The total request was in excess of $1 billion. The Curative Petition also named The Dow
Chemical Company (TDCC) as a respondent. Subsequently, the Madhya Pradesh State
Government (MPSG) sought to intervene, as did certain interest groups who also filed
an application alleging additional purported grounds for enhancing the settlement
and stating that the additional payment should be $8.1 billion.
UCC responded to these submissions in November 2011, demonstrating that they were
legally and factually without merit; asserting that the Indian courts lacked
jurisdiction over UCC; and stating that the Curative Petition is legally improper
because:
At most, if the GOI had been successful with its Curative Petition, it would merely have been
able to undo the judgment it claims was wrong. Undoing the judgment would have meant that
GOI would have had to pay back the settlement amounts to UCC and UCIL (with interest),
the settlement would have been unwound, and the GOI would have had to proceed with the lawsuit
it filed for compensation for victims. It would have had to prove wrongdoing on the part
of Union Carbide and UCIL, and would have had to submit proof of individual damages for
all claimants. Of course, to require UCC to defend itself against such a case more
than 39 years after the events at issue occurred would have violated its due process
rights.
From Jan. 10-12, 2023, the Supreme Court of India held three days of hearings on the Curative
Petition. On the final day, the Court dismissed a Transfer Petition submitted by the Government of
India and, subsequently, completely dismissed the Curative Petition on March 14, 2023.
1. What did the Curative Petition filed by the Government of India mean?
A. By filing a Curative Petition to reopen the settlement of the Bhopal gas
disaster, the GOI had, in effect, reneged on an agreement it negotiated and
signed with UCC and UCIL in 1989. The settlement had been reviewed and approved by
the highest court in the country, and all parties should be able to rely upon it
as a final disposition of potential liabilities related to that event. It is
difficult to see how attempts could be made to reopen such a thoroughly reviewed
settlement.
The 1984 gas leak in Bhopal was a terrible tragedy that continues to evoke
strong emotions even 39 years later. But allowing these emotions to blur the
line of rationality and absolve the filter of logic was wrong.
India, as a country committed to justice and the rule of law, needed to honor the
rule of law’s finality and the integrity of their legally-binding agreements.
We expected the Supreme Court of India to demonstrate its continued commitment
to these principles when it considerd the GOI's Curative Petition.
2. What was UCC's reaction to the GOI's Curative Petition?
A. The GOI’s filing of a Curative Petition sent a very troubling message to the
rest of the world, was unprecedented and, in effect, reneged on an agreement it
negotiated and signed with UCC and UCIL in 1989. The settlement had been reviewed and
approved by the highest court in the country, and all parties should be able to
rely upon it as a final disposition of potential liabilities related to that
event.
UCC opposes any attempt to invalidate the original settlement arrived at by the
GOI, UCC and UCIL in 1989.
It’s important to remember that, in directing a final settlement of all Bhopal
litigation in the amount of $470 million in 1989, the Supreme Court of India
reviewed all U.S. and Indian court filings, applicable law and relevant facts,
and an assessment of the victims’ needs. The Court also noted the settlement
award was much larger than any previous damage award in India, and was $120
million more than plaintiffs’ lawyers had told U.S. courts was fair.
Furthermore, the Indian Supreme Court also addressed in its 1991 examination of
the decision what appears to be one of the central points upon which critics
have based their calls for re-opening the settlement. That is, the Supreme Court
required that the GOI make up for any shortfall in the settlement amount
(See page
682, paragraph 198 of the Indian Supreme Court’s 1991 ruling), and to
acquire a group
medical insurance policy to cover 100,000 persons who might later develop
symptoms shown to have
resulted from being exposed during the gas release. (See pages
684-686, paragraphs 205-208, of the
Indian Supreme Court’s 1991 ruling.)
Therefore, the Government of India is the party responsible for paying any
additional sums that might be required -- not Union Carbide.
Click here for Part
1 of the court's decision.
Click here for
Part 2 of the court's decision.
3. Why is it surprising that the GOI took the step to attempt to re-open the
1989 settlement?
A. Because in 2007, when the India Supreme Court rejected attempts to reopen the
1989 settlement for the second time, the proponents to reopening the 1989
settlement at that time used the very same grounds that are set forth in
the curative petition. The India Supreme Court held in 2007 that “it cannot be
done and the said issue has been decided by this court.”
It is instructive (and it was entirely appropriate) that in responding to that
request to reopen, the GOI opposed reopening the 1989 settlement, stating in an
affidavit dated Oct. 26, 2006, that “the validity of the settlement by no
stretch of interpretation can be questioned at this stage as each and every
claimant has got compensation as per law and his entitlement,” that “by no logic
and reason is it open to say even for a moment that the justness or
determination [of compensation] is impaired,” and that “[t]he application filed
by the applicants is frivolous and may be dismissed with heavy costs.”
Nothing had changed that would justify the GOI's change in position.
Regarding the GOI's demand for UCC to pay more toward the clean up of the
Bhopal site.
