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#1 Carnival Cruise Lines, Inc. v.

Shute for”, (2) “create additional expense for one party”, or (3)
499 U.S. 585 (1991) “deny one party a remedy”.

Facts: The Shutes went on a cruise. On the ticket, there was a Notes and Problems
forum selection clause that said any litigation related to the cruise
must be tried in Florida. They departed for their cruise from Los 1.
Angeles and the ship sailed to Mexico and back to Los a. It is most likely that the suit would either be
Angeles. Mrs. Shute slipped on the ship and hurt brought in Florida or Washington.
herself. The Shutes sued in Washington and Carnival moved for b. In Florida, there would be no
summary judgment due to the forum selection clause. At trial, problem. Florida courts have general
the Shutes conceded that they had notice of the forum selection jurisdiction over Carnival because that’s their
clause. principal place of business. Thus, any federal
court located in Florida would have personal
jurisdiction over Carnival. In Washington,
Procedural Posture: The suit was first brought in the Western however, Carnival would try to argue that it
District of Washington. The Ninth Circuit refused to enforce the doesn’t have sufficient minimum contacts. If
clause, and the cruise line appealed to the United States Supreme Carnival only solicits business through travel
Court. agents and doesn’t have TV commercials
(hmmmm….) then they might have a case for no
 District court – petitioner’s contract was not sufficient to jurisdiction in Washington.
warrant personal jurisdiction. 2.
 Appellate court reversed the decision – but for the a. So there’s a contract law issue.
advertisements in Washington, the Shutes wouldn’t have b. So there’s a public policy issue.
taken the cruise. c. The majority spends more time on the
 Forum clause was not freely bargained for as an enforceability issue. They argue that the
independent Justification contract clause is enforceable even though the
 Shutes are physically and financially incapable of having passengers were not allowed to negotiate it. The
the suit in Florida….deprive them of their day in court. court gives three reasons why this is acceptable:
 From Bremen court took the reasonableness factors (1) the diversity of Carnival’s passengers could
“automatically” because the parties are not business subject them to suit in a variety of jurisdictions;
parties and did not negotiate the terms of the (2) a forum selection clause reduces the
clause….Form contract…universal to all passengers. uncertainty, time and money involved in
 Supreme Court – granted certiorari if the district court determining a forum; and (3) forum selection
could hear the case. clauses have benefits for Carnival that they pass
along to their customers as lower fares.
Issue: Is the forum selection clause enforceable? d. The majority implies that they would not
enforce a forum selection clause that is intended
Rule: Courts have the responsibility to determine whether forum to “discourag[e] cruise passengers from
selection clauses in form passage contracts are fair. pursuing legitimate claims”. They also would
not enforce a forum selection clause that was
Analysis: The Court says that the ticket contract was a routine obtained by “fraud or overreaching”.
commercial passage contract. It was not negotiated, and the 3.
parties did not have equal bargaining power. a. A forum selection clause will only help in cases
that involve a contractual
The Court enumerates several good reasons for a forum selection relationship. In Pennoyer, I suppose Mitchell
clause in a cruise ticket contract: could have included a forum selection clause in
his service contract with Neff such that Neff
1. A cruise will have passengers from all over the country, agreed to appoint an agent in Oregon to accept
and absent a forum selection clause, the cruise company service of process. Then there would be no
could be subject to suit in all sorts of places. question about Oregon having personal
2. A forum selection clause eliminates uncertainty about the jurisdiction over Neff. In Shoe, there was no
forum and avoids costly pretrial motions. contractual relationship between the state
3. Forum selection clauses mean lower fares for passengers of Washington and International Shoe, but
because the cruise company passes along savings from instead was a statutory question. Shaffer was
limiting the forums where the company must defend essentially also a statutory question. McGee did
itself. involve a contract for life insurance. If the life
insurance policy included a forum selection
The Court says that the key question is whether the clause is clause allowing McGee to bring suit
fair. In evaluating the fairness of such clauses, the Court must in California, then he’d be good to go; but the
consider whether Carnival was, in bad faith, discouraging insurance company would never agree to
legitimate claims from its passengers. The Court says that because that. In Hanson, perhaps Mrs. Donner could
Carnival does business primarily in Florida and has a lot of cruises have put some forum selection language in the
that depart from Florida, they didn’t include the clause in bad faith. documents establishing her
trust. In World-Wide, there was no
Stevens, in his dissent, refers to two “strands” of contract law that contract. In Asahi, it’s highly unlikely that the
come into play in this case. two overseas companies would have agreed to
go to court in the United States to settle their
1. Courts look closer at contracts made between parties with differences. In Burger King, there was a choice
unequal bargaining power, especially “take it or leave it” of law clause—but explicitly not a forum
contracts. selection clause—in the franchise
2. At least in the past, forum selection clauses have been contract. In Washington Equipment, there could
found to be counter to public policy. In particular, they have been a forum selection clause in the
are not enforced if they (1) “were not freely bargained contract between Washington Equipment and
Concrete Placing which would have settled The forum-selection clause, which was a vital part of the towing
things. In Burnham, there’s no help. contract, is binding on the parties unless respondent can meet the
b. I don’t know what constitutes malpractice, but I heavy burden of showing that its enforcement would be
suppose a lawyer ought to study contracts so far unreasonable, unfair, or unjust. Further a forum selection clause
as the benefits outweigh the costs. It’s tempting will not be enforced unless another state would provide a more
to say that lawyers must study every clause convenient forum than the state in which suit is brought. From
exhaustively (charging zillions of dollars in fees that premise, it is to be noted that (1) the flotilla never "escaped
while doing so), but I think there’s a cutoff. the Fifth Circuit's mare nostrum, and the casualty occurred in
4. close proximity to the district court"; (2) a considerable number of
a. This kind of clause says we’ll use the laws of potential witnesses, including Zapata crewmen, resided in the
such-and-such a forum, even if we don’t do the Gulf Coast area; (3) preparation for the voyage and inspection and
trial in that particular forum. repair work had been performed in the Gulf area; (4) the
b. This one says “we definitely can do the suit in testimony of the Bremencrew was available by way of deposition;
forum X, but not necessarily only forum X”. (5) England had no interest in or contact with the controversy
c. Here we’re doing any and all suits in forum X other than the forum selection clause.
and only forum X.
d. I like arbitration. The expansion of American business and industry will hardly be
e. This is pretty extreme. encouraged if, notwithstanding solemn contracts, we insist on a
parochial concept that all disputes must be resolved under our
Conclusion: The forum selection clause is enforceable. laws and in our courts. Absent a contract forum the considerations
would be a heavy hand indeed on the future development of
international commercial dealings by Americans. We cannot have
trade and commerce in world markets and international waters
exclusively on our terms, governed by our laws, and resolved in
#2The Bremen v. Zapata Off-Shore Co., our courts. Not surprisingly, foreign businessmen prefer, as do we,
to have disputes resolved in their own courts, but, if that choice is
407 U.S. 1 (1972)
not available, then in a neutral forum with expertise in the subject
June 12, 1972 matter. Plainly, the courts of England meet the standards of
neutrality and long experience in admiralty litigation. The choice
of that forum was made in an arm's length negotiation by
experienced and sophisticated businessmen, and, absent some
FACTS:
compelling and countervailing reason, it should be honored by the
parties and enforced by the courts.

Respondent Zapata, a Houston-based American corporation, In this case there are compelling reasons why a freely negotiated
contracted with petitioner Unterweser, a German corporation, to private international agreement, unaffected by fraud, undue
tow Zapata's drilling rig Chaparral from Louisiana to a point off influence, or overweening bargaining power should be given full
Ravenna, Italy, in the Adriatic Sea, where Zapata had agreed to effect. In the course of its voyage, it was to traverse the waters of
drill certain wells. The contract contained a forum-selection many jurisdictions. The Chaparral could have been damaged at
clause providing for the litigation of any dispute in the High Court any point along the route, and there were countless possible ports
of Justice in London. When the rig under tow was damaged in a of refuge. Manifestly, much uncertainty and possibly great
severe storm in the middle of the Gulf of Mexico, respondent inconvenience to both parties could arise if a suit could be
Zapata instructed Unterweser to tow the rig to Tampa, the nearest maintained in any jurisdiction in which an accident might occur
port of refuge. There, respondent brought suit in admiralty against or if jurisdiction were left to any place where the Bremen or
petitioners. Unterweser invoked the forum clause in moving for Unterweser might happen to be found.
dismissal for want of jurisdiction and brought suit in the English
court in London, which ruled that it had jurisdiction under the
contractual forum provision. In the meantime, Unterweser was
faced with a dilemma in the pending action in the United States
court at Tampa. The six-month period for filing action to limit its Case # 3
liability to Zapata and other potential claimants was about to
BURGER KING CORP. vs RUDZEWICZ
expire, without the court ruling on the motion to dismiss or stay
Zapata's action. Confronted with difficult alternatives, Unterweser 471 US 462
filed an action to limit its liability in the District Court in Tampa.
That court entered the customary injunction against proceedings
outside the limitation court, and Zapata refiled its initial claim in
the limitation action. Facts: Appellant is a Florida corporation whose principal
offices are in Miami. It conducts most of its restaurant business
The District Court held the forum-selection clause unenforceable, through a franchise operation, under which franchisees are
and refused to decline jurisdiction on the basis of forum non licensed to use appellant's trademarks and service marks in leased
conveniens. The Court of Appeals affirmed reiterating that standardized restaurant facilities for a period of 20 years. The
agreements in advance of controversy whose object is to oust the governing contracts provide that the franchise relationship is
jurisdiction of the courts are contrary to public policy, and will established in Miami and governed by Florida law, and call for
not be enforced. Concluding that the balance of conveniences payment of all required monthly fees and forwarding of all
here is not strongly in favor of Unterweser and Zapata's choice of relevant notices to the Miami headquarters.
forum should not be disturbed.
The Miami headquarters sets policy and works directly
with the franchisees in attempting to resolve major problems.
Day-to-day monitoring of franchisees, however, is conducted
ISSUE: through district offices that, in turn, report to the Miami
headquarters. Appellee is a Michigan resident who, along with
Whether the forum-selection clause is validly enforceable?
another Michigan resident, entered into a 20-year franchise
contract with appellant to operate a restaurant in Michigan.

