that

Professor Marc Galanter had indicated would

probably occur in terms of delay, backlog,

postponement and deferral, gig: in. zract

occur. Because of India's practice of

allowing interlocutory appeals on minor

Subjects and because Union Carbide appealed

everything possible in order to delay

proceedings, when the alleged settlement was

reached in February 1989, the Bhopal case

was not anywhere close to being tried. I

}

the phrase ustice delayed is justice

denied" ever had any meaning, it has had

meaning with respect to the Bhopal

litigation in India.

<7 Since the settlement was announced, the

A7l5

vast majority of victims have made it clear

that they are completely unhappy with the

decision and consider it a product of

conspiracy between Union Carbide (UCC) and

government officials. Since mid 1989, the

Supreme Court of India has been considering

appeals by victims seeking to overturn the

Settlement. The Supreme Court still has not

made a final decision. Even if the Supreme

Court were to rule on these appeals by the

end of the year, I have been told that at

least another two years would pass before

any distribution would be made to victims.

This would be over seven years after suit

waS Originally filed in India by the Union

of India and simply goes to show that

Professor Galanter was entirely correct in

his opinions that endemic delays in the

Indian legal system renders India an

inadequate alternative forum for handling

A76

the Bhopal litigation.

6. I have been told that Judge Keenan also

expressed concern about due process in India

and that there was such concern by the

American Court of Appeals that it expressly

ruled that "(a)ny denial by the Indian

Courts of due process can be raised by

U.C.C, €0 the plaintifss* [33 } later

attempt to enforce a resulting judgment in

this (U.S.A.) country", and also stated that

"(b) asic justice dictates that both sides be

treated equally." I do hereby state, swear

and affirm that the concerns of the Court of

Appeals in the United States were well

founded and that a rank, egregious and

appalling failure of due process’. has

occurred in the Bhopal case in India.

a4 Failure of due process has occurred

through the triple conflict of interests on

the part of the Union of India (UOI). UVOI

Al?

Defendants. UOI also appoints and controls

the judges in India and those judges

determine the facts as well as the law and

therefore constitute the fact-finder in any

disputed case. In addition, UOI has had the

audacity to arrogate unto itself the right

to represent all the potential plaintiffs.

so, UOI is in the position of being

plaintiff, the defendant and the court.

8. I am also aware of the fact that the

Court of Appeals, in strengthening the

protections Judge Keenan had given the Union

Carbide defendants, expressly acknowledged

that a conflict exists where UOI represents

both the plaintiff and one of the co-

~A yy -

Nowak G

the

defendants,

UCC contends that

while providing

alternative forum,

due procedd [sic]

would be required

course in this

evidence of this apprehension,

the haste with which

in Bhopal

order

points to

the India court

a temporary

Stating:

Indian courts,

an adequate

do not observe

standards that

aS a matter of

country. As

issued

freezing its

litigation in India,

Situation is so bad that

not been able to get

treatment

A7l9

regard

assets throughout the world and

the possibility of seriou

prejudice to it if the UOI is

permitted to have the double and

conflicting Status of both

plaintiff and co-defendant in th

Indian court proceedings. 809

f.2d [sic] at 204

Again, I state, swear and affirm that the

very conflict that concerned the United

States Court of Appeals does in fact

blatantly exist with regard to the Bhopal

and, in fact, the

the plaintiffs have

a £esf -Erial, fair

to the Bhopal

litigation in India, a settlement has been

contrived by U.C.C. an UOI, the latter

acting as both plaintiff and defendant and

allegedly "approved" by the court that UOI

controls. All this has been done despite

the fact that the vast majority of the

victims oppose the settlement. I am

attaching as Exhibit A a few clippings which

demonstrate how the purported "settlement"

has generated vehement opposition from

victims, involved professionals and the

general public. Therefore, sa is

inconcievabble [sic] to me that plaintiffs

named in Bano Bi could in any way, in law,

Justice or equity, be bound by the

"settlement" engineered by UOI, acting as

plaintiff, defendant and the court.

10. In connection with the foregoing, I

herey [sic] state, swear and affirm that the

plaintiffs named in Bano Bi oppose the

A80

purported settlement reached by UOI and none

of said plaintiffs have received any

compensation out of any "settlement". or

[sic] personally executed any kind of

release in favor of any of the Union Caride

[sic] defendants. As far as all of the

plaintiffs in the Bano Bi case are

concerned, they have not settled their case

with Union Caride [{sic] defendants, they do

not intend to settle their case on the terms

of the alleged "settlement" and they intend

to pursue their causes of action in the

United States. In this connection, they

have employed Wayne Walker and other

American attorneys to pursue their cases in

the United States; they have agreed to pay

him a contingent fee and assinged [sic] to

him a portion of their cause of action

against UCC and the otner defendants. In

Sum the Bano Bi plaintiffs have never

A81

settled their case with the Union Carbide

defendants.

ll. I also state, swear and affirm that the

plaintiffs named in the Bano Bi case, have

not, so far as they know, ever authorized

UOI or anyone representing UOI to settle

their cases, on their behalf, with the Union

Carbide defendants. Therefore, the

settlement now relied upon by the Union

Carbide defendants in the American courts

must be considered to not have been

finalized by an "authorized representative"

of the Plaintiffs named in Bano Bi.

12. I also state, swear and affirm that the

Plaintiffs named in the Bano Bi case had no

notice of the purported settlement reacbhed

[sic.] by UOI, allegedly on their behalf and

were never given, at any time prior to the

alleged consummation of the settlement,

notice of the fact that, allegedly on thier

A82

[sic] behalf, UOI was attempting to

negotiate a settlement. Nor did they have

any notice of the terms upon which UOI was

allegedly attempting to negotiate the

settlement. Furthermore, the Bano Bi

plaintiffs were never given the opportunity

either individually or through their chosen

representatives, to participate in the

settlement negotiations. In addition, since

the alleged settlement was purportedly

reached, the Bano Bi plaintiffs have

received no formal notice of the same, have

been given no opportunity to appear before

the Indian court concerning thier [sic]

views on the settlement (I am not speaking

here of the Appeal now pending before the

Indian Supreme Court, whereby we seek to

knock out the entire settlement, but we are

talking about a proceeding similar to the

"fairness hearing process" required in

A8 3

aaa

American courts with respect to class action

settlements); and have not been given the

Opportunity to express their views to the

party who purports to represent’ them,

namely, the Union of India.

