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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 862

## Text

t
No.

eennnnnnnnnnnnnnnnnnnnnnennanenes sanantadtheeA 1993

In The Supreme Court of the United Statés LER

oe

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 ¢ C)
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~ ) ~ : 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
4 As al
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

r

[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

A6

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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.

AY

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

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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)
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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)

rd

defendants and the Union o India.

All

forum

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non

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Bhopal disaster sh

have

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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
a

; - 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
~ —— —————
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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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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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UNION CARBIDE CHEMICALS AND PLASTICS :
COMPANY, INC. formerly called Union
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Carbide

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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

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removing these actions from the active

docket of the Court, it 1S,

9

a

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

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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,

a

UNION CARBIDE CHEMICALS AND
PLASTICS COMPANY, INC., ET AL.,
Defendants-Appellants.

ABDUL WAHID, ET AL.,
Plaintiffs-Appellants,

V.
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

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remand his

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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

4,

rh

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

ct
—
4)
@

Indian Governmen slusive representation

O
Hh
ee)
-
--
-
‘@)
cT
7)
3
9)
=)
Pa
~
c
WY
Y)

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

a

r

a
~

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)
7)

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

President is chosen for a five-year term by

A39

eR

ha
WillVU

T -
=)

, ao
~

rr

y=
Oe oe Se & aes

MW

members of

The

T\
ASaY

“by — VY) ”) ” es > O 4H aD) "Sr hy id Ga 8) SS O
= ra | U 4 ae +4 rt 1 VY fr) r
e : db v C CO ie & ; . / J a, py pov a ct ~ SY ~,
; { p ; ; Bw. ) .
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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
t
+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

f
O
Ht
ct
J

s
ny
Q
ee
b

By
Cc
Q.
ay)
be
ye

the future.

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ct
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‘=

not relevant to our determination

whether, under our constitutiona]

WY
ct
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J
(
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ry
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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 D

1ans

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ua

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and as

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3 D 4
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r r .
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Tn + AN rm + — tho ~My + m+ +1T + ha . +a
a 1eTenaant did ii ~ OL 2 ALLL ail eh state

Ga -
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= E- O Ae Q 2 r= re" ¢ O cH “wy
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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

4
ey
ct
7
62

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

Lv

e

als

=

¢
diversity

the

—id

does

on

bide also
sdicti

a .
+

_
Udi

i

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4 ool 6c oa eo ag So
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4
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‘72
1)

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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Bldg.

Jacint
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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.
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mm AT c
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DOM rMTA, CAL REMOUAT
J oo ~
OY
+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.

a/
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.

s/
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

NO

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.

/s

SWORN TO AND SUBSCRIBED before me, the
undersigned authority, on this the 25th day

of September, 1991.

s/

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

rh

was not anywhere close to being tried. I

Wo
}
J

the phrase ustice delayed is justice
denied" ever had any meaning, it has had
meaning with respect to the Bhopal
litigation in India.

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APPENDIX I

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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

be
WY)
—
ry
.-
~
a

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)
i)

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

DP
—
—
re

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.

D>
b-4
a
NO

= ~ : :
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 «
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Mant ~ + +} 1 c - lor ; vv a Waa HE, wa & I Re,

P

+ C | Py ar |
nO ~ lan) emec rer o ror
the 1984 gas leak. Ensearc Sic] was hired

mn

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

a

—

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

4

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

a

cha te

Oy

rh

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

Hy
-
ey
©

50,000 victims had been assessed for

personal injury. The results of this

9

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
t

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]

a)

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

rh

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

»
>

ct

care now available in Bhopal does no

—

include monitoring which could document the
be

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)
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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

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|
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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.

s/
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

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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)
A
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

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(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.

A150

(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;

(c) the maintenance of records and
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

Al51

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

A152

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

A153

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

A154

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.

A155

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)

A156

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1138%3A2. Public record. Not legal advice.