1. What was UCC's response to the GOI's demand to pay for the site clean
up?
A. UCC strongly disagreed with the GOI's demand to have UCC pay anything
toward the clean up of the Bhopal site. Some have tried unsuccessfully to
litigate this issue in the U.S., with cases filed in New York Federal court
in November 2004, and thereafter, focusing on site remediation and
compensation for residents. In June 2012, a Federal court unambiguously
concluded in Sahu I that neither UCC nor its retired Chairman Warren
Anderson is liable for any environmental remediation or pollution-related
personal injury claims made by residents near the Bhopal plant site.
In June 2013, the U.S. Court of Appeals for the Second Circuit in New York
upheld the 2012 court decision, stating: "...many others living near the Bhopal
plant may well have suffered terrible and lasting injuries from a wholly
preventable disaster for which someone is responsible. After nine years of
contentious litigation and discovery, however, all that the evidence in this
case demonstrates is that UCC is not that entity".
A separate case (Sahu II) -- filed in 2007 in New York District Court -- sought
damages to clean up six individual properties allegedly polluted by contaminants
from the Bhopal plant, as well as the remediation of property in 16 colonies
adjoining the plant. In July 2014, Judge Keenan ruled that UCC was not liable
for any on-ongoing pollution from the Bhopal chemical plant. In May 2016, the
U.S. Court of Appeals for the Second Circuit in New York upheld Judge Keenan's
decision and ruled that UCC was not liable for any pollution arising out of the
disposition of wastes at the former Union Carbide India Limited plant site in
Bhopal. This was the last case in the U.S. courts seeking damages related to the
Bhopal plant, all of which have been dismissed. Click here for the
complete opinion of the U.S Court of Appeals for the Second Circuit in New
York.
2. Some say the amount of funding needed to help survivors and their families
was underestimated in that initial settlement. If more money is needed, will
it come from UCC?
A. No. the Supreme Court of India has already spoken to any potential need for
additional funds. In its 1991 reaffirmation of the 1989 Bhopal settlement, the
Court required the GOI to:
In 2006, the GOI filed an affidavit with the India Supreme Court
asserting that the settlement was appropriate and reasonable and should not be
revisited. In a 2007 decision, the India Supreme Court agreed with this view. At
that time, it was noted that the actual disposition amount distributed to
individuals and families had, in fact, been higher than prescribed, with no new
claimants stepping forward.
We understood there were virtually no new facts to consider since this issue was
considered in 2007. In fact, we understood the Curative Petition showed
that the additional settlement funds being sought were based on a large number of
“minor- or no-injury” claims. This is a category which – according to the GOI’s
2006 affidavit – included “mere presence” in an affected part of the city,
without physical injury.
3. What role has the GOI played in the aftermath of the Bhopal Tragedy?
A. In its 1991 examination of the 1989 Bhopal settlement, the India Supreme
Court required the GOI to make up for any shortfall in the settlement account
and also acquire a medical insurance policy to cover 100,000 people who might
later develop symptoms shown to have resulted from being exposed during the gas
release.
However, there was no shortfall. The settlement fund was sufficient to
compensate all claimants double the amounts the GOI itself set as fair
compensation. Therefore, any questions regarding additional compensation for
those who died, sustained injuries or continue to suffer health effects as a
result of the Bhopal tragedy should be directed to the GOI.
4. Who should clean up the site?
A. Responsibility for the clean-up of the Bhopal site lies with the Madhya
Pradesh State Government (MPSG). In 1998, the MPSG, which owns and had been
leasing the property to UCIL, took over the facility and assumed all
accountability for the site, including the completion of any additional
remediation. The Ministry of Chemicals and Fertilizers announced on Aug. 5,
2010, that the cleanup would be undertaken and completed by the state by Dec.
31, 2010...but that has not taken place.
5. Was the reported amount requested in the Curative Petition ($1.2 billion)
incremental, or did it include the $470 million that was already paid
out?
A. We understood this proposal to be incremental.
6. What was the legal precedent for this type of activity?
A.None whatsoever. The Curative Petition is contrary to law and due process.
7. What did we expect the timing would be for a final determination?
A. The final determination was made in
1989 and the adequacy of the settlement has since been re-affirmed by the
Indian Supreme Court in 1991 and 2007. We expected and had every confidence
that the India Supreme Court would continue to adhere to its long standing
tradition of comporting with the rule of law and due process.
8. What was Union Carbide's reaction to the March 14, 2023, decision by the Supreme Court of India completely dismissing the Curative
Petition?
A. In dismissing the Curative Petition, the Supreme Court of India has reaffirmed the solemnity of the 1989 settlement, as it previously did in 2007, and has again demonstrated that the
settlement between the GOI and UCC, as well as its then subsidiary, Union Carbide India Limited (UCIL) is -- as a matter of law -- fair, final and irrevocable.
More than 39 years after the tragedy, this terrible event continues to evoke strong emotions. The Supreme Court's action helped reinforce the global perception of India as a nation
committed to the rule of law and the integrity of legally binding agreements.