13. Therefore, I hereby state, Swear and

affirm that the Bano Bi Plaintiffs did not

have fair notice of the Indian action

brought allegedly on their behalf by the

Indian Government nor did they have. fair

notice of the settlement allegedly

negotiated on their behalf by UOI. Indeed,

the Indian Supreme Court, in a decision to

uphold the Bhopal Act, acknowledged that

victims had not been given adequate notice.

14. I further state, swear and affirm that

UOI did not adequately, fairly or properly

represent the Bhopal victims. This is true

for several reasons:

a. UOI did not give victims notice,

A84

consult with them, keep them informed or

allow them to participate in any way in the

Indian legal proceedings.

Ds Particularly, UOI did not give

victims notice of the settlement

negotiations. Terms were decided in the

Closed chambers of tthe Chief Justice;

victims and the general public were only

informed after finalization. Information

indicating the basis of the $470,000,000

settlement amount still has not been

disclosed; further, no distribution plan has

ever been presented.

C. UOI had a profound and shocking

conflict of interest all the way through the

litigation; UOI owned an interest in one of

the defendants, it controlled the courts and

also purported to represent the plaintiffs.

a. UOI did not vigorously prosecute

the action on behalf of the Plaintiffs but

A85

instead allowed continual delay and was

generaliy dilatory in its representation of

the Plaintiffs.

e. There are strong indications that

from the time UOI switched its position in

the American action, from seeking to have

the Bhopal case litigated in the United

States to having it litigated in India, it

began a course of collusion with its co-

defendant UCC and its subsidiaries, all to

the severe detriment of the victims,

including the Bano Bi Plaintiffs.

is The settlement that UOI allegedly

negotiated on behalf of the PlaintiffS is a

disgrace and grossly inadequate. When

compared to the total amount required for

rehabilitation, it shocks the conscience.

To date, more than 11,000 death claims have

been filed with full evidence that the

deaths were due to gas exposure. More than

A86

ccaccicetneaie eecead daieaniieaaeaaias ieee

4,000 other death claims are pending because

Survivors do not have medical documentation

required by the claims processing

authorities. The 1990 annual report of

Indian Council of Medical Research (ICMR)

records 508,000 injuries sustained by

Surviving gas victims. Please see Exhibit

B for a full survey of ICMR's reports

Showing the continued morbitity [sic] of gas

victims. As this article indicates,

rehabilitation costs will far exceed the

$470,000,000 amount; adequate health and

economic rehabilitation will require in

excess of 4 billion dollars.

g. Thus, for all the reasons stated

in a-f above, I hereby state, swear and

affirm that even in UOI was a legitimate

representative of the Bhopal gas victims

(which it could not have been due to the

conflicts of interests discussed above), it

A87

did not fairly or competently represent the

victims in the Indian proceedings. Further,

there was a failure of representation

regarding the American proceedings when UOI

Switched positions from one of supporting

U.S. jurisdiction to one opposing U.S.

jurisdiction.

15. In connection with the claim by the

Union Carbide Defendants regarding statute

of limitations in the United States, I

hereby state, swear and affirm as follows:

a. The suit filed in the United

States in December of 1984 contained class

action allegations and the federal court in

New York at no time prior to the final

dismissal of that case, acted upon or denied

the class action request. The dismissal of

the first action in the New York Federal

Court did not become final until October 5,

i987, when the United States Supreme Court

A88

denied petition for writ of certiorari.

Meanwhile, a class action was filed in the

state court in Beaumont, Texas in 1985 and

it remained pending until it was dismissed

in late 1988, with such dismissal becoming

final in early 1989. Again, the judge in

that case did not ever act upon the class

action request and no class action was ever

denied. I hereby state, swear and affirm

that the Plaintiffs in the Bano Bi case

relied upon the pendency of those class

action proceedings in not filing the Bano Bi

Suit before October 1990. The Bano Bi

Plaintiffs reasonably believed that they did

not have to file suit in the United States

while any of the class action suits were

pending and that they would have two years

after all class action suits had _ been

dismissed, in which to file in Texas. I

further state that the named Plaintiffs in

A89

the Bano Bi are substantially different from

the Plaintiffs named in the 1984 clas

—

action filed in New York.

lawyers, the Bhopal Act was adopted on March

29, 1985 and it contained some language to

the effect that UOI had the "exclusive right

to represent and act in place of every

@))

person who has made or is entitled to mak

a claim with respect to the Bhopal disaster.

UOI filed suit in the Bhopal District

on September 5, 1986. At that time, I

hereby state, swear and affirm that the

plaintiffs listed in the Bano Bi petition

not

reasonably believed that they could

their own in any other court. In addition,

as stated y [sic] the Defendants, the

Courts on February 15, 1989 ordered that

"{a)ny . «. . Suits, claims or civil ..

ry 09

following categories:

1) That he/she or they did not,

despite the exercise of due diligence and

reasonable care, discover his/her cause or

their cause of action or that their illness

Or injury caused by gas exposure become

manifest within two years of the filing of

the suit in October of 1990. In this

connection, Plaintiffs would show that the

Union Carbide people are still denying that

the Bhopal gases caused anything more than

minor symptoms of acute distress at the time

and during the immediate aftermath of the

gas leak on December 2-3, 1984. Thereafter,

plaintiffs erroneously but reasonably relied

upon such statements by UCC and government

officials indicating that the Plaintiffs did

not have a valid cause of action.

11) That the Defendants and UOI

presented to the Bano Bbi [sic] Plaintiffs,

A92

in various publications, and through other

official and non-official sources, that

victims did not have the right to sue in the

United States both because of the Bhopal Act

and because of various rulings or legal

doctrines in the American Courts.