HELD:
Subsequently, when the restaurant's patronage declined, The Supreme Court of the United States reversed the
the franchisees fell behind in their monthly payments. After decision of the 11th Circuit.
extended negotiations among the franchisees, the Michigan
district office, and the Miami headquarters proved unsuccessful in
solving the problem, headquarters terminated the franchise and Case #4
ordered the franchisees to vacate the premises. They refused, and
continued to operate the restaurant. SWEET LINES INC. vs. TEVES,
Appellant then brought a diversity action in Federal G.R. No. L-37750 May 19, 1978
District Court in Florida, alleging that the franchisees had
breached their franchise obligations and requesting damages and
injunctive relief. The franchisees claimed that, because they were
FACTS: Private respondents Atty. Leovigildo Tandog and
Michigan residents and because appellant's claim did not "arise"
Rogelio Tiro, a contractor by profession, bought tickets Nos.
within Florida, the District Court lacked personal jurisdiction over
0011736 and 011737 for Voyage 90 on December 31, 1971 at the
them.
branch office of Sweet Lines, Inc., a shipping company
But the court held that the franchisees were subject to transporting inter-island passengers and cargoes, at Cagayan de
personal jurisdiction pursuant to Florida's long-arm statute, which Oro City. Tandog and Tiro were to board petitioner's vessel, M/S
extends jurisdiction to any person, whether or not a citizen or "Sweet Hope" bound for Tagbilaran City via the port of Cebu.
resident of the State, who breaches a contract in the State by Upon learning that the vessel was not proceeding to Bohol, since
failing to perform acts that the contract requires to be performed many passengers were bound for Surigao, private respondents per
there. advice, went to the branch office for proper relocation to M/S
"Sweet Town". Because the said vessel was already filled to
Thereafter, the court entered judgment against the capacity, they were forced to agree "to hide at the cargo section to
franchisees on the merits. The Court of Appeals reversed, holding avoid inspection of the officers of the Philippine Coastguard."
that "jurisdiction under these circumstances would offend the Private respondents alleged that they were, during the trip,"
fundamental fairness which is the touchstone of due process." "exposed to the scorching heat of the sun and the dust coming
from the ship's cargo of corn grits," and that the tickets they
bought at Cagayan de Oro City for Tagbilaran were not honored
Issue: W/not jurisdiction is appropriate where non-resident and they were constrained to pay for other tickets.
defendants have willingly negotiated and entered into a contract
In view thereof, private respondents sued petitioner for
with a corporation residing in the forum state.
damages and for breach of contract of carriage in the alleged sum
of P10,000.00 before respondents Court of First Instance of
Misamis Oriental. Petitioner moved to dismiss the complaint
Held: YES. on the of improper venue.Said motion, however, was denied by
the trial court. Sweet Lines’ filed a motion for reconsideration
The District Court's exercise of jurisdiction pursuant to but no avail. Hence, the petition.
Florida's long-arm statute did not violate the Due Process
Clause of the Fourteenth Amendment. ISSUE: Is Condition No. 14 printed at the back of the Sweet
Lines’ passage tickets, limiting the venue of actions arising from
A forum may assert specific jurisdiction over a the contract of carriage to the Court of First Instance of Cebu,
nonresident defendant where an alleged injury arises out of or valid and enforceable?
relates to actions by the defendant himself that are purposeful
directed toward forum residents, and where jurisdiction would not HELD: No. Considered in the light of the foregoing norms
otherwise offend "fair play and substantial justice." Jurisdiction in and in the context of circumstances prevailing in the inter-island
these circumstances may not be avoided merely because the shippingindustry in the country today, We find and hold that
defendant did not physically enter the forum. Condition No. 14 printed at the back of the passage tickets should
be held as void and unenforceable for the following reasons:
An individual's contract with an out-of-state party
first, under circumstances obligation in the inter-island shipping
cannot alone automatically establish sufficient minimum contacts
industry, it is not just and fair to bind passengers to the terms of
in the other party's home forum. Instead, the prior negotiations
the conditions printed at the back of the passage tickets, on which
and contemplated future consequences, along with the terms of
Condition No. 14 is printed in fine letters; and second, Condition
the contract and the parties' actual course of dealing, must be
No. 14 subverts the public policy on transfer of venue of
evaluated to determine whether a defendant purposefully
proceedings of this nature, since the same will prejudice rights
established minimum contacts within the forum.
and interests of innumerable passengers in different parts of the
Here, appellee established a substantial and continuing country who, under Condition No. 14, will have to file suits
relationship with appellant's Miami headquarters, and received against petitioner only in the City of Cebu.
fair notice from the contract documents and the course of dealings
It is a matter of public knowledge, of which We can take judicial
that he might be subject to suit in Florida. The District Court
notice, that there is a dearth of and acute shortage in inter- island
found that appellee is an "experienced and sophisticated"
vessels plying between the country's several islands, and the
businessman who did not act under economic duress or
facilities they offer leave much to be desired. Thus, even
disadvantage imposed by appellant, and appellee has pointed to
underordinary circumstances, the piers are congested with
no other factors that would establish the unconstitutionality of
passengers and their cargo waiting to be transported. The
Florida's assertion of jurisdiction.
conditions are even worse at peak and/or the rainy seasons, when
Where a Defendant who has purposefully directed his Passengers literally scramble to whatever accommodations may
activities at forum residents seeks to prevent jurisdiction, he must be availed of, even through circuitous routes, and/or at the risk of
present a compelling case that the presence of some other their safety — their immediate concern, for the moment, being to
considerations would render jurisdiction unreasonable. Where a be able to board vessels with the hope of reaching their
forum state seeks to assert specific jurisdiction over non-resident destinations. The schedules are — as often as not if not more so
defendants, the fair warning requirement is satisfied if the — delayed or altered. This was precisely the experience of private
Defendant has purposefully directed his activities at residents of respondents when they were relocated to M/S "Sweet Town" from
the forum and the litigation results from alleged injuries that arise M/S "Sweet Hope" and then any to the scorching heat of the sun
out of or relate to those activities. and the dust coming from the ship's cargo of corn grits, " because
even the latter was filled to capacity
Condition No. 14 is subversive of public policy on transfers of
venue of actions. For, although venue may be changed or
transferred from one province to another by agreement of the
parties in writing t to Rule 4, Section 3, of the Rules of Court,
such an agreement will not be held valid where it practically
negates the action of the claimants, such as the private
respondents herein. The philosophy underlying the provisions on
transfer of venue of actions is the convenience of the plaintiffs as
well as his witnesses and to promote the ends of justice.
Considering the expense and trouble a passenger residing outside
of Cebu City would incur to prosecute a claim in the City of Cebu,
he would most probably decide not to file the action at all. The
condition will thus defeat, instead of enhance, the ends of justice.
Upon the other hand, petitioner has branches or offices in the
respective ports of call of its vessels and can afford to litigate in
any of these places. Hence, the filing of the suit in the CFI of
Misamis Oriental, as was done in the instant case, will not cause
inconvenience to, much less prejudice, petitioner.

Public policy is ". . . that principle of the law which holds that no
subject or citizen can lawfully do that which has a tendency to be
injurious to the public or against the public good ... Under this
principle" ... freedom of contract or private dealing is restricted by
law for the good of the public. Clearly, Condition No. , if
enforced, will be subversive of the public good or interest, since it
will frustrate in meritorious cases, actions of passenger cants
outside of Cebu City, thus placing petitioner company at a
decided advantage over said persons, who may have perfectly
legitimate claims against it. The said condition should, therefore,
be declared void and unenforceable, as contrary to public policy
— to make the courts accessible to all who may have need of their
services.
#5 Hongkong Shanghai Banking Corporation vs. Sherman 2. It is asserted that defendant Robert Sherman is not a citizen nor
a resident of the Philippines.
176 SCRA 331 , August 11, 1989
This argument holds no water. Jurisdiction over the persons of
J. Medialdea
defendants is acquired by service of summons and copy of the
complaint on them. There has been a valid service of summons on
both defendants and in fact the same is admitted when said
FACTS: defendants filed a ‘Motion for Extension of Time to File
Responsive Pleading’ on December 5, 1984. This court dismiss
the motion. A motion for reconsideration of the said order was
filed by private respondents which was, however, denied.
A complaint for collection of a sum of money was filed by
petitioner Hongkong and Shanghai Banking Corporation (BANK) -COURT OF APPEALS-
against private respondents Jack Robert Sherman and Deodato Private respondents then filed a petition for prohibition with
Reloj before the Regional Trial Court of Quezon City, Branch 84. preliminary injunction and/or prayer for a restraining order. The
Sometime in 1981, a (COMPANY) Eastern Book Supply Service respondent Court granted the said motion, that the
PTE, Ltd incorporated in Singapore applied an “overdraft facility” respondent-Court is enjoined from taking further cognizance of
in the maximum amount of 200,000 (which was subsequently the case and to dismiss the same for filing with the proper court
increased to 375,000 singaporean dollars), and was granted, with of Singapore which is the proper forum. Petitioner filed a MOR
an interest prime rate of 3% of the (BANK) which is payable but was denied. Hence, the present petition.
monthly on amounts due. As a security for the repayment by the
COMPANY of sums advanced by petitioner BANK to it through ISSUE:
the aforesaid overdraft facility, the private respondents and a Whether or not Philippine courts have jurisdiction over the
certain Robin de Clive Lowe, all of whom were directors of the suit.
COMPANY at such time, executed a Joint and Several Guarantee
in favor of petitioner BANK whereby private respondents and HELD:
Lowe agreed to pay, jointly and severally, on demand all sums Yes, the decision of the respondent Court is hereby
owed by the COMPANY to petitioner BANK under the REVERSED and the decision of the Regional Trial Court is
aforestated overdraft facility. The Joint and Several Guarantee REINSTATED, with costs against private respondents.
provides, inter alia, that:
-DISCUSSION-
While it is true that "the transaction took place in
Singaporean setting" and that the Joint and Several Guarantee
“This guarantee and all rights, obligations and
contains a choice-of-forum clause, the very essence of due
liabilities arising hereunder shall be construed and
process dictates that the stipulation that "this guarantee and all
determined under and may be enforced in accordance
rights, obligations & liabilities arising hereunder shall be
with the laws of the Republic of Singapore. We hereby
construed & determined under & may be enforced in accordance
agree that the Courts of Singapore shall have
w/ the laws of the Republic of Singapore. We hereby agree that
jurisdiction over all disputes arising under this
the Courts in Singapore shall have jurisdiction over all disputes
guarantee x x x.”
arising under this guarantee" be liberally construed.

One basic principle underlies all rules of jurisdiction in


-TRIAL COURT- International Law: a State does not have jurisdiction in the
absence of some reasonable basis for exercising it, whether the
The COMPANY failed to pay its obligation. Thus, petitioner
proceedings are in rem quasi in rem or in personam. To be
BANK demanded payment of the obligation from private
reasonable, the jurisdiction must be based on some minimum
respondents, conformably with the provisions of the Joint and
contacts that will not offend traditional notions of fair play and
Several Guarantee. Inasmuch as the private respondents still
substantial justice.
failed to pay, petitioner BANK filed the above-mentioned
complaint. (complaint for collection of a sum of money)
Indeed, as pointed-out by HSBC at the outset, the instant case
presents a very odd situation. In the ordinary habits of life, anyone
would be disinclined to litigate before a foreign tribunal, with
On December 14, 1984, private respondents filed a motion more reason as a defendant.
to dismiss which was opposed by petitioner BANK. Acting on the
motion, the trial court issued an order “In a Motion to Dismiss, However, in this case, Sherman & Reloj are Philippine residents
the defendants seek the dismissal of the complaint on two grounds, (a fact which was not disputed by them) who would rather face a
that the court has no jurisdiction over the subject matter of the complaint against them before a foreign court and in the process
complaint; and that the court has no jurisdiction over the persons incur considerable expenses, not to mention inconvenience, than
of the defendants. The Court finds no merit in the motion. to have a Philippine court try and resolve the case. Their stance is
hardly comprehensible, unless their ultimate intent is to evade, or
1. On the first ground, The defendants claim that by virtue of the at least delay, the payment of a just obligation.
provision in the Guarantee (the actionable document), that the
Court has no jurisdiction over the subject matter of the case. The defense of Sherman & Reloj that the complaint should
have been filed in Singapore is based merely on technicality.
The Court finds and concludes that there is nothing in the
They did not even claim, much less prove, that the filing of the
Guarantee which says that the courts of Singapore shall have
action here will cause them any unnecessary trouble, damage, or
jurisdiction to the exclusion of the courts of other countries or
expense. On the other hand, there is no showing that petitioner
nations. Also, it has long been established in law and
BANK filed the action here just to harass Sherman & Reloj.
jurisprudence that jurisdiction of courts is fixed by law; it cannot
be conferred by the will, submission or consent of the parties.
The parties did not thereby stipulate that only the courts of
Singapore, to the exclusion of all the rest, has jurisdiction.
Neither did the clause in question operate to divest Philippine
courts of jurisdiction. In International Law, jurisdiction is often
defined as the light of a State to exercise authority over persons
and things w/in its boundaries subject to certain exceptions.

Thus, a State does not assume jurisdiction over travelling


sovereigns, ambassadors and diplomatic representatives of other
States, and foreign military units stationed in or marching through
State territory w/ the permission of the latter's authorities. This
authority, which finds its source in the concept of sovereignty, is
exclusive w/in and throughout the domain of the State. A State is
competent to take hold of any judicial matter it sees fit by making
its courts and agencies assume jurisdiction over all kinds of cases
brought before them.
#6 White v. Tennant
31 W.Va. 790
J. Snyder #8 Yamada Corporation v. Yasuda Fire and Marine Ins. Co.
FACTS: 305 Ill.App.3d 362 (2d Dist. 1999)

