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The duplicity of the US Courts

June 30, 2010

After reading my post on Bhopal Gas Tragedy, a friend Goutham brought to my notice a very interesting point. This blog post is born out of our discussions over chat and the 188th Report of the Law Commission of India.

This report made an interesting observation, starting with the Bhopal Gas verdict (US Court). I have already mentioned that the lawsuit filed by India against Union Carbide Corporation in the US courts was returned to Indian courts on the ground of ‘forum non conveniens’. In this case [In re Union Carbide Corporation Gas Plant Disaster at Bhopal (1986) 634, F. Suppl 842 (S.D.N.Y)], Keenan J observed:

“In the Court’s view, to retain the litigation in this forum, as plaintiff’s request, would be yet another example of imperialising another situation in which an established sovereign inflicted its rules, its standards and values on a developing nation. This Court declines to play such a role. The Union of India is a world power in 1986 and its courts have the proven capacity to mete out fair and equal justice. To deprive the Indian judiciary of this opportunity to stand tall before the world and to pass judgment on behalf of its own people, would be to revive a history of subservience and subjugation from which India has emerged. India and its people can and must vindicate their claims before the independent and legitimate judiciary created there since the Independence of 1947. This Court is persuaded, by the example of the Bhopal Act itself and other cases where special measures to expedite were taken by the Indian judiciary, that the most significant, urgent and extensive litigation ever to arise from a single event could be handled through the judicial accommodation in India, if required. To sum the discussion on this point, the Court determines that the Indian Legal System provides an adequate alternative forum for the Bhopal litigation. Far from exhibiting a tendency to be so ‘inadequate or unsatisfactory’ as to provide ‘no remedy at all’, the Courts of India appear to be well up the task of handling this case…. Differences between the two legal systems, even if they inure to plaintiff’s detriment, do not suggest that India is not an adequate alternative forum. …In addition to the burden on the Court system, continuation of this litigation in the forum would tax the time and resources of citizens directly; …..clearly, the administrative costs of this litigation are astounding and significant.”

Affidavits were filed by Marc Galanter, stating why UCC should be tried in US and not India. One of the most important reason cited was that Indian courts are plagued by delays and that they were not adequately equipped to handle the complex litigation arising out of mass torts claims. This Affidavit was rejected by Keenan J while deciding the case.

The eulogies sang by the US court about capability of Indian courts vanished at the time of Bhatnagar v Surendra Overseas Ltd. (1995) 52 F.2.d. 1220(3rd Cir). Here, Lewis J., referred to similar affidavits filed by Marc Galanter and Shardul Shroff, an eminent Indian lawyer stating that “Indian Court system was in a state of virtual collapse”, and ruled in favour of continuance of the case in the US. He observed:

“…the Indian legal system has a tremendous backlog of cases – so great that it could take upon a quarter of a century to resolve this litigation if it were filed in India.”

In Modi Enterprises vs. ESPN Inc (dt. 4.3.2003) Judge Ira Gammerman of the Supreme Court of the State of New York, New York County observed, while  entertaining and retaining the suit filed in US against Indian parties:

“…but it is evident that there are backlogs in the Indian Courts, including the Delhi High Court in which this claim would be litigated that would be viewed as intolerable in New York Court, sometime involving decades. Such delay has been viewed a factor supporting denial of a forum non conveniens motion"

Another reason was cited by Ira Gammerman J for retaining the suit in New York:

“to protect the reputation of New York as a leader in international Commerce and to encourage other foreign entities to come to New York to do business without fear that the New York Courts will relegate their law suits against entities operating in New York, to delay-plagued courts of the foreign entity’s own home jurisdictions”.

Innovative and totally baseless reasoning, in my view.

What the US Court described as an appropriate remedy in Bhopal (viz. remedy in Indian Courts) was treated as ‘no remedy at all’ in Bhatnagar and Modi. The affidavits filed by Marc Galanter were rejected in case of Bhopal but accepted in the other cases mentioned above! By now, I am sure readers have been able to discern the difference between the cases – in Bhopal, the claimants were Indian victims while in the latter cases, the defendants were Indians. The principle of ‘forum non conveniens’ is used discriminatorily in case of Indian plaintiffs trying to recover damages against US nationals in their home country. The American laws are more developed in terms of precedents in instances of mass torts case, which will prove to be an impediment for the US national to get away easily. One has the Bhopal case as an excellent instance. However, on the other hand, if its Indians (or foreigners) who are involved as defendants, US courts will try to uphold the US plaintiff’s interests and not send the suit to Indian courts, where they fear, the interests of the US plaintiff will not be taken care of. In the words of Mr. Joel R Paul in ‘Country in International Law’ (1991) 32 Harv. I.L.J. 14:

“By refusing to exercise jurisdiction in a case like In re Union Carbide, a Court effectively allows a US manufacturer to avoid US tort liabilities and encourages other manufacturers to locate plants abroad.”

Under the Alien Tort Claims Act, 1789, there are some instances where the erring US nationals have been held guilty. e.g. in Doe I v Unocal Corp [963 F Supp 880 (CD Cal 1997)], a claim of human rights violation brought by Malaysian farmers was tried in US court and upheld. However, as against one Doe v Unocal, there are numerous other instances where such claims of foreign plaintiffs have failed, mainly on the ground of forum non conveniens.

Such is the duplicity of the US courts!

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One Comment leave one →
  1. June 30, 2010 10:31 pm

    Just their courts? What about their foreign policy, among other things?

    Btw, we were having a discussion on just this in my firm a few days back….

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