Defendants and UOI further represented that

the Bhopal gases did not cause the kinds of

injuries and deaths which the Bano Bi

Plaintiffs experienced. The Defendants and

UOI represented that they would compensate

the Plaintiffs for their injuries on a

reasonable and fair basis. The Bano Bi

Plaintiffs relied upon all these

representations in.no filing suit in Texas

prior to October 1990. Therefore, we

believe the Defendants should be equitable

estopped from claiming that the statute of

limitations bars the Bano Bi suit.

111i) That the Defendants and UOI

A93

aia

fraudulently concealed from the Bano Bi

Plaintiffs the true facts about what the

Bhopal gases could cause on a long term

basis and what kind of medical problems

could crop up after substantial latency

periods. They also fraudulently concealed

the full nature of their collusion and their

apparent plan to lead the victims, including

the Bano Bi Plaintiffs, into believing that

they did not have rights except in the

Indian courts and that they could not

institute legal proceedings in the United

States; pursuant to that plan, they further

colluded to force upon the Plaintiffs a

grossly inadequate settlement and then used

such fraudulent settlement as a means of

barring legitimate proceedings in the United

States; part of this fraudulent concealment

included the concealment of the true nature

of the victims causes of action, as well as

AS4

the places where they could legitimately

bring thier [sic] action; Dy reason of all

the foregoing, the Bano Bi plaintiffs state

that the statute of limitations should be

tolled to within a short time of the filing

of this suit.

l6é. In summary, I want to comment on the

State of affairs in India today. During the

past year, the political-economic scene of

india nas become increasingly chaotic. This

Situation was clearly exacerbated by the

aSSaSination of Rajiv Gandhi and the

Subsequent instability of Parliament.

Further, the return to power of the Congress

Party has reestablished the very government

which contrived the alleged settlement on

behalf of Bhopal victims. For many years,

the Congress party has been regarded with

Suspicion due to rampant corruption and due

to their commitment to an economic policy

'<@)

which caters to the economic interests of

industrialists and other lites. This

Suspicion was given particular example after

Rajiv Gandhi's visit to the United States in

1986 and the subsequent switching of UOI

ats - c

position from Support ot

2 4

cand

All of this may have been made more

'?)

49)

“Bs

e8)

be .

‘ox

he political instability which

now prevails in India. When this Overlay of

instability and uncertainty is considered

with all of the delay, Stalling and

procedural inadequacies which have now been

shown to be the true situation of this case

in India, and considered with conflicts of

interest and the grossly inadequate

representation that UOI has given to the

Bhopal victims, and considered with all the

other reasons given by Professor Marc

Galanter as to why India is an inadequate

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September 1990 through June 199]. During

this time I worked directly with the leaders

and members of Bhopal Gas Peedit Mahila

Udyog Sangathan (Bhopal Gas Affected Working

Women's Union) (BGPMUS), the largest

victims" organization in Bhopal. I have

also worked with leaders Of Bhopal Group for

Information and Action (BGIA), an

Organization of educated volunteers who

serve as English language representatives of

BGPMUS. I also have had numerous

discussions with Indian legal experts,

political leaders, health Professionals, and

bureaucrats who have been involved in the

Bhopal case. I also have done archival

research to analyze documents and other

materials generated in the Sl1X years since

the disaster. The following statements are

derived from My research efforts. and

material:

A100

i REGARDING THE MOTION TO REMAND BASED ON

THE ISSUE OF IMPERSONAM JURISDICTION

A. Union Carbide Corporation (UCC) is the

alter ego of Union Carbide India Limited

(UCIL). The intimate connection between UCC

and UCIL was described by Business India in

thn nh Ad tS

Just how close the relationship between the

Cwo companies actually was can be seen from

the fact that four senior executives of

UCC'sS regional division, Union Carbide

Fastern (UCE), including its Chairman, were

members of UCIL's board of directors.

UCIL's budgets, major capital expenditures,

policy decisions and company reports had to

be approved by UCC corporate headquarters.

The Bhopal plant formed an integral part of

UCC'sS agricultural Products division (APD),

Al0l

and was directly under the control of the

director, APD, at the UCE headquarters in

Honk [Sic] Kong. The director, APD, in turn

occupied the position of executive vice

president at UCC. Thus the chain of command

stretched all the way from Bhopal _ to

corporate headquarters in Danbury,

Connecticut. (December 2-15, 1985)

Specifics connecting UCC to the Bhopal

Subsidiary are as follows:

Me 90.9% of UCIL stock was held by

a UCC approved a site choice for the

Bhopal plant which situated hazardous

production facilities adjacent to already

existing residential communities and barely

two kilometers from the main railway

station. The Bhopal plant fell out of

compliance with city ordinances when, in

1974, it began manufacturing rather than

Simply formulating pesticides. As the

twenty-first-largest company in India and

employer of over 10,000 people, UCIL was

sufficiently influential to override the

City's objections to their location through

approval from central and state government

authorities.

ys Tne decision to use and process

methyl isocyanate (MIC) in Bhopal was made

Dy UCC. From 1958 to 1973, the end product

sevin was manufactured without using MIC.

Carbide switched to MIC dependent method

when it became the cheaper alternative.

During the first years the Bhopal plant was

Operating, MIC was imported from the parent

company. The decision to build a MIC

Al03

processing unit in Bhopal was based on the

need to "backward integrate" so that raw

materials were produced on site, thus saving

transportation costs and exploiting

economies of scale. The context of the

decision to manufacture MIC domestically was

one of increasing competitiveness and

industry decline due to local agricultural

conditions.

; The process procedure used to

manufacture MIC in Bhopal was an _ open

Circuit process chosen, for economic

reasons, over the closed circuit process

used by Bayer Corporation. Carbide's open

Circuit process required bulk storage of MIC

and thus precipitated the storage management

problem which led to the disaster.

~P Design of the UCIL plant and

Al04

particularly the MIC unit was carried out

and approved by UCC. Significant plant

design features approved by UCC include the

following:

a. Regulatory and alarm

mechanisms at the Bhopal plant were manual

and dependent on human detection. At a

Sister plant in Institute, West Virginia,

control systems were automatic and computer

monitored.