Michael White was legally domiciled in West Virginia Industrial pump manufacturer Yamada sued its insurer Yasuda for
where he had lived his entire life and owned a farm. Michael had
its failure to provide a defense and indemnity in a case filed
made an agreement with his mother, brothers and sisters to sell
his farm and occupy a house on 40 acres of land in Pennsylvania, against Yamada in the Cook County Circuit Court by CWC
just across the West Virginia state line. The land was part of a Fluids, Inc., d/b/a Culligan Water Conditioning where the pump
larger family farm located on both sides of the state line with a failed causing hydrochloric acid to spill throughout the plant
mansion-house found on the West Virginia side. Michael and his ruining plaintiff’s regeneration system. Yasuda denied Yamada’s
wife brought their possessions and livestock to their new
home. However, the house was cold and damp and Michael’s tender of defense based on the absolute pollution exclusion
wife was not feeling well, so he accepted an invitation to spend contained within the commercial liability insurance policy issued
the night in the West Virginia mansion-house. They unloaded by Yasuda to Yamada. The case had a tortured history as Yasuda
their possessions first and then left. It turned out that Michael’s had filed a declaratory judgment action in Japan against Yamada
wife had typhoid fever. He took care of her at the mansion-house,
asserting that it had no duty of defense.
and also went into Pennsylvania daily to care for his stock. Two
weeks later, Michael caught typhoid and died in West
Virginia. His wife recovered and her father, Tennant Kane County Circuit Judge Dunn granted Yamada’s motion to
(Defendant), was appointed administrator of Michael’s enjoin Yasuda from proceeding on its declaratory judgment action
estate. Under the law of West Virginia, Michael’s wife would filed in the Tokyo, Japan District Court. Yasuda filed an
receive all her husband’s personal property by intestate
interlocutory appeal on the trial court’s injunction which was
succession. Under Pennsylvania law, she would receive only
half, and his immediate family would get the other half. White affirmed by the Second District Appellate Court. Judge Dunn then
(Plaintiff), the brothers and sisters of Michael, sought to set aside granted defendant’s motion to dismiss plaintiff’s complaint based
the West Virginia distribution of his estate, claiming he was upon the insurance policy’s forum selection clause contained at
domiciled in Pennsylvania. endorsement 11 to the policy. On plaintiff’s motion to reconsider,
Judge Dunn denied defendant’s motion for summary judgment
ISSUE:
finding that the forum selection clause was unenforceable. Judge
Will the succession and distribution of a decedent’s personal
estate be controlled by the law of the state where the decedent Dunn retired and the case was assigned to Judge Dixon. Judge
was domiciled at the time of death? Dixon asked the parties to provide further briefing on the forum
selection clause, denied Yasuda’s petition for interlocutory appeal
HELD: on Judge Dunn’s decision finding the forum selection clause
unenforceable and finally granted Yamada’s motion for summary
(Snyder, J.) Yes. The succession and distribution of a judgment. The Second District Appellate Court then reversed
decedent’s personal estate is controlled by the law of the state Judge Dixon’s order, finding that the forum selection clause was
where the decedent was domiciled at the time of death. A enforceable ignoring the fact that no Japanese court had ever
domicile is a residence, actual or developing, with the lack of any
interpreted a pollution exclusion clause. The Second District also
intent to make a domicile elsewhere. These two elements must
exist together. One domicile cannot be lost until another is refused to acknowledge that the protection of insureds and injured
acquired. The facts reveal that Michael left his West Virginia third-parties was a fundamental public policy of the State of
residence with no plans to return and with the intent and purpose Illinois.
of making his permanent home in Pennsylvania. Therefore, at
the moment he and his wife arrived at their new home, their
JUSTICE COLWELL delivered the opinion of the court:
domicile became Pennsylvania. His leaving there, under the
circumstances, with the intention of returning there did not
change that fact. He did not revive his domicile in West Virginia Defendants, Yasuda Fire & Marine Insurance Company, Ltd.
as he had already sold his residence and left it with no intent to (Yasuda Fire), and The Yasuda Claims Service, Inc. (Yasuda
return. Accordingly, the decree must be reversed and remanded.
Claims) (collectively, defendants), appeal from an order of the
circuit court of Kane County granting summary judgment in favor
of plaintiffs, Yamada Corporation (Yamada) and Yamada
Discussion
The function of domicile is to enable the legal interests of a America, Inc. (Yamada America) (collectively, plaintiffs), on
person to be determined by a single law “particularly in matters count I of plaintiffs' first amended complaint. On appeal,
where continuity of application of the same law is defendants contend that the trial court erroneously refused to
important . . .” Under the Second Restatement of Conflicts, it is enforce a forum-selection clause, a choice-of-law clause, and a
suggested that domicile will not attach until a person has been
there for “a time,” which is some time more than “a moment’s pollution exclusion clause and erroneously struck portions of two
presence.” of defendants' affidavits. We reverse and remand with directions
based on the forum-selection clause.

Note that if a wife goes ahead of her husband to their new, FACTUAL BACKGROUND AND PROCEDURAL HISTORY
intended domicile, her arrival there before his may be satisfactory
to establish the husband’s new domicile.
On October 25, 1994, an air-operated diaphragm pump, incorporated in California, and its principal place of business was
manufactured by Yamada and purchased by CWC Fluids, Inc., in Los Angeles, California. Yasuda Claims handled claims for
d/b/a Culligan Water Conditioning (CWC), to pump acid and Yasuda Fire in the United States.
caustic solutions from two separate tanks to regenerate spent
water purification systems, failed. The pump's failure resulted in On December 12, 1996, plaintiffs filed a complaint for
the release of acid and caustic solutions that destroyed the declaratory judgment and other relief against defendants, and
metallic parts of the regeneration system enclosed within a defendants filed a section 2--619 (735 ILCS 5/2--619 (West 1996))
concrete retention wall. In addition, the release produced an acid motion to dismiss, relying primarily on the forum-selection clause.
vapor that traveled through the interior of CWC's building, Defendants also subsequently filed a declaratory judgment action
damaging electrical, mechanical, metallic, and other structures. against plaintiffs in the Tokyo District Court in Japan. The Tokyo
When the retention wall developed a crack, the acid also spilled District Court accepted jurisdiction over the parties and the
onto the main plant floor and into the drain to the city sewer subject matter of the suit.
system.
Plaintiffs then filed a motion to enjoin defendants from
On October 1, 1996, CWC filed a complaint in the circuit court of proceeding further in Japan, and Judge Melvin Dunn granted the
Cook County against plaintiffs, among others, alleging strict motion, stating that defendants were "enjoined temporarily from
product liability, breach of the implied warranty of proceeding in Tokyo, Japan with their declaratory judgment
merchantability, and negligence. CWC sought damages for action pending further order and proceedings" in the circuit court
property damage and business interruption. of Kane County. Defendants later filed an interlocutory appeal
(see 166 Ill. 2d R. 307(a)(1)). We affirmed the trial court's grant
Plaintiffs tendered their defense to Yasuda Fire pursuant to a of a preliminary injunction. See Yamada Corp. v. Yasuda Fire &
general liability claims-made policy covering the period from Marine Insurance, Ltd., No. 2--97--0506 (1997) (unpublished
January 5, 1995, to January 5, 1996, issued by Yasuda Fire to order under Supreme Court Rule 23).
Yamada. Yasuda Fire rejected the tender.
While the preliminary injunction was pending on appeal, Judge
Yamada was the named insured under the policy, and Yamada Dunn granted defendants' section 2--619 motion to dismiss
America, a distributor of Yamada's pumps, was listed as an pursuant to the forum-selection clause. In response, plaintiffs filed
additional insured. In addition, the policy included more than 200 a motion to reconsider. On June 25, 1997, Judge Dunn granted
other distributors as additional insureds, including distributors in plaintiffs' motion to reconsider.
38 of the states in the United States, Puerto Rico, Canada, Mexico,
Central America, South America, Europe, Australia, New Zealand, Defendants subsequently filed a motion to clarify the trial court's
Asia, and the Pacific Rim. order. On July 21, 1997, Judge Dunn entered an order stating the
basis for his ruling:
An endorsement to the policy specifically covered the pump at
issue in addition to 11 other air-operated diaphragm pumps. In "2. Enforcement of the forum selection clause would require the
addition, endorsement No. 10 to the policy contained a plaintiffs to proceed in Japan and under Japanese law which
forum-selection clause, entitled "Jurisdiction Clause," that would thereby create enormous inconvenience and expense for
provided: "It is agreed that coverage disputes arising out of this the plaintiffs.
insurance shall be subject to Japanese law and forum." The print 3. Illinois public policy requires that forum selection clause [sic]
size on endorsement No. 10 was the same size as the print size in be deemed unenforceable in that persons and entities living and
the rest of the endorsements. doing business in Illinois would be required to proceed in Japan
and under Japanese law where costs and attorney fees incurred
The policy was negotiated, underwritten, executed, and delivered would not be compensable.
in Japan, and Yamada made premium payments in yen to Yasuda 4. Illinois is an appropriate forum for resolving all disputes
Fire in Japan. Yamada America's president admitted in his between the parties regarding coverage under the Policy of
deposition that he had never purchased any general liability or Insurance."
products liability insurance on behalf of Yamada America, The trial court also granted plaintiffs leave to file a first amended
although he had purchased other types of insurance on Yamada complaint. In their first amended complaint, plaintiffs sought a
America's behalf. Instead, Yamada purchased general liability and determination regarding defendants' duty to defend and duty to
products liability insurance for Yamada America. indemnify in counts I and II. Plaintiffs also brought causes of
action for breach of contract in counts III and IV and causes of
Yamada was a Japanese corporation with its principal place of action under section 155 of the Illinois Insurance Code (215 ILCS
business in Tokyo, Japan. Yamada America was a subsidiary of 5/155 (West 1996)) and the Consumer Fraud and Deceptive
Yamada and an Illinois corporation with its principal place of Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et
business in Elgin, Illinois. Yasuda Fire was a Japanese insurance seq. (West 1996)) in counts V and VI.
company with its principal place of business in Tokyo, Japan.
Yasuda Claims was Yasuda Fire's wholly owned subsidiary
Thereafter, defendants filed a motion to reconsider the trial court's A party to the contract may not successfully argue inconvenience
June 25, 1997, and July 21, 1997, orders and alternatively sought as a reason for rendering a forum-selection clause unenforceable
certification to appeal. Judge Dunn denied the motion. if both parties freely entered into the agreement contemplating
such inconvenience should there be a dispute. Maher, 267 Ill. App.
Defendants then filed their answers and affirmative defenses to 3d at 74-75; see also M.S. Bremen, 407 U.S. at 16-18, 32 L. Ed.
plaintiffs' first amended complaint. Plaintiffs later filed a motion at 524-25, 92 S. Ct. at 1916-17; Calanca, 157 Ill. App. 3d at 88.
for summary judgment on count I of their first amended Furthermore, a forum-selection clause made during an
complaint, and defendants sought summary judgment on all arms-length negotiation between experienced and sophisticated
counts of the first amended complaint. businesspeople should be honored and enforced absent some
"compelling and countervailing reason" otherwise. Maher, 267 Ill.
On March 4, 1998, Judge Dixon requested that the parties further App. 3d at 75; see also M.S. Bremen, 407 U.S. at 12, 32 L. Ed. at
brief the forum-selection clause issue. After the parties briefed the 521, 92 S. Ct. at 1914; Calanca, 157 Ill. App. 3d at 88.
issue, this court denied a petition for leave to appeal the
forum-selection clause issue, and Judge Dixon indicated that he Neither Judge Dunn nor Judge Dixon ruled that plaintiffs would
would consider the issue as part of the motions for summary be so seriously inconvenienced that they would be deprived of
judgment. Judge Dixon then granted plaintiffs' motion. Regarding their day in court if this action proceeded in Japan. Judge Dunn,
the forum-selection clause, Judge Dixon stated that Judge Dunn however, apparently believed that Japan would be inconvenient
had previously ruled that the clause was unenforceable and that when he ruled that "[e]nforcement of the forum selection clause
this court had declined to review the issue on an interlocutory would require the plaintiffs to proceed in Japan and under
basis. Defendants appealed. Japanese law which would thereby create enormous
inconvenience and expense for the plaintiffs."
STANDARD OF REVIEW
To determine whether a forum-selection clause is unreasonable,
The disposition of a summary judgment motion is not this court should consider the following factors: (1) which law
discretionary and the standard of review is de novo. Flint v. Court governs the formation and construction of the contract; (2) the
Appointed Special Advocates of Du Page County, Inc., 285 Ill. residency of the parties involved; (3) the place of execution
App. 3d 152, 162 (1996). In addition, an appeal from a final and/or performance of the contract; (4) the location of the parties
judgment draws into issue all prior nonfinal orders that produced and witnesses participating in the litigation; (5) the inconvenience
the final judgment. United States Fire Insurance Co. v. Aetna Life to the parties of any particular location; and (6) whether the clause
& Casualty, 291 Ill. App. 3d 991, 996 (1997). was equally bargained for. Calanca, 157 Ill. App. 3d at 88. By
applying these six factors to the present case, it is apparent that
ANALYSIS plaintiffs did not meet their burden of proving that the
forum-selection clause was so seriously unreasonable that they
A forum-selection clause in a contract is prima facie valid and would be deprived of their day in court.
should be enforced unless the opposing party shows that
enforcement would contravene the strong public policy of the 1. Formation and Construction
state in which the case is brought (Maher & Associates, Inc. v.
Quality Cabinets, 267 Ill. App. 3d 69, 74 (1994)), or that the The policy contains an express choice-of-law provision
chosen forum would be so seriously inconvenient for trial that the designating Japanese law as the controlling law. In addition,
opposing party would be deprived of his or her day in court. M.S. absent an express choice-of-law provision, insurance policy
Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 15, 18, 32 L. Ed. provisions are generally " 'governed by the location of the subject
513, 520, 523, 525, 92 S. Ct. 1907, 1913, 1916, 1917 (1972); matter, the place of delivery of the contract, the domicile of the
Calanca v. D & S Manufacturing Co., 157 Ill. App. 3d 85, 87-88 insured or of the insurer, the place of the last act to give rise to a
(1987). valid contract, the place of performance, or other place bearing a
rational relationship to the general contract.' " Lapham-Hickey
I. MANDATORY FORUM-SELECTION CLAUSE Steel Corp. v. Protection Mutual Insurance Co., 166 Ill. 2d 520,
526-27 (1995), quoting Hofeld v. Nationwide Life Insurance Co.,
The first issue is whether the clause is mandatory or permissive. 59 Ill. 2d 522, 528 (1975).
The clause at issue provides that "coverage disputes arising out of
this insurance shall be subject to Japanese law and forum." The In the present case, the policy covered air-powered diaphragm
word "shall" indicates that Japan is the exclusive forum. See pumps distributed around the world. The policy was negotiated,
Calanca, 157 Ill. App. 3d at 85 (stating that word "shall" in executed, delivered, and paid for in Japan. The insurer, Yasuda
forum-selection clause means the stated forum is exclusive). Fire, was a Japanese corporation, and Yamada, the named insured,
was a Japanese corporation. The policy, however, also covered
II. INCONVENIENCE more than 200 additional insureds around the world. Illinois' only
connection to the policy is the fact that 3 of the more than 200
additional insureds, including Yamada America, were located in
Illinois, and the pump at issue in the CWC complaint allegedly one uniform law leading to certainty, consistency, and
failed in Illinois. As a result, we believe that Japanese law should convenience.
govern the formation and construction of the contract to "obtain a
consistent interpretation" of the policies (see Lapham-Hickey, 166 6. Bargaining Power
Ill. 2d at 527). A contrary result would open up these policies to
possibly hundreds of different views of the law, depending on the There is no evidence in the record that the policy was not equally
site of the risk. bargained for. Based on the number of products covered, the
complexity of those products, the number of additional insureds,
2. Residency and the location of distributors worldwide, it is safe to presume
that Yamada is a sophisticated insured.
A corporation is a resident of the state or country under whose
laws it was organized. LeBlanc v. G.D. Searle & Co., 178 Ill. App. Based on the factors enumerated in Calanca, there is little
3d 236, 238 (1988). Consequently, Yamada is a resident of Japan, evidence that enforcement of the forum-selection clause would be
Yamada America is a resident of Illinois, Yasuda Fire is a unreasonable. Furthermore, there is no evidence in the record that
resident of Japan, and Yasuda Claims is a resident of California. would demonstrate that plaintiffs would be denied their day in
Again, Illinois' only tie is through Yamada America, an additional court.
insured under the policy.
III. PUBLIC POLICY
3. Execution and Performance
Plaintiffs also argue that the forum-selection clause violates
The policy was executed in Japan. Performance, on the other hand, Illinois public policy. According to plaintiffs, "[t]he fundamental
was to occur all over the world. public policy at stake in the present action is to protect insureds
and injured third parties in an effort to make sure that there is
4. Location of Parties and Witnesses coverage available for a given claim," citing DC Electronics, Inc.
v. Employers Modern Life Co., 90 Ill. App. 3d 342 (1980), and
Two of the parties participating in the litigation are located in Walrus Manufacturing Co. v. New Amsterdam Casualty Co., 184
Japan, one is located in California, and one is located in Illinois. F. Supp. 214 (S. D. Ill. 1960).
In addition, no witnesses are necessary.
DC Electronics, however, does not stand for this proposition. The
The entire complaint rests on count I regarding defendants' duty only reference to public policy in DC Electronics is the following:
to defend. Without a duty to defend, there is no duty to indemnify. "Any attempt by [the insurance company] to dilute or diminish
Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 statutory provisions applicable to its contract of insurance is
Ill. 2d 384, 398 (1993). Similarly, without a duty to defend, there contrary to public policy, and any conflict between statutory and
can be no breach of contract or violation of the Consumer Fraud policy provisions will be resolved in favor of the statutory
Act or section 155 of the Illinois Insurance Code. provisions." DC Electronics, 90 Ill. App. 3d at 348. Plaintiffs in
the present case do not argue that Yasuda Fire's policy provisions
To determine whether an insurer has a duty to defend an insured, dilute or diminish any statutory provisions in the Illinois
the court must compare the allegations of the underlying Insurance Code. In contrast, in DC Electronics, the insurance
complaint to the policy language, and if the court determines that company argued that the policy language requiring a renewal
these allegations fall within or potentially within the policy's premium to have been paid within 31 days of an expiration date
coverage, the insurer has a duty to defend. Cincinnati Cos. v. applied even though the applicable section of the Illinois
West American Insurance Co., 183 Ill. 2d 317, 323 (1998). Thus, Insurance Code extended the period of payment to six months.
the determination of the duty to defend in this case is a legal DC Electronics, 90 Ill. App. 3d at 348.
question that requires no witnesses.
Likewise, Walrus Manufacturing does not stand for the
5. Inconvenience of Location above-stated proposition. Besides the pronouncement that "[t]he
public policy of Illinois places domestic corporations and foreign
Regarding inconvenience, Illinois is inconvenient for Yasuda Fire. corporations on the same basis" (Walrus Manufacturing, 184 F.
Japan, however, is not inconvenient to Yamada, Yasuda Fire, or Supp. at 224), the Walrus Manufacturing court did not address
Yasuda Claims. Additionally, Yamada America's directors reside Illinois public policy. That case, however, does contain a quote
in Japan and hold meetings at Yamada's headquarters in Japan. from American Central Insurance Co. v. Simpson, 43 Ill. App. 98
Moreover, Yamada America was not responsible for purchasing (1890), regarding an unidentified statute in which the court
general liability insurance; rather, Yamada purchased the general stated:
liability insurance policy on Yamada America's behalf.
Furthermore, the clause provides Yamada with the assurance that " 'The object and purpose of that legislation is that persons in this
its products distributed around the world will be covered under State holding insurance by foreign companies shall not be
compelled to resort to other jurisdictions and travel long distances
from the place where the fire occurs, and be at expense in citing Emerson v. American Bankers Insurance Co., 223 Ill. App.
procuring his witnesses to travel long distances; that the 3d 929 (1992). Emerson, however, does not even mention Illinois
protection of a citizen in this State ought not to be destroyed by public policy. Additionally, Emerson does not contain the
implication; and the same reason, that a party cannot be statement of law contained in plaintiffs' brief. The only
compelled to go away from the State to be subjected to an connection Emerson has to the Illinois Insurance Code is the fact
examination, should preclude the company from requiring that that the plaintiffs therein sought damages under section 155 of the
one insured should go out of the State for the purpose of Code. See Emerson, 223 Ill. App. 3d at 932.
arbitration and to submit his proofs. A clause in a policy that
required such an act as a condition precedent to a right of Plaintiffs additionally state that "the Illinois common law has a
recovery would be against public policy and void.' " Walrus strong public policy to protect insureds and injured parties, who
Manufacturing, 184 F. Supp. at 219, quoting American Central, have claims for which coverage had been intended." Plaintiffs cite
43 Ill. App. at 104. no authority in support of this statement. As we previously stated,
This quotation, however, does not address the alleged public arguments without citation to authority do not merit consideration
policy of protecting insureds and injured third parties to ensure on appeal. People ex rel. Aldworth, 112 Ill. 2d at 511.
insurance coverage.
Finally, plaintiffs assert that the forum-selection clause should not
In fact, there is no public policy in Illinois ensuring that there is be enforced because Japanese law allegedly does not provide for
insurance coverage for insureds and injured third parties. certain remedies found under Illinois law. For instance, Japanese
Admittedly, Illinois courts liberally construe the insurance policy law allegedly does not provide for fees, costs, and exemplary
and the underlying complaint in favor of the insured when damages as provided for under section 155 of the Illinois
determining the duty to defend. Federated Mutual Insurance Co. v. Insurance Code. In addition, Japanese law allegedly does not have
State Farm Mutual Automobile Insurance Co., 282 Ill. App. 3d remedies similar to the statutory remedies available to consumers
716, 725 (1996). Similarly, Illinois courts liberally construe any under the Consumer Fraud Act. Plaintiffs then argue that, as a
doubts as to coverage in favor of the insured, especially when the result, Japanese law does not afford the same protections to
insurer seeks to avoid coverage based on an exclusion in the plaintiffs as Illinois' law. On July 21, 1997, Judge Dunn agreed
policy. Oakley Transport, Inc. v. Zurich Insurance Co., 271 Ill. with this argument when he ruled that "Illinois public policy
App. 3d 716, 722 (1995). Conversely, courts should not torture requires that forum selection clause [sic] be deemed
the language of a policy to find coverage where none clearly unenforceable in that persons and entities living and doing
exists. Cohen Furniture Co. v. St. Paul Insurance Co. of Illinois, business in Illinois would be required to proceed in Japan and
214 Ill. App. 3d 408, 411 (1991). An Illinois court simply cannot under Japanese law where costs and attorney fees incurred would
find insurance coverage where no insurance coverage exists; as a not be compensable."
result, there is no public policy in Illinois ensuring insurance
coverage. The fact that an international transaction may be subject to laws
and remedies different from or less favorable than those of the
Additionally, there is no public policy in Illinois disfavoring United States is not alone a valid basis to deny the enforcement of
forum-selection clauses. See Dace International, Inc. v. Apple forum-selection clauses. Bonny v. Society of Lloyd's, 3 F.3d 156,
Computer, Inc., 275 Ill. App. 3d 234, 239 (1995). Likewise, there 162 (7th Cir. 1993). The seventh circuit also stated:
is no public policy in Illinois against the pollution exclusion in
insurance policies. " 'It defies reason to suggest that a plaintiff may circumvent forum
selection ... merely by stating claims under laws not recognized
Plaintiffs further argue that the enforcement of the by the forum selected in the agreement. A plaintiff would simply
forum-selection clause would violate public policy because no have to allege violations of his country's tort law or his country's
Japanese court has ever interpreted a pollution exclusion clause. statutory law or his country's property law in order to render
Plaintiffs cite no authority for the proposition that a public policy nugatory any forum selection clause that implicitly or explicitly
exists in Illinois to ensure that insurance contract provisions are required the application of the law of another jurisdiction. We
interpreted by courts experienced in construing the clause at issue. refuse to allow a party's solemn promise to be defeated by artful
Arguments without citation to authority do not merit pleading.' " (Emphasis omitted.) Hugel v. Corporation of Lloyd's,
consideration on appeal. People ex rel. Aldworth v. Dutkanych, 999 F.2d 206, 211 (7th Cir. 1993), quoting Roby v. Corporation
112 Ill. 2d 505, 511 (1986). In addition, Illinois does not have a of Lloyd's, 996 F.2d 1353, 1360 (2d Cir. 1993).
public policy that dictates that only courts with experience may In Hoes of America, Inc. v. Hoes, 493 F. Supp. 1205 (C.D. Ill.
rule upon issues of law. In fact, Illinois courts address issues of 1979), the United States District Court for the Central District of
first impression all the time. Illinois found that the plaintiff in that action, an Illinois
corporation that filed suit in the federal court in Illinois, accepted
Plaintiffs also argue that "the protection of insureds is a a trial without a jury and no punitive damages in Germany when
fundamental Illinois public policy [] manifest[ed] in caselaw [sic] it entered into a contract that contained a forum-selection clause
and statute" and state that "Illinois[] has a comprehensive designating Bremen, Germany, as the forum. Based on the
statutory scheme for insurers under the Illinois Insurance Code,"
foregoing, we find that the enforcement of the forum-selection FACTS:
clause in this case would not violate Illinois public policy.

