The Dow Chemical Company’s Bhopal Related Legal Liabilities
The Dow Chemical Company (Dow) claims that all legal matters concerning the Bhopal disaster are closed. This is simply not true. Dow is a named respondent in a number of ongoing cases arising from Union Carbide’s business in Bhopal:
1. Dow is a named respondent in a forthcoming ‘curative petition’ in India’s Supreme Court that aims to address inadequacies within the 1989 civil settlement (U.S. $470 million). A hearing date is due after postponement of the scheduled date, August 5th, 2014.
The Indian Government’s official position is that the ‘gross inadequacy’ of the 1989 settlement with Union Carbide (UCC) resulted in an ‘irremediable injustice’. It is seeking additional compensation based on higher figures for the dead and injured. The Bhopal survivors groups have challenged the Government to use its own, previously published, figures (Indian Council of Medical Research, epidemiological report, 2004) for the dead and injured which would require a settlement of $8.1billion. The other respondents are Union Carbide Corporation, Union Carbide India Limited and Eveready Industries.
2. Dow’s wholly owned subsidiary Union Carbide Corporation (UCC) is wanted on CRIMINAL charges of ‘culpable homicide not amounting to murder’ and is a ‘proclaimed absconder’ from Indian justice. Dow has total control of UCC but has never produced UCC in court.
After the 2001 takeover of UCC, Dow used an Indian subsidiary, Dow Private India Ltd, to block a 2005 judicial summons, addressed to its Michigan HQ requesting it explain the non-appearance of UCC in the courts. The court removed the blocking order, in 2012, and a notice was served to Dow requiring it to explain why UCC has repeatedly ignored court summons. Dow did not attend the court, nor did it attend further hearings on March 13, 2015 and the 19th December 2015.
On May 15, 2016, a White House ‘We The People’ petition was launched criticising the US Department of Justice. The petition stated: “Under a Mutual Legal Assistance Treaty, India sent 4 notices to the US Dept. of Justice to summon Dow to explain UCC’s whereabouts. The DoJ has ignored or obstructed every notice… We insist that the US govt. meet its obligations under Treaty & international law by immediately serving notice upon Dow to attend court in Bhopal on July 13, 2016.” The notice was not served and Dow did not attend the Bhopal court.
On Friday 13 Jan 2017, the court of the Chief Judicial Magistrate, in Bhopal, issued summons to Dow Chemical via email, to Amy Wilson, corporate secretary of Dow Chemical company. Dow is expected to appear before the Chief Judicial Magistrate’s Court on 13th February 2017. The court stated that: “as per the provisions under Section 65 of Code of Criminal Procedure, court can order to execute summons using any new means.”
Audrey Gaughran, Amnesty International’s Director for Global Issues, said: “The time has come for Dow to appear in an Indian court and account for the failure of its wholly-owned subsidiary, Union Carbide, to respond to the criminal charges against it.”
3. Dow is a named respondent in public interest litigation in the Madhya Pradesh High Court (2004) seeking remediation of the abandoned Union Carbide factory site. But Dow continues to resist the Ministry’s 2006 request for a £16 million deposit towards initial costs.
Dow refuses to acknowledge the official position of the Indian government, as expressed in a letter to the Lower District Court, Manhattan, dated June 8, 2004, viz: “It is the official position of the Government of India that the previous settlement of claims concerning the 1984 Bhopal Gas Disaster between Union Carbide and Union of India has no legal bearing on or relation whatsoever to the environmental contamination… Pursuant to the ‘polluter pays’ principle recognized by both the United States and India, Union Carbide should bear all the financial burden and cost for the purpose of environmental clean-up and remediation. The Union of India and the State Government of Madhya Pradesh shall not bear any financial burden for this purpose.”
4. Union Carbide Corporation has been subject to three class-action lawsuits in the Southern District New York Court Since 1999. The US courts accept that this is a separate matter from the 1984 gas disaster and has not been part of any pre-existing settlement. The last of the class actions, know as Sahu II, was dismissed on July 30, 2014. A petition for re-hearing was filed with the Second Circuit Court but, on the 15th August, 2016, an order was issued dismissing the petition without any comment.
History of Sahu II: CLICK
History of Bano, Sahu I & II class actions: CLICK
Dow’s flawed legal defence. Further details concerning ownership of Union Carbide: CLICK
Dow’s corporate veil: CLICK