Db. storage tanks in Bhopal held

40 tons of MIC while Institute had smal]

drum storage. An affidavit on the dec

WY)

—

to bulk store was filed in the Federal

District Court in Manhattan by Edward Munoz,

a retired Vice President of UCC and Managing

Director of UCIL during the design of the

Bhopal MIC unit. Munoz states that UCIL

personel [sic] preferred a design plan for

nominal storage based solely on downstream

process requirements. UCC insisted on

large-scale storage.

C. The refrigeration unit was

too small (30tn) to help control a runaway

reaction. Further, a water based brine

solution was used as a coolant whereas in

Institute a more expensive chloroform

cooling system was used. The brine solution

could have been a source of water

contamination of storage tank contents.

a. In Bhopal, there was no means

for continuous check of the purity of MIC.

In case of failure in the final refining

process, off-grade MIC would be mixed with

previously stored material, introducing

large scale contamination and danger. In

A106

Institute, interim tanks were provided

between the refining system and the storage

tank so that newly produced MIC could be

checked for purity.

e. The storage tank was

pressurized through copper tubing, making it

possible for copper filings to be mixed with

MIC. Union Carbide information on MIC

itself states that copper can cause a

dangerously rapid trimerisation, generating

sufficient heat to cause a reaction of

explosive violence.

- Vent gas headers were made of

carbon steel. In the absence of check

valves, back pressure inside the header

would push material back into the storage

tank, possibly carrying with it rusted

coating from the vent header walls. Carbon

Al0Q?

Causes a Catalytic reaction when in contact

with MIC.

g. A jumper line modification

was made in May 1984 to provide a Standby in

the event that either the relief valve vent

header or the process vent header needed to

be shut down for repair. According to the

Indian Central Bureau of Investigation

inquiry into the disaster, approval for this

design modification was given by UCC. The

jumper line connected the relief-valve vent

header to the process-vent header, allowing

water ingress into the MIC Storage tank.

MIC in reaction with water set off the

exothermic process which led to the pressure

build up and release of gas into the

atmosphere of Bhopal.

h. The vent gas _ scrubber,

A108

intended to neutralize leaks with a Caustic

soda solution, was built to handle a maximum

pressure of 15psi. The rupture disk

channeling gas into the scrubber was set to

release at 40psi. Thus, even in

Circumstances of controlled flow, the

scrubber could only accommodate 38% of the

gas moving through it.

is The flare tower, though

purportedly part of the MIC safety system,

was only designed for slow, Steady burn off

Of carbon monoxide during phosgene (a

component of MIC) production.

Ty The water sprinkling system

could not spray high enough to reach the

gas. When the company fire truck arrived on

the scene, it, too, was unable to Spray

water the 120 feet to the top of the vent

Al0g

gas scrubber, where the gas was gushing out.

6. Maintenance of the UCIL facility

was overseen by UCC. This was demonstrated

by periodic safety checks by UCC personnel.

On at least three occasions, UCC safety

auditors recommended the formulation of an

evacuation plan for the residential

communities adjacent to the plant. UCC was

aware these recommendations were never

Carried out.

Ie Quality and quantity of plant

personnel was overseen by UCC. Worker

manuals were produced in the United States

and distributed in English. Senior plant

personnel were given training at a sister

fr)

plant in Institute, West Virginia; 80%

these workers left UCIL in the four years

preceding the disaster due to low morale

A110

partially caused by awareness that the

Bhopal plant tolerated negligence and lack

of safety consciousness. The plant's 1982

operational safety survey documented regular

breaches of basic safety rules and warned of

the problems which could accompany staff

“

ease see Appendix 1 for

b--

reductions. P

graphs showing staff reductions.

Conneticut [sic] and then by hiring Burson

Marstellar, one of the largest public

relations firms in the world.

9. UCC managed "Operation

effort to safely neutralize the MIC

remaining in storage tanks after the major

—

leak on 2/3 December.

Indian litigation of the Bhopal case; UCC

was the party which negotiated and accepted

the February '89 settlement; UCC provided

B Union Carbide India Limited (UCIL) 1s

present in Texas through their relationship

with Humphreys and Glascow, a Bombay

engineering firm domiciled in Texas under

the name of Ensearch [sic]. rom the period

1972 to 1980, UCIL supervised 55 to 60

engineers employed by Humphreys and Glascow

in detailing Summary constructions plans

provided by UCC.

b-4

= ~ : :

ke ,_Sa Yer c ~ - An + nmIian > nr RK coc

ar Bisetarc patil, a AE LEeNCait in eg ee

Qn > ASN TY) ‘a ory Yr o ~ roaqnnn an eat «

~-aS@ aomicidl 3 6 eS £CAGS, 15 LesponsSidle ror

Mant ~ + +} 1 c - lor ; <a - = = ~ pa

llldally UL = S acoaU Be Ne ah de > vv a Waa HE, wa & I Re,

+ C | Py ar |

nO ~ lan) emec rer o ror

the 1984 gas leak. Ensearc Sic] was hired

to adapt UCC's "process design package" to

the context of the Bhopal FACLILity.

Ensearch [sic] was involved in the decisions

WwW et | a ene > ae) ‘ate es Salk a ate ™ ae

Wild Uil LEG he LJ qgesi1g i ana SCOnStLUCtIiONn mucn

Fo . nr +h cal +h TTlr ‘ate Narr a

iGoo Ssaie n i Chat iil Gire SPeP SO) G! al vide

mmm mm Ae mrmrm Crrnyro marTm IORNMTNTAMOr Tk THE

EEFECT Q lHE SETTLEMENT YEGOLLATED IN rik

A. Since 1985, it has become clear that

India cannot provide an alternative adequate

forum. The February '89 settlement

preempted a trial on the merits of the case

and came about through numerous failures of

due process:

is On March 29, 1985, the Indian

Parliament enacted the Bhopal Gas Leak

Disaster (Processing of Claims) Act,

granting Union of India (UOI) the exclusive

right to represent the victims in India or

elsewhere. Thereafter, UOI has represented

the Bhopal victims in the capacity of parens

patriae. The Bhopal Act itself is a breach

of due process because it involves conflicts

of interest: while representing the victims,

UOI also owns a substantial portion (22%) of

UCIL stock and controls the courts, since

judges are appointed and there are no

juries. Thus, in the Indian proceedings,

UOI has been plaintiff, defendant and the

Court.