Paul Schekner acting through his wife and attorney-in-fact, filed


We also reject plaintiffs' reliance on Maher and Associates, Inc. v. with the CFI of Rizal a complaint against Gemperle, for the
Quality Cabinets, 267 Ill. App. 3d 69 (1994), to argue that we enforcement of Schenkers’ alleged initial subscription to the
may void the forum-selection clause if it violated fundamental shares of stock of the Philippine-Swiss Trading Co. As a response,
Illinois public policy. While we agree that plaintiffs' statement is Gemperle filed an action against Schenker on the allegation that
the latter had caused to be published some allegations which are
a correct statement of the law, we find Maher distinguishable. In
deragotory to his reputation. The CFI dismissed the case against
Maher, the plaintiff relied on the Sales Representative Act (820 Paul Schenker for lack of jurisdiction, he being a Swiss Citizen,
ILCS 120/0.01 et seq. (West 1992)), and section 2 of that act over the person of the defendant because he is beyond the reach
provided that "[a]ny provision in any contract between a sales of the magistracy of the Philippine Courts.
representative and principal purporting to waive any of the
provisions of this Act shall be void" (820 ILCS 120/2 (West
ISSUE:
1992)). Based on this provision, the court found that the
legislature was announcing fundamental public policy protecting Whether or not the CFI acquired jurisdiction over the person of
sales representatives. In the present case, plaintiffs do not direct Schenker
us to a similar provision in the Illinois Insurance Code, and we
were unable to locate a similar provision ourselves.
HELD:

We note that plaintiffs also argue that defendants' reliance on Acquisition of jurisdiction upon non-resident through service of
federal case law is inappropriate because the cited federal cases summons upon attorney-in-fact.
follow the strictly federal common-law test for applying -Where a Swiss citizen, residing in Switzerland, was served with
forum-selection clauses, a test that plaintiffs describe as a more summons through his wife, who was residing here and who was
onerous standard. One of the cases plaintiffs cite for this his representative and attorney-in-fact in a prior case, which was
apparently filed at her behest in the aforementioned capacity, the
proposition is the M.S. Bremen case. Illinois courts, however,
lower courts acquired jurisdiction over the non-resident husband
adopted the analysis in that case long ago and have since relied on by means of said service of summons.
federal case law when interpreting forum-selection clauses. See,
e.g., Calanca, 157 Ill. App. 3d 85. Thus, we reject plaintiffs'
argument that the defendants' reliance on federal case law is #10 KAZUHIRO HASEGAWA and NIPPON
inappropriate. ENGINEERING CONSULTANTS CO., LTD.,vs MINORU
KITAMURA

Plaintiffs further argue that defendants should be estopped from G.R. No. 149177 November 23, 2007
relying on the forum-selection clause because defendants
allegedly failed to reserve their rights or seek a declaratory
judgment. Where a complaint presents a case of potential FACTS:
coverage, the insurer must defend under a reservation of right or
seek a declaratory judgment. John Burns Construction Co. v.
Nippon Engineering Consultants (Nippon), a Japanese
Indiana Insurance Co., 299 Ill. App. 3d 169, 175 (1998). An consultancy firm providing technical and management support in
insurer that fails to exercise either of these two options will be the infrastructure projects national permanently residing in the
estopped from later raising any policy defenses. John Burns Philippines. The agreement provides that Kitamaru was to extend
Construction Co., 299 Ill. App. 3d at 175. The forum-selection professional services to Nippon for a year. Nippon assigned
Kitamaru to work as the project manager of the
clause, however, is not a policy defense. As a result, we reject this
Southern Tagalog Access Road (STAR) project. When the STAR
argument. project was near completion, DPWH engaged the consultancy
services of Nippon, this time for the detailed engineering &
Based upon the foregoing, we reverse the judgment of the circuit construction supervision of the Bongabon-Baler Road
court of Kane County granting summary judgment in plaintiffs' Improvement (BBRI) Project. Kitamaru was named as the project
manger in the contract.
favor on count I of the first amended complaint and remand this
matter to the circuit court with directions to dismiss this matter
pursuant to the forum-selection clause. Hasegawa, Nippon’s general manager for its International
Division, informed Kitamaru that the company had no more
Reversed and remanded with directions. intention of automatically renewing his ICA. His services would
be engaged by the company only up to the substantial completion
of the STAR Project.
GEIGER and THOMAS, JJ., concur.