All14

—

The overlapping responsibilities of UOI

has precluded the possibility of an

impartial tribunal. This structural problem

1S magnified by the current political-

economic environment in India. Since the

early eighties, the orientation of Indian

development has changed. In the decades

following Indian independence in 1947, there

aS an overt attempt to maintain self-

sufficiency through minimalized dependence

on foreign investment and technology

transfer. This agenda did not provide

adequate growth to keep up with the demands

of a growing welfare state and increasing

national indebtedness. Hence, policy

changes in the eighties redirected the

economy toward greater utilization of

Outside resources.

The current dependence of the Indian

Al15

economy on foreign investment has undermined

the capacity of the Indian State to fairly

evaluate. the distribution of risks and

benefit which accrue through industrial

attract foreign investment, the Indian

oo £m ~ ]

government 1s forced to let market

considerations override all other concerns.

mn y

£aus, lt 4 3 LMmp ISS1Dl1eE [ ne the LtiGiat)

. + + ; tie a

governmen -O Talrily adjudicate the claims

latha + } e TI CT 1zed Ky * “rr rat} r

i? ie Chose S es wet Ges oe a & DY COT VOT atio

ee? oe - : no ll oe ai hs T os

Tuifiiiilng investment demands. It is

> 4 Tr

j ice

pudilCiy recognized in India that a harsh

| + = + ae

decision against Carbide woul be a

deterrent to economic goals. The problem of

Nhird World governments being caught in a

double-bind wherein they promote their

cha te

Ya There has been a failure )

representation on the part of UOI as parens

~~ _ + ~ + es a ee m , 0 - o

patriae of the gas victims. This failure is

indicated by the paucity of research Carried

Out before arriving at a settlement amount.

At the time of the settlement, fewe

50,000 victims had been assessed for

personal injury. The results of this

Initial assessment were not made public

r r

IM 4 TA ox } 1Q2 — MAnMrKha = t -

Bde kd Ao LL NB 8 ce Be _WO MOnNtCNS alter oe Gt

eal -~ . * _- x

The great MajOrity of victims contest

the adequacy of the settlement because lt is

: er a _" = re pe “ " : ii aie

insufficient to cover >ompensation = and

persons have filed for damages based on

physical proximity to the plant. Medical

monitoring of the health status of these

Claimants alone would cost in excess of

$6,000,000. Conservative estimates for full

compensation range between one and_ two

billion dollars. Please see Appendix 2 for

details. Further, according to the terms of

the settlement, the Indian government has

first access to reimburse itself for

litigation costs, interim relief payments

and general economic loss. Government

reimbursement alone could easily consume

much of the settlement leaving little for

+ bh ; > \ + snr Cyst ys Ye ar o : ie ~e 5 o

Che present ana Tuture ClaimS Of v1ict1ms.

Ta] + hh Tnrni : : + }

Within India, it is not possible to

correct the settlement's inadequacies

because of UOI's involvement in denial of

the magnitude of the disaster. Medical

categorization data produced by the Madhya

Pradesh State Government and released in

1991 indicates that out of a gas affected

population of over half a million people,

: '

~ x + > . ers 945 o - ~ . + 17

only forty individuals are permanently

generated disbelief and outra

la An 7} ~ 7, ee oO fond + + 1 3 -+on rrK

meagicai community. VOCtOrsS affiliated with

OF sclientifric meanS for political ends.

[They critique the testing protocol for being

insufficiently thorough and for Dlatantly

lgnoring long term and mult ystemic

ailments. Please see Appendix 3. for

elaboration on problems with medical

categorization data now available in India.

Attempts to produce alternative medica]

jocumentation through the voluntary sector

interested health professionals Hence, the

researcn basis for representation of aas

victims in India is unavailable.

cs Victims were given no notice of

the settlement prior to it being finalized

and publicly announced. Such notice was

Clearly possible through public’ news

releases or through mailings to victims

included on a computerized list used for

registering claims. Notice also could have

been given through any of the victims

Organizations in Bhopal. The Supreme Court

of India itself recognized this failure of

due process during its review of the Bhopal

Act. While the Supreme Court upheld the

validity of the Bhopal Act, it conceded that

victims were not given notice.

Former Chief Justice of the Indian

Supreme Court P. N. Bhagwati has critiqued

the settlement decision for the following

A120

reasons:

a. The sete]

ment order emerged

from appeal] arguments and not from

proceedings directed toward final judgment.

In disposing of the compensation case,

Bhagwati argues that the Indian judiciary

overstepped accepted principles of

jurisprudence.

B. The settlement amount of

9470,000,0°0 was not based on knowledge of

rehabilitation costs and "places the value

Of Indian life at a ridiculously low

c. Settlement offers and counter-

offers were not made in open court but in

the Chamber of the Chief Justice. In

alling to consult or even notify victims,

Bhagwati argues ~hat "the Government forgot

that it was not rosecuting a case of its

Own but was é-ting as a trustee."

(IndiaToday March 1:, 1989)

4. The 1989 set=lement order did not

contain a distribution plan. Such a plan

Still has not been publi-:ized. Thus, it is

not known how much will be allocated to each

individual, particularl: Since the

Government has first optic: to reimburse

itself for expenses. surther, the

settlement order did not give attention to

future claims.

“ Victims have never been given the

Opportunity to opt out of the February '89

settlement or of the litigation all

together. However, sustained protest by

victims has clearly indicated Opposition.

In a major demonstration protesting the

settlement in August 1989, police brutally

attacked demonstration participants. This

attack is publicly recognized in India as a

Show of the government's refusal to attend

to victims' demands. See Appendix 4 for

documentation on victim Protest against the

settlement.

eS a REGARDING THE ISSUE OF RES JUDICATA

PER PREVIOUS DISMISSAL ON GROUNDS OF FORUM

NON CONVENIENS

A. The present case (Bano Bl, etc.) is a

Substantially different case from that

dismissed from the Federal Court of New York

in 1986 on grounds of forum nonconveniens

[sic]:

i The parties listed in the present

Al23

case do not know themselves to be listed as

plaintiffs in the previous case. The

defense's contention that the names listed

in this case duplicate those listed in the

1986 proceedings is perhaps grounded on a

lack of understanding of Indian culture and

language. Indian names are extraordinarily

repetitive because specificity is designated

by attaching names of extended family

members. Further confusion arises from the

transliteration of Indian names from Hindi

Script into the roman alphabet.

és The parties listed as plaintiffs

in this case all have new causes of action.

These plaintiffs were selected to fill the

following categories: minor children born

with birth effects [sic] as a result of

their parents exposure, minor children

exposed to the gas, survivors of persons who

Al24

have died in the last two years, adults who

manifested major injury in the last two

years, women who have suffered miscarriages

Or still birth in the last two years.

ce The progress of the case thus far

in India has verified that India does not

provide an adequate alternative forum.

Please refer to Section II, where failures

in due process are discussed.

Further, it is clear that Professor

Marc Galanter's analysis of the Indian legal

System was correct in suggesting that there

are structural inadequacies which make due

Process according to American law almost

impossible in Indian courts. These

inadequacies include both procedural and

Substantive aspects:

Al25

a. Tort law is not sufficiently

developed to deal with highly technical

concerns.

b. There are no juries and the

courtS are not independent of other

governing bodies.

Cc. There is only limited

discovery and little infrastructure within

legal practice to carry out research.

a; There is not an effective

means to circumvent long delays.

Last, it is clear that India has not

and cannot provide an adequate alternative

forum to the US courts because of UOI's

commitment to an economic policy dependent

on foreign investment. Please see Section

Al26

II.l1 for elaboration. A specific and

Substantive build-up in India's investment

dependent agenda occurred this year with the

acceptance of an IMF loan. IMF lending

comes with austerity requirements’ that

forcibly compels the creation of attractive

Markets. Social science literature Clearly

documents the decline of neutral

Jurisprudence in Third World contexts shaped

by external debt obligations.

4. As of this date, there is more

evidence that in 1985 to indicate that

private interest factors regarding location

of witnesses, of major papers, etc. compel

the case being handled in the United States.

Please refer to Section I for a listing of

UCC's involvement in the crucial decisions

which led to the disaster.

Al27

Further, it is clear that medical

categorization data from which a

compensation amount could be derived will

have to be generated from sources other than

those now relied on in India. UOI's

categorization data is blatantly

unscientific and insufficiently thorough to

provide the basis for computing past and

expected costs.

an Contrary to the previous case, the

plaintiffs for Bano Bi, etc. stipulate that

they will only use American experts on

liability, that the plaintiffs will present

themselves in the United States for

depositions and for examination by

defendant's chosen doctors and that they

will pay costs for the defense counsel to go

to India to take relevant depositions.

A128

REGARDING THE MOTION FOR’ SUMMARY

JUDGMENT BASED ON STATUTES OF LIMITATION

a. Statutes of limitation should not bar

this case for the following reasons:

i All representatives for this case

either discovered their cause of action or

their cause of action arose within the last

two years. Please refer to Section III.2

for details.

ra Since the occurrence of the Bhopal

disaster in December 1984, there has not

been any period of two years in which some

form of representative litigation was not

underway. Thus, victims assumed that their

interests were being continually

represented. This assumption was furthered

by the victims knowledge that UOI was

A129

representing their interests according to

the terms of the Bhopal Act. Until the

February 1989 settlement, gas victims had

reason to believe that UOI was adequately

representing their interests. It was also

known that Judge Keenan's 1985 dismissal

included a proviso which tolled statutes in

the United States until “the case was

finalized in India. The case remains under

review by the Indian Supreme Court.

k Up through the time of the

February 1989 settlement, UCC in concert

with UOI has led the plaintiffs to believe

that they would take care of damages through

provision of compensation, public health

Care, jobs suited to those with disability

and housing. Plaintiffs were thus equitable

estopped from initiating alternative

litigation.

4. Until January 1990, the survey

data produced by the Indian Council of

Medical Research was held under the confines

of the Official Secrets Act. Also held were

individual medical folders showing the

results of examinations and laboratory

testing. It can thus be said that until

January 1990, victims did not discover the

extent of their current injury. Since UCC

has never admitted medical Causation,

victims are continually told that their

various ailments are not gas related. An

example of this is the extraordinary

occurrence of tuberculosis in Bhopal. While

it is likely that this is related to

pulmonary and immune system damage caused by

gaS exposure, tuberculosis patients are not

recorded as MIC patients.

as Thorough research documenting the

Al31

long term effects of MIC exposure has been

concealed from victims. Victims thus do not

know if their health condition will continue

to deteriorate. Academic medical literature

has shown that methyl isocyanate causes

chromosomal aberration and thus could lead

to extraordinary rates of cancer. Healt

care now available in Bhopal does no

—

include monitoring which could document the

onset of long term effects.

Evaluation of the Bhopal phenomena has

indicated three major points of particular

relevance to this litigation:

1) UCC played a controling [sic] role in

all UCIL functions. Plant design features

which precipitated the disaster were put

ee)

+ = |

forth and finally approved by the parent

company. Other Significant factors,

including site location and personel [sic]

reductions, were also approved by UCC.

2) The medical categorization data

generated by the Madhya Pradesh State

Government is grossly unscientific and

unacceptable as a basis for rehabilitation

efforts. Controversies over this data has

revealed UOI's role in denying the magnitude

of compensation requirements both to veil

thier [sic] own culpability and to protect

broad economic development agendas requiring

foreign investment. It has thus become

clear that Indian courts, as an arm of UOI,

cannot provide an adequate form [sic] to

adjudicate the Bhopal case. Conflicts of

interest are further complicated by UOI's

role as parens patriae representative of the

oe)

victims.

3) The settlement amount of $470,000,000

determined in -the Indian proceedings be

Clearly insufficient to compensate and

rehabilitate over half a million Bhopal

victims. Conservative estimates have costed

rehabilitation needs in the range of 2

billion dollars. The "full and final"

clause of the settlement is of particular

concern due to continued health

deterioration and the liklihood [sic] of

long term effects.