#9 GEMPERLE VS. SCHENKER GR NO. L-1816 Kitamaru demanded that he be assigned to the BBRI project.
Nippon insisted that Kitamaru’s contract was for a fixed term that
had expired. Kitamaru then filed for specific performance & subject matter of the claim, the movant must show that the court
damages w/ the RTC of Lipa City. Nippon filed a MTD. or tribunal cannot act on the matter submitted to it because no
lawgrants it the power to adjudicate the claims.

Nippon’s contention: The ICA had been perfected in Japan &


executed by & between Japanese nationals. Thus, the RTC of In the instant case, Nippon, in its MTD, does not claim that the
Lipa City has no jurisdiction. The claim for improper RTC is not properly vested by law w/ jurisdiction to hear the
pre-termination of Kitamaru’s ICA could only be heard & subject controversy for a civil case for specific performance &
ventilated in the proper courts of Japan following the principles of damages is one not capable of pecuniary estimation & is properly
lex loci celebrationis & lex contractus. cognizable by the RTC of Lipa City.What they rather raise as
grounds to question subject matter jurisdiction are the principles
of lex loci celebrationis and lex contractus, and the “state of the
The RTC denied the motion to dismiss. The CA ruled hat the most significant relationship rule.” The Court finds the invocation
principle of lex loci celebrationis was not applicable to the case, of these grounds unsound.
because nowhere in the pleadings was the validity of the written
agreement put in issue. It held that the RTC was correct in
applying the principle of lex loci solutionis. Lex loci celebrationis relates to the “law of the place of the
ceremony” or the law of the place where a contract is made. The
doctrine of lex contractus or lex loci contractusmeans the “law
ISSUE: of the place where a contract is executed or to be performed.” It
controls the nature, construction, and validity of the contract and
it may pertain to the law voluntarily agreed upon by the parties or
the law intended by them either expressly or implicitly. Under the
Whether or not the subject matter jurisdiction of Philippine courts
“state of the most significant relationship rule,” to ascertain what
in civil cases for specific performance & damages involving
state law to apply to a dispute, the court should determine which
contracts executed outside the country by foreign nationals may
state has the most substantial connection to the occurrence and the
be assailed on the principles of lex loci celebrationis, lex
parties. In a case involving a contract, the court
contractus, “the state of the most significant relationship rule,” or
should consider where the contract was made, was negotiated,
forum non conveniens.
was to be performed, and the domicile, place of business, or place
of incorporation of the parties.This rule takes into account several
contacts and evaluates them according to their relative importance
HELD: with respect to the particular issue to be resolved.
NO. In the judicial resolution of conflicts problems, 3 consecutive
phases are involved: jurisdiction, choice of law, and recognition
and enforcement of judgments. Jurisdiction & choice of law are 2 Since these 3 principles in conflict of laws make reference to the
distinct concepts.Jurisdiction considers whether it is fair to cause law applicable to a dispute, they are rules proper for the 2nd phase,
a defendant to travel to this state; choice of law asks the further the choice of law. They determine which state's law is to be
question whether the application of a substantive law w/c will applied in resolving the substantive issues of a conflicts
determine the merits of the case is fair to both parties. The power problem. Necessarily, as the only issue in this case is that of
to exercise jurisdiction does notautomatically give a jurisdiction, choice-of-law rules are not only inapplicable but also
state constitutional authority to apply forum law. While not yet called for.
jurisdiction and the choice of the lex foriwill often coincide, the
“minimum contacts” for one do not always provide the necessary
“significant contacts” for the other. The question of whether the Further, Nippon’s premature invocation of choice-of-law rules is
law of a state can be applied to a transaction is different from the exposed by the fact that they have not yet pointed out any conflict
question of whether the courts of that state have jurisdiction to between the laws of Japan and ours. Before determining which
enter a judgment. law should apply, 1st there should exist a conflict of laws
situation requiring theapplication of the conflict of laws
rules. Also, when the law of a foreign country is invoked to
In this case, only the 1st phase is at issue—jurisdiction. provide the proper rules for the solution of a case, the existence of
Jurisdiction, however, has various aspects. For a court to validly such law must be pleaded and proved.
exercise its power to adjudicate a controversy, it must have
jurisdiction over the plaintiff/petitioner, over the
defendant/respondent, over the subject matter, over the issues of It should be noted that when a conflicts case, one involving a
the case and, in cases involving property, over the res or the thing foreign element, is brought before a court or administrative
w/c is the subject of the litigation.In assailing the trial court's agency, there are 3 alternatives open to the latter in disposing of it:
jurisdiction herein, Nippon is actually referring to subject matter (1) dismiss the case, either because of lack of jurisdiction or
jurisdiction. refusal to assume jurisdiction over the case; (2) assume
jurisdiction over the case and apply the internal law of the forum;
or (3) assume jurisdiction over the case and take into account or
Jurisdiction over the subject matter in a judicial proceeding is apply the law of some other State or States. The court’s power to
conferred by the sovereign authority w/c establishes and hear cases and controversies is derived from the Constitution and
organizes the court. It is given only by law and in the manner the laws. While it may choose to recognize laws of foreign
prescribed by law. It is further determined by the allegations of nations, the court is not limited by foreign sovereign law short of
the complaint irrespective of whether the plaintiff is entitled to all treaties or other formalagreements, even in matters regarding
or some of the claims asserted therein. To succeed in its motion rights provided by foreign sovereigns.
for the dismissal of an action for lack of jurisdiction over the
Neither can the other ground raised, forum non conveniens, be and with the approval of, the Government of India. (Affidavit of
used to deprive the RTC of its jurisdiction. 1st, it is not a proper John MacDonald ("MacDonald Aff.") at 2). UCIL was
basis for a motion to dismiss because Sec. 1, Rule 16 of the Rules incorporated under Indian law in 1934. 50.9% of its stock is
of Court does not include it as a ground. 2nd, whether a suit owned by the defendant, Union Carbide Corporation, a New York
should be entertained or dismissed on the basis of the said corporation. (MacDonald Aff. at 1). Methyl isocyanate (MIC), a
doctrine depends largely upon the facts of the particular case and highly toxic gas, is an ingredient in the production of both Sevin
is addressed to the sound discretion of the RTC. In this case, the and Temik. On the night of the tragedy MIC leaked from the plant
RTC decided to assume jurisdiction. 3rd, the propriety of in substantial quantities for reasons not yet determined.
dismissing a case based on this principle requires a factual
determination; hence, this conflicts principle is more properly The prevailing winds on the early morning of December 3, 1984
considered a matter of defense. were from Northwest to Southeast. They blew the deadly gas into
the overpopulated hutments adjacent to the plant and into the
most densely occupied parts of the city. The results were
horrendous. Estimates of deaths directly attributable to the leak
range as high as 2,100. No one is sure exactly how many perished.
CARBIDE Over 200,000 people suffered injuriessome serious and permanent
471 US 462 some mild and temporary. Livestock were killed and crops
damaged. Businesses were interrupted.

On December 7, 1984 the first lawsuit was filed by American


634 F. Supp. 842 (1986)
lawyers in the United States on behalf of thousands of
Indians. Dawani et al. v. Union Carbide Corp., S.D.W.Va.
In re UNION CARBIDE CORPORATION GAS PLANT (84-2479). Since then 144 additional actions have been
DISASTER AT BHOPAL, INDIA IN DECEMBER, 1984. commenced in federal courts in the United States. The actions
Misc. No. 21-38 (JFK).
have all been joined and assigned by the Judicial Panel on
Multidistrict Litigation to the Southern District of New York by
United States District Court, S.D. New York. order of February 6, 1985, 601 F. Supp. 1035.
May 12, 1986.

As Amended June 10, 1986. The individual federal court complaints have been superseded by
a consolidated complaint filed on June 28, 1985.
*843 Robins, Zelle, Larson & Kaplan, Minneapolis, Michael V.
Ciresi, Bruce A. Finzen, Roberta B. Walburn, D.S. Sastri of The Indian Government on March 29, 1985 enacted legislation,
counsel. Barrett, Smith, Schapiro, Simon & Armstrong, New the Bhopal Gas Leak Disaster (Processing of Claims) Act (21 of
York City, Gerald A. Novack, of counsel, for the Union of India. 1985) ("Bhopal Act"), providing that the Government of India has
the exclusive right to represent Indian plaintiffs in India and
Waite, Schneider, Bayless & Chesley Co., L.P.A., Cincinnati, elsewhere in connection with the tragedy. Pursuant to the Bhopal
Ohio, Stanley M. Chesley, Phillip B. Allen, Jan Levien, of Act, the Union of India, on April 8, 1985, filed a complaint with
counsel, Bailey & Broder, New York City, F. Lee Bailey, Michael this Court setting forth claims for relief similar to those in the
C. Zwal, of counsel, for individual plaintiffs. consolidated complaint of June 28, 1985.

Hoffinger, Friedland, Dobrish, Bernfeld & Hasen, New York City, By order of April 25, 1985 this Court established a Plaintiffs'
Jack S. Hoffinger, of counsel, Liaison Counsel. Executive Committee, comprised of F. Lee Bailey and Stanley M.
Chesley, Esqs., who represented individual plaintiffs and Michael
V. Ciresi, Esq., whose firm represents the Union of India. Jack S.
Kelley Drye & Warren, New York City, Bud G. Holman, William
Hoffinger, Esq., who represents individual plaintiffs, was
A. Krohley, Lisa E. Cleary, of counsel, for defendant.
appointed liaison counsel for the Plaintiffs' Executive
Committee.[1]
Christic Institute, Washington, D.C., Rob Hager, Shelley D.
Hayes, of counsel, for Amicus Curiae.
On September 24, 1985, pursuant to the Bhopal Act, the Central
Government of India framed a "scheme" for the Registration and
Processing of Claims arising out of the disaster. According to the
Union of India's *845 counsel, over 487,000 claims have been
*844 OPINION and ORDER filed in India pursuant to the "scheme."