SIGNED THIS, the 14the [sic] day of August,

1991

Ss /

Kim Laughlin

SWORN TO AND SUBSCRIBED before me, the

undersigned authority, on this, the 14th day

of August, 1991.

Notary Public, State of Texas SEAL

ANGELICA JIMENEZ

MY COMMISSION EXPIRES

JUNE 27, 1995

A134

APPENDIX J

BEFORE ME, the undersigned authority,

holding the position commensurate with the

position of Notary Public in the United

States, appeared KIM LAUGHLIN, known to me

and after first being sworn, did upon her

oath, state swear and affirm as follows:

My name is Kim Laughlin. I am an

American citizen; my permanent address is 8

Shadow Lane Houston, Texas 77080. I am in

India conducting research sponsored by Rice

University. My address while in India is

c/o EkKlavya, E-1/208 Arera Colony, Bhopal

462016. I am 27 years old, of sound mind

and make this sworn statement based on

personal knowledge:

The news articles attached are

genuine and are presented to the

court to demonstrate gas victim

dissent against the terms of the

Al35

recent judgement from the Supreme

Court of India regarding the

February ‘89 settlement between

Union Carbide Corporation and the

Government of India. Most

Significantly, the victims

contest the following:

1) The courts have failed

to acknowledge the denial of due

process involved in failing to

obtain victim consent to the

terms of the settlement.

2) There has been a failure

of representation by the

Government of India in arriving

at the $470,000,000 settlement

amount without substantive basis.

3) A clear distribution

plan still has not been made

A136

WORN

UNDERS

avall

nrayredad Wey +

aa LA 4 » A A r

+a + DO 7r3O rnnr

St Iw VCS G iil

y ‘ y : y

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cot Ai ad zt AT Il

Var S (10) ener

j JU

VN 4 4 /

b he 1 ry STY) t

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ake up n

mr A KTT

aV/

TCRIDOT

IGNED

UV)

“mAtroarn rf

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Notary

Pradesh,

Public

Union

for the

of India

State

APPENDIX K

THE BHOPAL GAS LEAK DISASTER

(PROCESSING OF CLAIMS) ACT, 1985

(ACT 21 OF 1985)

(AS PASSED BY THE HOUSES OF PARLIAMENT --

RAJYA SABHA ON 18TH MARCH, 1985

LOK SABHA ON 27TH MARCH, 1985)

ASSENTED TO

on 29 MAR 1985

Act No. 21 of 1985

Al39

Bill No. V-F of 1985

THE BHOPAL GAS LEAK DISASTER (PROCESSING

OF CLAIMS) BILL, 1985

(As Passed by the Houses of Parliament)

BILL

to confer certain powers on the Central

Government to secure that claims arising out

of, or connected with, the Bhopal gas leak

disaster are dealt with speedily,

effectively, equitably and to the best

advantage of the claimants and for matters

incidental thereto.

Be it enacted by Parliament in the

Thirty-sixth Year of the Republic of India

as follows:-- |

Short title and commencement.

Foe ee This Act may be called the

Bhopal Gas Leak Disaster (Processing of

Claims) Act, 1985

Definitions.

(2) It shall be deemed to have come

into force on the 29th day of February,

1985.

ae In this Act, unless the context

otherwise requires, --

(a) “Bhopal gas leak disaster" or

"disaster" means the occurrence on the 2nd

and 3rd days of December, 1984, which

involved the release of highly noxious and

abnormally dangerous gas from a plant in

Bhopal (being a plant of the Union Carbide

India Limited, a subsidiary of the Union

Carbide Corporation, U.S.A.) and which

resulted in loss of life and damage to

property on an extensive scale;

(b) "Clain*

means--

connected

0) vy)

Q4 ed

’ by

uy O

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- Q

c Y)

oO ae)

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O lo.

Qa ()

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a) A

m +

40)

fE ~

oO MY

— is

O 4

oS =

= <

4 me

W”) n

c 1)

yo W

Q, QQ,

O ky

6) O

WY)

—

uding

& bbe &

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4 )

n VY

n v

) ~

C ,

4 O

” O

Q bY

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WY)

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O ‘o)

_— ~|

40) W—)

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* 40)

= co

| at

ree! =

hie

: :

C O

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GC =

a0) wv

()

QQ,

a0)

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4 */.

G =

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r4 4

a0) O

6) rae}

<0)

()

‘@)

‘

(e) "person" includes the

Government;

(f) "Scheme" means a Scheme

framed under section 9.

Explanation--For the purposes of

Clauses (b) and ({c), where the death of a

person has taken place as a result of the

disaster, the claim for compensation or

damages for the death of such person shall

be for the benefit of the spouse, children

(including a child in the womb) and other

heirs of the deceased and they shall be

deemed to be the claimants in respect

thereof.

Power of Central Government to represent

claimants.

3. (1) Subject to the other provisions

of this Act, the Central Government shall,

and shall have the exclusive right to,

represent, and act in place of (whether

Al43

within or outside India) every person who

has made, or is entitled to make, a claim

for all purposes connected with such claim

in the same manner and to the same effect as

such person.

(2) In particular and without

prejudice to the generality of the

provisions of sub-section (1), the purposes

referred to therein include--

(a) institution of any suit or

other proceeding in or before any court or

other authority (whether within or outside

India) or withdrawal of any such suit or

other proceeding, and

(ob) entering into a compromise.

(3) The provisions of sub-section

(1) shall apply also in relation to claims

in respect of which suits or _ other

proceedings have been instituted in or

before any court or other authority (whether

within or outside India) before the

commencement of this Act:

Provided that in the case of any such

Suit or other proceeding with respect to any

Claim pending immediately before the

commencement of this Act in or before any

court or other authority outside India, the

Central Government shall represent, and act

in place of, or along with, such Claimant,

Such court or other authority so permits.

Claimant's right to be represented by a

legal practitioner.

4. Notwithstanding anything contained

in section 3, in representing, and acting in

place of, any person in relation to any

Claim, the Central Government shall have due

regard to any matters which such person may

require to be urged with respect to his

Claim and shall, if such person so desires,

permit at the expense of such person, a

legal practitioner of his choice to be

associated in the conduct of any suit or

other proceeding relating to his claim.

Power of the Central Government.