KEENAN, District Judge: There presently are 145 actions filed in the United States District
Court for the Southern District of New York under the Judicial
Panel for Multidistrict Litigation's order of February 6, 1985,
involving approximately 200,000 plaintiffs.
FACTUAL BACKGROUND
Before this Court is a motion by the defendant Union Carbide
On the night of December 2-3, 1984 the most tragic industrial Corporation ("Union Carbide") to dismiss the consolidated action
disaster in history occurred in the city of Bhopal, state of Madhya on the grounds of forum non conveniens.
Pradesh, Union of India. Located there was a chemical plant
owned and operated by Union Carbide India Limited ("UCIL").
The plant, situated in the northern sector of the city, had
numerous hutments adjacent to it on its southern side which were DISCUSSION
occupied by impoverished squatters. UCIL manufactured the
pesticides Sevin and Temik at the Bhopal plant at the request of,
The doctrine of forum non conveniens allows a court to decline defendant is `amenable to process' in the other
jurisdiction, even when jurisdiction is authorized by a general jurisdiction." Piper at 254, n. 22, *846 102 S. Ct. at 265, n. 22,
venue statute. In support of its position that the consolidated quoting Gilbert 330 U.S. at 506-507, 67 S. Ct. at
action before the Court should be transferred to a more 842. Gilbert states that the doctrine of forum non
convenient forum within the Union of India pursuant to this conveniens "presupposes at least two forums in which the
doctrine, Union Carbide relies on the United States Supreme defendant is amenable to process."
Court's decisions in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.
Ct. 839, 91 L. Ed. 1055 (1947) and Piper Aircraft Co. v. Extending the limited inquiry of Gilbert, the Piper Court delved
Reyno, 454 U.S. 235, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981). into the relevance of the substantive and procedural differences in
The plaintiffs cite numerous other lower United States federal law which would be applied in the event a case was transferred on
court cases in their briefs and seek to distinguish the Supreme the grounds of forum non conveniens. The Piper Court
Court's decisions from this case. Of course, Gilbert and Piper are determined that it was theoretically inconsistent with the
the touchstones in sorting out and examining the contentions of underlying doctrine of forum non conveniens, as well as grossly
both sides to this motion on the various factors bearing on impractical, to consider the impact of the putative transferee
convenience. forum's law on the plaintiff in its decision on a forum non
conveniens motion: "[I]f conclusive or substantial weight were
Piper teaches a straightforward formulation of the doctrine given to the possibility of a change in law, the forum non
of forum non conveniens. A district court is advised to determine conveniens doctrine would become virtually useless." Piper 454
first whether the proposed alternative forum is "adequate." This U.S. at 250, 102 S. Ct. at 263.[2]
inquiry should proceed in the order followed below. Then, as a
matter within its "sound discretion," Piper at 257, 102 S. Ct. at The Court listed numerous practical considerations which led to
266, the district court should consider relevant public and private its conclusion that an unfavorable change in law for plaintiff was
interest factors, and reasonably balance those factors, in order to not a relevant factor in the forum analysis. First, the Court
determine whether dismissal is favored. This Court will approach observed that if the chance of a change in law were given
the various concerns in the same direct manner in substantial weight, choice of law questions would "become
which Piper and Gilbert set them out. extremely important." Piper at 251, 102 S. Ct. at 263. U.S. courts
would "have to compare the rights, remedies, and procedures
At this juncture, it would be appropriate to discuss the available" within the two proposed alternative forums, to
presumptions on a forum non conveniens motion. In Piper, the determine whether a disadvantageous change in law would occur
Court discussed its earlier finding in Koster v. Lumbermens upon transfer. Id. Since "[t]he doctrine of forum non
Mutual Casualty Co., 330 U.S. 518, 67 S. Ct. 828, 91 L. Ed. 1067 conveniens, however, is designed in part to help courts avoid
(1947), which suggested that a plaintiff's choice of forum was conducting complex exercises in comparative law," the change in
entitled to great deference when the forum chosen was the home law analysis would subvert the doctrine itself. Id. Thus, a court
of the plaintiff. This presumption was based on the fact that the engaged in the inquiry regarding the existence and adequacy of an
choice of the home forum indicated a reasonable assumption that alternative forum should not hinge its decision on an unfavorable
the choice was convenient. Koster at 524, 67 S. Ct. at 831. change in law.[3]
Conversely, the Piper Court found:
Another practical concern relating to the "change in law" inquiry
was discussed by the Piper court. Based on the liberality of
United States federal law as compared to much foreign law with
When the plaintiff is foreign, however, this respect to availability of strict liability for tort, malleable and
assumption is much less reasonable. Because diverse choice of law rules among the 50 states, availability of
the central purpose of any forum non jury trials, contingent fee arrangements and extensive discovery
conveniens inquiry is to ensure that the trial is provisions, the Court observed that a change of forum might
convenient, a foreign plaintiff's choice deserves frequently involve an unfavorable change of law for foreign
less deference. plaintiffs suing American defendants. Piper at 252, n. 18, 102 S.
Ct. at 264, n. 18. Consequently, if the unfavorable change in law
Piper 454 U.S. at 256, 102 S. Ct. at 266 (footnote omitted). were a major factor in the analysis:

In the case now before the Court, in which the plaintiffs,


including the Union of India, are foreign, and share a home forum
which is not the instant forum, the assumption that this forum is [T]he American courts, which are already
convenient is not completely reasonable. The foreign plaintiffs' extremely attractive to foreign plaintiffs, would
choice of the United States forum "deserves less deference" than become even more attractive. The flow of
would be accorded a United States citizen's choice. This Court litigation into the United States would increase
will apply the presumption in favor of plaintiffs' choice of forum and further congest already crowded courts.
with "less than maximum force." Piper at 261, 102 S. Ct. at
268. See note 23 at 864, infra. Piper at 252, 102 S. Ct. at 264 (footnotes omitted).

At the point, however, where the possible change in law would


provide "no remedy at all" to plaintiff, a court may conclude that
1. Preliminary Considerations. no adequate alternative exists. As the Piper Court observed, it did
not hold that:
"At the outset of any forum non conveniens inquiry, the court
must determine whether there exists an alternative
forum." Piper at 254, n. 22, 102 S. Ct. at 265, n. 22. The elements
[T]he possibility of an unfavorable change in
of that inquiry are set forth in Piper. First, the Court said,
law should never be a relevant consideration in
"[o]rdinarily, this requirement will be satisfied when the
a forum non conveniens inquiry. Of course, if inaccessibility of legal information and legal services,
the remedy provided by the alternative forum is burdensome court filing fees and limited innovativeness with
so clearly inadequate or unsatisfactory that it is reference to legal practice and education. (Galanter Aff. at 12).
no remedy at all, the unfavorable change in law
may be given substantial weight; the district On the question of innovativeness, Mr. Palkhivala responds with
court may conclude that dismissal would not be numerous examples of novel treatment of complex legal issues by
in the interests of justice. the Indian Judiciary.[5] In the words of the former ambassador of
India to the United States, "a legal system is not *848 a structure
Piper at 254, 102 S. Ct. at 265 (emphasis in original) (footnote of fossils but is a living organism which grows through the
omitted). Thus, while it *847 is not a "major factor" in the judicial process and statutory enactments." (Palkhavala Aff. at 3).
analysis, a court must at least consider the effect on plaintiffs of a The examples cited by defendant's experts suggest a developed
change in law upon transfer. and independent judiciary. Plaintiffs present no evidence to
bolster their contention that the Indian legal system has not
To a great extent, the plaintiffs in this case argue that Indian sufficiently emerged from its colonial heritage to display the
courts do not offer an adequate forum for this litigation by virtue innovativeness which the Bhopal litigation would demand. Their
of the relative "procedural and discovery deficiencies [which] claim in this regard is not compelling.
would thwart the victims' quest for" justice. (Memorandum in
Opposition by Plaintiffs' Executive Committee ("Memo in Opp.")
at 2). The defendant disputes this contention.
B. Endemic Delays in the Indian Legal System.
Plaintiffs' preliminary concern, regarding defendant's amenability
to process in the alternative forum, is more than sufficiently met Galanter discusses the problems of delay and backlog in Indian
in the instant case. Union Carbide has unequivocally courts. Indeed, it appears that India has approximately one-tenth
acknowledged that it is subject to the jurisdiction of the courts of the number of judges, per citizen, as the United States,[6] and that
India (Defendant's Memorandum in Reply filed December 20, postponements and high caseloads are widespread. Galanter urges
1985 ("Reply Memo") at 8); (oral argument January 3, 1986, that the backlog is a result of Indian procedural law, which allows
transcript at 29, comment of Bud Holman, counsel for Union for adjournments in mid-hearing, and for multiple interlocutory
Carbide). Union Carbide is definitely amenable to process in and final appeals. Numerous appeals and "[c]onsiderable delay
India. [are] caused by the tendency of courts to avoid the decision of all
the matters in issue in a suit, on the ground that the suit could be
Beyond this initial test, plaintiffs and amicus curiae[4] argue that disposed of on a preliminary point." (Galanter Aff. at 17; 18-20,
the Indian legal system is inadequate to handle the Bhopal 21, quoting Indian Law Commission, 54th Report (1973) pp.
litigation. In support of this position, plaintiffs have submitted the 12-13).
affidavit of Professor Marc S. Galanter of the University of
Wisconsin Law School. Professor Galanter's credentials are This Court acknowledges that delays and backlog exist in Indian
impressive; he was a Fulbright Scholar at the Faculty of Law of courts, but United States courts are subject to delays and backlog,
Delhi University and specializes in South Asian Studies at the too. See Remarks of Honorable Warren E. Burger, Chief Justice,
University of Wisconsin Law School. He is not, however, Supreme Court of the United States, 100 F.R.D. 499, 534 (1983).
admitted to practice in India and the Court views his opinions
concerning the Indian legal system, its judiciary and bar as far However, as Mr. Palkhivala states, while delays in the Indian
less persuasive than those of N.A. Palkhivala and J.B. Dadachanji, legal system are a fact of judicial life in the proposed alternative
each of whom has been admitted to practice in India for over 40 forum, there is no reason to assume that the Bhopal litigation will
years. Both are Senior Advocates before the Supreme Court of be treated in ordinary fashion.
India. Mr. Palkhivala served as Indian Ambassador to the United
States from 1977 to 1979, and has represented the Indian The Bhopal tragedy has already been approached with
government on three occasions before international tribunals. imagination in India. Demonstrating the creativity and flexibility
of the Indian system, the Parliament of India has passed the
Although the outcome of this analysis, given the rule Bhopal Act in order to deal with the cases arising from the sad
of Piper regarding change in law, seems self-evident, the Court events of December 3, 1984. The Bhopal Act permits the cases to
will review plaintiffs' argument on the inadequacy of the Indian be treated "speedily, effectively, equitably and to the best
forum out of deference to the plaintiffs. advantage of the claimants." (Palkhivala Aff. at 11).

Mr. Dadachanji refers to another Indian case which arose from a


gas leak in New Delhi. The Chief Justice and another Justice of
A. Innovation in the Indian Judicial System. the Supreme Court of India ordered the presiding court to
expedite adjudication of claims. MC Mehta v. Union of
Professor Galanter describes the Indian common law legal system, India. (Dadachanji Aff. at 11 and Annexure A thereto). In another
inherited from the British, in terms of its similarity to that of other instance, the Indian Supreme Court directed the High Court to
common law systems. He compares the system favorably to that hear a given matter on a daily basis, and set a deadline for
of the United States or Great Britain in terms of the appellate delivering judgment (Dadachanji Aff. at 11 and Annexure B
structure, the rule of stare decisis, the role of the judiciary as thereto). Other means of coping with delay are appointment of
"guardian of [India's] democratic structure and protector of special tribunals by the Government of India (Dadachanji Aff. at
citizens' rights." (Galanter Aff., at 6-12) before pointing to its 12 and Annexure C thereto), and assignment of daily hearing
ostensible deficiencies. According to Professor Galanter, India's duties to a single special judge, otherwise unburdened, to hear a
legal system "was imposed on it" during the period of colonial special matter. (Dadachanji Aff. at 11). This Court is persuaded,
rule. (Galanter Aff. at 11). Galanter argues that "Indian legal by the example of the Bhopal Act itself and other cases where
institutions still reflect their colonial origins," (Galanter Aff. at special measures to expedite were taken by the Indian judiciary,
12), in terms of the lack of broadbased legislative activity, that the most significant, urgent and extensive litigation ever to
arise from a single event could be handled through special judicial Palkhivala Aff. at 10). In addition, tort law has been codified in
accommodation in India, if required. numerous Indian statutes. (Dadachanji Aff. at 16-17).

As Professor Galanter himself states, "the major categories of tort,


their elements, the [theories] of liability, defenses, respondeat
C. Procedural and Practical Capacity of Indian Courts. superior, the theories of damagesare all familiar." (Galanter Aff.
at 37). What is different, Galanter asserts, is the complete absence
Plaintiffs contend that the Indian legal system lacks the of tort law relating to high technology or complex manufacturing
wherewithal to allow it "to deal effectively and expeditiously" processes. This is of no moment with respect to the adequacy of
with the issues raised in this lawsuit. (Memo in Opp. p. 53). the Indian courts. With the groundwork of tort doctrine adopted
from the common law and the precedential weight awarded
Plaintiffs urge that Indian practitioners emphasize oral skills British cases, as well as Indian ones, it is obvious that a
rather than written briefs. They allegedly lack specialization, well-developed base of tort doctrine exists to provide a guide to
practical investigative techniques and coordination into Indian courts presiding over the Bhopal litigation. In any event,
partnerships. These factors, *849 it is argued, limit the Indian much tort law applied in American cases involving complex
bar's ability to handle the Bhopal litigation. As Mr. Dadachanji technology has its source in legal principles first enunciated in
indicates, Indian lawyers have competently dealt with complex Victorian England. See, e.g., Rylands v. Fletcher, 1868, L.R. 3
technology transfers, suggesting capability within the H.L. 330. As Mr. Palkhivala stated in his affidavit:
technological and scientific areas of legal practice, if not
"specialization." (Dadachanji Aff. at 8). Moreover, Indian
attorneys use experts, when necessary. As to investigative ability, *850 The plant itself was the product of highly
Mr. Dadachanji persuasively points out that the Central Bureau of complex technology, but complexity of the
Investigation ("CBI") of the Union of India is well equipped to technology cannot be equated with complexity
handle factual inquiry, as is the Commission of Enquiry of legal issues. The principles of liability and
constituted by the state of Madhya Pradesh. (Dadachanji Aff. at 8). damages involved in the Bhopal cases are all
While Indian attorneys may not customarily join into large law well established in India. The complexity is not
firms, and as Mr. Palkhivala states, are limited by present Indian in the nature or determination of legal issues but
law to partnerships of no more than twenty, this alone or even in in the application of the law to the events which
concert with other factors does not establish the inadequacy of the took place in Bhopal. Well settled law is to be
Indian legal system. (Palkhivala Aff. at 8). There is no reason the applied to an unusual occurrence.
Indian legislature could not provide for the expansion of lawfirms,
if such a choice is required. In any event, this Court is not
(Palkhivala Aff. at 7).
convinced that the size of a law firm has that much to do with the
quality of legal service provided. Many small firms in this country
perform work at least on a par with the largest firms. Bigger is not Plaintiffs next assert that India lacks certain procedural devices
necessarily better. which are essential to the adjudication of complex cases, the
absence of which prevent India from providing an adequate
alternative forum. They urge that Indian pre-trial discovery is
Moreover, since the Union of India purports to represent all the
inadequate and that therefore India is an inadequate alternative
claimants, it is likely that if the case were transferred to India, the
forum. Professor Galanter states that the only forms of discovery
Attorney General or Solicitor General of India and the Advocate
available in India are written interrogatories, inspection of
General of Madhya Pradesh, with attendant staffs, would
documents, and requests for admissions. Parties alone are subject
represent the claimants. The Indian bar appears more than capable
to discovery. Third-party witnesses need not submit to discovery.
of shouldering the litigation if it should be transferred to India.
Discovery may be directed to admissible evidence only, not
(Palkhivala Aff. at 9).
material likely to lead to relevant or admissible material, as in the
courts of the United States. Parties are not compelled to provide
Next, plaintiffs and Professor Galanter argue that the substantive what will be actual proof at trial as part of discovery.
tort law of India is not sufficiently developed to accommodate the
Bhopal claims. Plaintiffs trace the lack of sophistication in Indian
These limits on discovery are adopted from the British system.
tort law to the presence of court fees for litigants as inhibiting the
Similar discovery tools are used in Great Britain today. This
filing of civil suits. Though the filing fees may have had historical
Court finds that their application would perhaps, however, limit
significance, they are irrelevant here. Professor Galanter
the victims' access to sources of proof. Therefore, pursuant to its
acknowledges that court fees may be waived for "poor parties or
equitable powers, the Court directs that the defendant consent to
for specific classes of litigants." (Galanter Aff. at 28). In fact,
submit to the broad discovery afforded by the United States
filing fees have been waived for claimants in India in the Bhopal
Federal Rules of Civil Procedure if or when an Indian court sits in
litigation already begun there.
judgment or presides over pretrial proceedings in the Bhopal
litigation.[7] Any dismissal of the action now before this Court is
Professor Galanter asserts that India lacks codified tort law, has thus conditioned on defendant's consent to submit to discovery on
little reported case law in the tort field to serve as precedent, and the American model, even after transfer to another jurisdiction.
has no tort law relating to disputes arising out of complex product
or design liability. (Galanter Aff. at 30-36). As an illustration of
The ostensible lack of devices for third-party impleader or for
the paucity of Indian tort law, Professor Galanter states that a
organizing complex cases under the law of the state of Madhya
search through the All-India Reports for the span from 1914 to
Pradesh are two other procedural deficiencies which plaintiffs
1965 revealed only 613 tort cases reported. (Galanter Aff. at 32).
assert preclude a finding that India offers an adequate alternative
Mr. Dadachanji responds that tort law is sparsely reported in India
forum. Assuming for the moment that, upon appropriate transfer,
due to frequent settlement of such cases, lack of appeal to higher
the Bhopal litigation would be adjudicated by the local district
courts, and the publication of tort cases in specialized journals
court in Bhopal, and that the law of Madhya Pradesh would be
other than the All-India Reports. (Dadachanji Aff. at 16-17;
applied, this Court is still not moved by plaintiffs' argument Final points regarding the asserted inadequacies of Indian
regarding impleader or complex litigation. procedure involve unavailability of juries or contingent fee
arrangements in India. Plaintiffs do not press these arguments, but
Although no specific provision in the Indian Code of Civil Mr. Palkhivala touches upon them. They are easily disposed of.
Procedure permits the impleading of third-parties from whom The absence of juries in civil cases is a feature of many civil law
contribution is sought, other provisions in the Code do provide for jurisdictions, and of the United Kingdom. Piper at 252, n. 18, 102
impleader. As both parties to this motion state, Order 1, Rule 10(2) S. Ct. at 264, n. 18 and citations therein. Furthermore,
of the Indian Code of Civil Procedure "allows the court to add contingency fees are not found in most foreign
additional parties if the presence of those parties is `necessary in jurisdictions. Piper at 252, n. 18, 102 S. Ct. at 264, n. 18. In any
order to enable the Court effectively and completely to adjudicate event, the lack of contingency fees is not an insurmountable
upon and settle all questions involved in the suit.'" (Galanter Aff. barrier to filing claims in India, as demonstrated by the fact that
at 60; Dadachanji Aff. at 18). Professor Galanter posits that a joint more than 4,000 suits have been filed by victims of the Bhopal
tortfeasor would not be considered a necessary party, and would gas leak in India, already. According to Mr. Palkhivala, moreover,
not be joined. Defendant's expert, conversely, asserts that a party well-known lawyers have been known to serve clients without
can be added to prevent multiplicity of suits and conflicts of charging any fees. (Palkhivala Aff. at 8).
decisions. Thus, Mr. Dadachanji argues, defendants would be able
to seek contribution from third-parties if joinder would prevent Plaintiffs' final contention as to the inadequacy of the Indian
repetitive litigation or inconsistency. Moreover, the broad forum is that a judgment rendered by an Indian court cannot be
provision of inherent powers to aid the ends of justice, as codified enforced in the United States without *852 resort to further
at Section 151 of the Indian Code of Civil Procedure would extensive litigation. Conversely, plaintiffs assert, Indian law
prevent an ultimate miscarriage of *851 justice in the area of provides res judicata effect to foreign judgments, and precludes
impleader. (Dadachanji Aff. at 19).[8] plaintiffs from bringing a suit on the same cause of action in India.
(Galanter Aff. at 63-65). Mr. Dadachanji disputes this description
The absence of procedures or mechanisms within the Indian of the Indian law of res judicata. He asserts that the pendency, or
judiciary to handle complex litigation is presented as support for even final disposition, of an action in a foreign court does not
plaintiffs' position regarding the non-existence of an adequate prevent plaintiffs from suing in India upon the original cause of
alternative forum. Professor Galanter asserts, for example, that action. Plaintiffs would not be limited, Mr. Dadachanji argues, to
Indian judges do not promote settlements. The point is wholly an Indian action to enforce the foreign judgment. (Dadachanji Aff.
irrelevant to the question of whether an adequate alternative at 19-20). In addition, he states that an Indian court, before
forum exists. In any event, this Court has labored hard and long to ordering that a foreign judgment be given effect, would seek to
promote settlement between the parties for over a year, to no avail. establish whether the foreign court had failed to apply Indian law,
It would appear that settlement, although desirable for many or misapplied Indian law. (Dadachanji Aff. at 20).
reasons, including conservation of attorneys' fees and costs of
litigation, preservation of judicial resources, and speed of The possibility of non-enforcement of a foreign judgment by
resolution, is unlikely regardless of the level of activism of the courts of either country leads this Court to conclude that the issue
presiding judge. must be addressed at this time. Since it is defendant Union
Carbide which, perhaps ironically, argues for the sophistication of
Plaintiffs' next contention is that since no class action procedure the Indian legal system in seeking a dismissal on grounds
exists in India expeditious litigation of the Bhopal suits would be of forum non conveniens, and plaintiffs, including the Indian
impossible. As with all of plaintiffs' other arguments, this Government, which state a strong preference for the American
purported deficiency does not constitute "no remedy" at all. legal system, it would appear that both parties have indicated a
Professor Galanter himself acknowledges that Order 1, Rule 8 of willingness to abide by a judgment of the foreign nation whose
the Indian Code of Civil Procedure provides a mechanism for forum each seeks to visit. Thus, this Court conditions the grant of
"representative" suits, "where there are numerous persons having a dismissal on forum non conveniens grounds on Union Carbide's
the same interest in one suit." (Galanter Aff. at 54). Even if the agreement to be bound by the judgment of its preferred tribunal,
current state of Indian law regarding "representative" suits located in India, and to satisfy any judgment rendered by the
involves application of the mechanism to pre-existing groups such Indian court, and affirmed on appeal in India. Absent such
as religious sects or associations, there is no reason to conclude consent to abide by and to "make good" on a foreign judgment,
that the Indian legislature, capable of enacting the Bhopal Act, without challenge except for concerns relating to minimal due
would not see its way to enacting a specific law for class actions. process, the motion to dismiss now under consideration will not
In addition, it does not appear on the face of Order 1, Rule 8 that be granted. The preference of both parties to play ball on a distant
the "representative" suit is expressly limited to preexisting groups. field will be taken to its limit, with each party being ordered to be
The Indian district court could adopt the rule for use in a newly bound by the decision of the respective foreign referees.
created class of injured, whose members all have "the same
interest" in establishing the liability of the defendant. An Indian To sum up the discussion to this point, the Court determines that
court has law available to create a representative class, or perhaps the Indian legal system provides an adequate alternative forum for
a few different representative classes. The "scheme" for the Bhopal litigation. Far from exhibiting a tendency to be so
registration and processing of claims, see supra, at 4, could "inadequate or unsatisfactory" as to provide "no remedy at all,"
perform the task of evaluating the specific amounts of claims. the courts of India appear to be well up to the task of handling this
Moreover, Mr. Dadachanji gives at least three examples where case. Any unfavorable change in law for plaintiffs which might be
Indian courts have consolidated suits pursuant to their inherent suffered upon transfer to the Indian courts, will, by the rule
power under Section 151 of the Indian Code of Civil Procedure. of Piper, not be given "substantial weight." Differences between
In at least one case, such consolidation allegedly occurred without the two legal systems, even if they inure to plaintiffs' detriment,
consent of the parties. (Dadachanji Aff. at 9). The absence of a do not suggest that India is not an adequate alternative forum. As
rule for class actions which is identical to the American rule does Mr. Palkhivala asserts with some dignity, "[w]hile it is true to say
not lead to the conclusion that India is not an adequate alternative that the Indian system today is different in some respects from the
forum. American system, it is wholly untrue to say that it is deficient or
inadequate. Difference is not to be equated with deficiency."
(Palkhivala Aff. at 4). Piper at 254, 102 S. Ct. at 265. The inquiry units which at this very early stage of inquiry into liability appear
now turns to a weighing of the public and private interest factors. to have been potentially involved in the MIC leak are the Carbon
Monoxide, MIC/Phosgene and Carbamoylation units. (Woomer
Aff. at 7-10). The Carbon Monoxide and MIC/Phosgene units
together employed 63 employees, all Indian nationals. (Woomer
2. Private Interest Concerns. Aff. at 9). The Carbamoylation unit employed 99 Indian nationals.
(Woomer Aff. at 10). Mr. Woomer states that an inquiry into the
The Gilbert Court set forth a list of considerations which affect cause of the accident would require interviews with at least those
the interests of the specific litigants to an action, and which employees who were on duty at the Bhopal facility "immediately
should be weighed in making a forum non prior or after the accident;" Mr. Woomer asserts that there are 193
conveniens determination. The so-called private interest factors, employees, all Indians, who must be interviewed. (Woomer Aff.
along with public interest factors discussed below, were not at 58).[11]
intended to be rigidly applied. As the Court stated in Piper,
In addition to the seven operating units, the Bhopal plant
contained seven functional departments which serviced
operations.[12] The seven heads of the units reported within the
"[E]ach case turns on its facts." If central plant much as the department heads did.
emphasis were placed on any one factor,
the forum non conveniens doctrine would lose The maintenance unit was apparently subdivided into departments