> (1) For the purpose of discharging

its functions under this Act, the Central

Government shall have the powers of a civil

court while trying a suit under the Code of

Civil Procedure, 1908 in respect of the

following matters, namely:--

(a) Summoning and enforcing the

attendance of any person from any part of

India and examining him on oath;

(D) requiring the discovery and

production of any document;

(Cc) recelving evidence on

affidavits;

(d) requisitioning any public

record or copy thereof from any court or

office;

(e) 1ssuing commissions for the

examination of witnesses or documents;

(f) any other matter which the

Central Government may, by notification in

tne Official Gazette, specify.

(2) Every notification made under

Clause (f) of sub-section (1) shall be laid,

aS soon aS may be after it is made, before

before the expiry of the session immediately

following the session Or the successive

sessions aforesaid, both Houses agree in

making shy modification in the notification

Or both Houses agree that the notification

Should not be made, the notification shall

thereafter have effect only in such modified

form or be of no effect, as the case may be;

so, however, that any such modification or

annulment shall be without prejudice to the

validity of anything previously done under

that notification.

Commissioner and other officers and

employees.

6. (1) For the purpose of assisting it

in discharging its functions under this Act,

the Central Government may appoint = an

officer, to be known as the Commissioner for

the welfare of the victims of the Bhopal gas

leak disaster, and such other officers and

employees to assist him as that Government

may deem fit.

(2) The Commissioner’ shall

discharge such functions as may be assigned

to him by the Scheme.

(3) The Commissioner and such of

the officers subordinate to him as may be

authorised by the Central Government by

A148

notification in the Official Gazette in this

behalf may, for the discharge of their

functions under the Scheme, exercise all or

any of the powers which the Central

Government may exercise under section 5.

(4) All officers and authorities

of the Government shal] act in aid of the

Commissioner.

Power to delegate.

we The Central Government may, by

notification in the Official Gazette,

delegate, Subject to such conditions and

limitations as may be specified in the

notification, all or any of its powers under

this Act (excepting the power under section

9 to frame a Scheme) to the Government of

Madhya Pradesh or an officer of the Centra]

Government not below the rank of a Joint

Secretary to that Government or an officer

of the Government of Madhya Pradesh not

Al49

below the rank of a Secretary to that

Government.

Limitation.

o. (1) In computing, under the

Limitation Act, 1963 or any other law for

the time being in force, the period of

limitation for the purpose of instituting a

Suit or other proceeding for the enforcement

of a claim, any period after the date on

‘which such claim is registered under, and in

accordance with, the provisions of the

Scheme shall be excluded.

(2) Nothing in sub-section (1) shall

apply to any proceedings by way of appeal.

Power to frame a Scheme.

9. (1) The Central Government shall,

for carrying into effect the purposes of

this Act, frame by notification in the

Official Gazette a Scheme as soon as may be

after the commencement of this Act.

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(2) In particular and without

prejudice to the generality of the

provisions of sub-section (1), a Scheme may

provide for all or any of the following

matters, namely:--

(a) the registration of the claims

under the Scheme and all matters connected

with such registration;

(b) the processing of the claims

for securing their enforcement and Matters

connected therewith;

registers in respect of the claims;

(d) the creation of a fund for

meeting expenses in connection with the

administration of the Scheme and of the

provisions of this Act;

(e) the amounts which the Central

Government may, after due appropriation made

by Parliament by law in that behalf, credit

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to the fund referred to in clause (d) and

any other amounts which may be credited to

such fund;

(f) the utilisation, by way of

disbursal (including apportionment) or

Otherwise, of any amounts’ received in

satisfaction of the claims;

(g) the officer (being a judicial

officer of a rank not lower than that of a

District Judge) who may make such disbursal

Or apportionment in the event of a dispute;

(h) the maintenance and audit of

accounts with respect to the amounts

referred to in clauses (e) and (f);

(1) the functions of the

Commissioner and other officers and

employees appointed under section 6.

(3) Every Scheme framed under sub-

section (1) shall be laid, as soon as may be

after it is framed, before each House of

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Parliament, while it is in session, for a

total period of thirty days which may be

comprised in one session or in two or more

Successive sessions, and if, before the

expiry of the session immediately following

the session or the Successive sessions

aforesaid, both Houses agree in making any

modification in the Scheme or both Houses

agree that the Scheme should not be framed,

the Scheme shall thereafter have effect only

in such modified form or be of no effect, as

the case may be; SO, however, that any such

modification or annulment Shall be without

prejudice to the validity of anything

Previously done under that Scheme. |

Removal of doubts.

10. For the removal of doubts, it is

hereby declared that--

(a) any sums Paid by the

Government to a claimant Otherwise than by

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way of disbursal of the compensation or

damages received as a result of the

adjudication or settlement of his claim by

a court or other authority, shall be deemed

to be without prejudice to the adjudication

Or settlement by such court or other

authority of his claim to receive

compensation or damages in satisfaction of

his claim and shall not be taken into

account by such court or other authority in

determining the amount of compensation or

damages to which he may be entitled in

satisfaction of his claim;

(b) in disbursing under the Scheme

the amount received by way of compensation

Or damages in satisfaction of a claim as a

result of the adjudication or settlement of

the claim by a court or other authority,

deduction shall be made from such amount of

the sums, if any, paid to the claimant by

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the Government before the disbursal of such

amount.

Overriding effect.

11. The provisions of this Act and of

any Scheme framed thereunder shall have

effect notwithstanding anything inconsistent

therewith contained in any enactment other

than this Act or any instrument having

effect by virtue of any enactment other than

this Act.

Repeal and saving.

(1) The Bhopal Gas Leak Disaster

(Processing of Claims) Ordinance, 1965, is

hereby repealed.

(2) Notwithstanding such repeal,

anything done or any action taken under the

Said Ordinance shall be deemed to have been

done or taken under the corresponding

provisions of this Act.

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BILL

to confer certain powers on the Central

Government to secure that claims

arising out of, or connected with, the

Bhopal gas leak disaster are dealt with

speedily, effectively, equitably and to

the best advantage of the claimants and

for matters incidental thereto.

(As passed by the Houses of Parliament)

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.