much of the flexibility that makes it so valuable. including Instrumentation, Mechanical Maintenance, both part of
the Agricultural Chemical Maintenance unit, which employed 171
Piper at 249-50, 102 S. Ct. at 263. Recognizing that people in total, and Plant Engineering and Formulation
"[p]articularly with respect to the question of relative ease of Maintenance, which employed 46 people. (Woomer Aff. at 11-12).
access to sources of proof," "the private interests point in both In *854 addition, the Utilities and Electrical department employed
directions," the Supreme Court nevertheless upheld a district 195 people. (Woomer Aff. at 13). According to Mr. Woomer, the
court's decision to dismiss a case in favor of the relative various maintenance organizations performed repairs on
convenience of a forum in Scotland. Piper at 257, 102 S. Ct. at equipment, provided engineering support, fabricated certain
267. By contrast, this Court finds that the private equipment, salvaged other portions, and controlled utilities,
interests *853 point strongly one way. As in Piper, it appears that temperatures and pressures throughout the plant. (Woomer Aff. at
the burdensome effect of a trial in this forum supports a finding 11-14).
that the private interest factors in this case weigh strongly in favor
of dismissal. Moreover, according to Mr. Woomer, these UCIL departments
also kept daily, weekly and monthly records of plant operations,
many of which were purportedly seized by the CBI and selected
for copying by CBI immediately after the accident.[13] The
A. Sources of Proof. records and reports of the various maintenance units would likely
be relevant to the question of liability at trial.
The first example of a private interest consideration discussed
in Gilbert is "relative ease of access to sources of proof." As Of the additional functional units, it is possible that Quality
stated, the analysis of this issue must hinge on the facts. Limited Control, with 54 employees, Purchasing, with 53, or Stores may
discovery on the issue of forum non conveniens has taken place, have been directly involved in the disaster by virtue of their
pursuant to the Court's order of August 14, 1985.[9] The Court participation in analyzing plant output, procuring raw materials
can therefore proceed to discuss this question. for the chemical processes of the plant, and maintaining spare
parts and certain chemicals. (Woomer Aff. at 14-19). Thus, the
Union Carbide argues that virtually all of the evidence which will records and reports of these three departments may be necessary
be relevant at a trial in this case is located in India. Union to an investigation of liability. While examination of members of
Carbide's position is that almost all records relating to liability, the Works Office department and Industrial Relations department
and without exception, all records relevant to damages, are to be would likely be less directly useful, information regarding plant
found in and around Bhopal. On the liability question Union budgets and employee histories might be of relevance. Of great
Carbide asserts that the Bhopal plant was managed and operated importance are the records and reports of the Safety/Medical
entirely by Indian nationals, who were employed by UCIL. department, which was responsible for daily auditing of safety
(Affidavit of Warren J. Woomer, formerly Works Manager of the performance in all departments, training and testing on safety
Bhopal plant ("Woomer Aff.") at 2). Defendant asserts that the rules, maintaining safety statistics and planning and implementing
Bhopal plant is part of UCIL's Agricultural Products Division, safety drills. (Woomer Aff. at 22-23). The 31 Indian employees of
which has been a separate division of UCIL for at least 15 years, this department worked with the Central Safety Committee of the
and that the plant had "limited contact" with UCIL's Bombay plant, whose members were drawn from plant management, and
headquarters, and almost no contact with the United States. the Departmental Safety Committees. Operating units were
(Woomer Aff. at 4, 32). Woomer claims to have been the last required to monitor plant safety mechanisms weekly, and to keep
American employed by UCIL. He departed from Bhopal in 1982. monthly checklists. (Holman Aff. # 2 at 9). The Central Safety
(Woomer Aff. at 2). Committee met monthly, as did the Departmental Safety
Committees. (Woomer Aff. at 39). The MIC Unit held monthly
safety committee meetings, for example, and issued monthly
Woomer describes the structure and organization of the Bhopal
reports. (Woomer Aff. at 41). Quarterly "Measures of
facility at the time of the accident. The plant had seven operating
Performance" reviews also covered safety issues, and were
units, each headed by a manager or department head, each an
required of each operating unit. (Woomer Aff. at 40). Certainly,
Indian national.[10] The managers or department heads each
interviews of the plant personnel involved in safety reports and
reported either directly to the plant's General Works Manager, or
audits would be particularly relevant to the investigation of the
to one of three Assistant Works Managers. (Woomer Aff. at 6).
disaster.
Each of these is also an Indian national. Three of the operating
Plaintiffs refer to three occasions upon which Union Carbide, not of the process design," and approved detail reports of "not only
UCIL, employees conducted safety audits at the Bhopal plant. As UCIL but also independent contractors, including Humphreys &
defendant correctly argues, these three events constitute a very Glasgow Consultants Private Ltd. and Power Gas Limited" of
small fraction of the thousands of safety audits conducted at the Bombay, India. (Memo in Opp. at 17-20).[15]
Bhopal facility. The three audits, moreover, were conducted in
1979, the fall of 1980 and in May of 1982, many years prior to the Plaintiffs also claim that "[n]o change of any substance was made
accident which is the subject of this lawsuit. (Plaintiffs' Memo in from Union Carbide's design during the detailing phase."
Opp. at 25).[14] Plaintiffs note that only "one portion" of the process design work
provided to UCIL by Union Carbide was not used. (Memo in Opp.
Two accidents which occurred previously at the Bhopal plant at 20). In effect, plaintiffs seek to establish that Union Carbide
might also be of relevance to the liability inquiry in this litigation. was the creator of the design used in the Bhopal plant, and
On December 24, 1981, a phosgene gas leak killed a UCIL directed UCIL's relatively minor detailing program. They urge
maintenance worker. *855 Reports of the fatality were sent to that for the most *856 part relevant proof on this point is located
Union Carbide management in the United States. (Woomer in the United States.
Deposition, Exs. 30 and 31). Plaintiffs assert that the accident
report called for increased training in Bhopal by United States Defendant seeks to refute this contention, with notable success.
employees of Union Carbide's Institute, West Virginia, plant. Turning first to the affidavit of Robert C. Brown, who describes
Defendant states that the responsibility for remedying problems in himself as "chief negotiator for Union Carbide Corporation in
the Bhopal plant rested with the plant itself, and that Union connection with the two agreements it entered into with ... UCIL
Carbide did not make any recommendations, and was involved in November, 1973," the Court is struck by the assertion that the
only to the extent of receiving a copy of the report which called two agreements were negotiated at "arms-length" pursuant to
for its involvement in further training. (Woomer Aff. at 41). Union Carbide corporate policy, and that the Union of India
mandated that the Government retain "specific control over the
The second accident at Bhopal prior to the disaster of December, terms of any agreements UCIL made with foreign companies such
1984 took place on February 9, 1982, when a pump seal, perhaps as Union Carbide Corporation." (Brown Aff. at 3-4).[16]
improperly used, failed. (Memo in Opp. at 24; Woomer Aff. at
41). Many employees were injured, and at least 25 were Mr. Brown alleges that the Letter of Intent issued by the Union of
hospitalized. Plaintiffs discuss the fact that Robert Oldford, India in March 1972, pursuant to which construction and design
president of Union Carbide Agricultural Products Company of the plant were allowed to ensue provided, inter alia, that:
("UCAPC") a wholly-owned subsidiary of Union Carbide
headquartered in the United States, was in Bhopal at the time of
the February 1982 leak. (Memo in Opp. at 24). Union Carbide
asserts that Mr. Oldford was visiting UCIL's Research and (2) [F]oreign collaboration and import of
Development Centre, located several miles from the Bhopal plant equipment be settled to the satisfaction of the
for an unrelated purpose, and was only coincidentally in Bhopal Government.
when the leak occurred. To the extent that this presence in India
in 1982 has any significance, Mr. Oldford, and any other United Mr. Brown claims, on personal information, that UCIL told him
States employees of Union Carbide who conducted safety audits that Union Carbide would not be allowed to be involved in the
in Bhopal or were present when accidents occurred there, may be Bhopal project beyond the provision of process design packages.
flown to Bhopal for testimony or discovery. (Brown Aff. at 5). The Design Transfer Agreement indicates that
Union Carbide's duty under the Agreement was to provide
In addition to safety data, two other types of proof may be process design packages, and that UCIL, not Union Carbide,
relevant to a trial of this case on the merits. Information regarding would be responsible to "detail design, erect and commission the
plant design, commissioning and start-up may bear upon the plant." (Defendant's Ex. 4, § 4.1). Union Carbide, accordingly,
liability question. Information pertinent to employee training issued limiting warranties with respect to the design packages,
should also have significance. detailing of which it would not be involved with. (Brown Aff. at 7,
Ex. 4, §§ 4.1, 12.3).
Leaving aside the question of whether the Government of India or
UCIL chose the site and product of the Bhopal plant, the Court The nature of UCIL's detail design work is discussed in the
will evaluate the facts which bear on the issue of relevant records. affidavit of Ranjit K. Dutta, who has held various positions at
The findings below concern the location of proof only, and bear UCIL and UCAPC. From 1973 through 1976, Mr. Dutta was
solely upon the forum non conveniens motion. The Court employed as General Manager of the Agricultural Products
expressly declines to make findings as to actual liability at this Division of UCIL. (Dutta Aff. at 2).
stage of the litigation.
Mr. Dutta asserts that the Bhopal facility was built by UCIL over
Plaintiffs and defendant agree that in 1973 Union Carbide entered the eight years from 1972 to 1980. (Dutta Aff. at 8). He asserts
into two agreements with UCIL which were entitled "Design that Union Carbide's role in the project was "narrow", and limited
Transfer Agreement" and "Technical Service Agreement." to providing "certain process design packages for certain parts of
According to plaintiffs, Union Carbide, pursuant to the Design the plant." (Dutta Aff. at 9). He continues, stating:
Transfer Agreement, provided a process design to UCIL, the
"detailing [of which] was undertaken in India." (Memo in Opp. at
17). The process design package consisted of the basic plan of the
factory, which was to be fleshed out in the detailing phase. Once it did that, it had no further design or
Plaintiffs state that at least nine Union Carbide technicians engineering role,
travelled to India to monitor the progress of the project. Union
Carbide also allegedly assigned a "key engineer," John Couvaras, and that:
to serve as UCIL Bhopal project manager. Mr. Couvaras allegedly
"assumed responsibility for virtually every aspect of the detailing
[T]he process design packages which Union and Mr. Dutta both may be called to testify at trial or discovery.
Carbide Corporation provided are nothing more Mr. Dutta's home is in Bhopal. (Dutta Aff. at 1). The Court is not
than summary design starting points.... They set aware of the whereabouts of Mr. Munoz at this time. Either of the
forth only the general parameters.... A plant two could travel to either alternative forum.
cannot be constructed from a process design
package. The detail design comprises In addition to design and safety records, material regarding
approximately 80 percent of the sum of the man training of Bhopal personnel is likely to be relevant to the
hours involved in the design of any project and question of liability. Plaintiffs state that Warren Woomer
transposes the general process design supervised the training of UCIL personnel at Union Carbide's
parameters into an actual design which can be Institute, West Virginia plant. According to plaintiffs, 40 UCIL
used for purchasing equipment and actual employees were transported to Institute's MIC facility for lengthy
construction. training. (Memo in Opp. at 22). Mr. Woomer states in reply that
the 40 employees thus trained represented a fraction of the over
(Dutta Aff. at 9-12). (emphasis omitted). 1,000 employees who were trained exclusively in Bhopal.
(Woomer Aff. at 43). In addition, Mr. Woomer asserts that the
According to Mr. Dutta, during the five years between the date training at Institute was pursuant to an arms-length agreement,
upon which Union Carbide submitted process designs, and the that UCIL selected the parties to be trained, and that UCIL paid
date upon which the plant started-up, there were only four visits Union Carbide for the training. (Woomer Aff. at 43). Moreover,
to Bhopal by Union Carbide process design engineers. (Dutta Aff. Mr. Woomer's description of the training provided at Bhopal
at 14). In contrast, he asserts that ten to fifteen UCIL engineers, suggests that each of the plant's employees had lengthy
working primarily out of Bombay, were involved in design cumulative training, of which the Institute training was but a very
detailing. (Dutta Aff. at 16). These UCIL engineers oversaw the small portion. (Woomer Aff. at 46). Personnel records, in any
55 to 60 Indian engineers *857 employed by the Bombay event, are located in Bhopal. (Holman Aff. # 2 at 4).
engineering firm which performed the detail design work. This
firm, Humphreys and Glasgow, submitted designs and drawings The briefs and affidavits contain considerable discussion on the
to the UCIL engineers for approval. Corrected drawings were matter of commissioning and start-up of the Bhopal plant. The
returned by UCIL to Humphreys and Glasgow for changes, and Court need not resolve the question of who was responsible for
sent back to UCIL for final approval. (Dutta Aff. at these aspects of plant operation. However, the Court determines
19-24).[17] Mr. Dutta alleges that "at no time were Union Carbide that the manual regarding start-up was prepared by Indian
Corporation engineering personnel from the United States nationals employed by UCIL. (Woomer Aff. at 48).
involved in approving the detail design or drawings prepared
upon which construction was based. Nor did they receive notices In the aggregate, it appears to the Court that most of the
of changes made." (Dutta Aff. at 24). documentary evidence concerning design, training, safety and
start-up, in other words, matters bearing on liability, is to be
Mr. Dutta expressly states that the MIC storage tank and found in India. Much of the material may be held by the Indian
monitoring instrumentation were fabricated or supplied by two CBI. Material located in this country, such as process design
named Indian sub-contractors. The vent gas scrubber is alleged to packages and training records of the 40 UCIL employees trained
have been fabricated in the Bhopal plant shop. (Dutta Aff. at 25). at Institute, constitutes a smaller portion of the bulk of the
pertinent data than that found in India. Moreover, while records in
Of the 12,000 pages of documents purportedly seized by the CBI this country are in English, a language understood in the courts of
regarding design and construction of the Bhopal plant, an asserted India, certain of the records in India are in Hindi or other Indian
2,000 are design reports of Humphreys and Glasgow, UCIL or languages, as well as in English. (Holman Aff. # 2 at 12). The
other contractors. Defendant claims that blueprints and Indian language documents would have to be translated to be of
calculations comprise another 1,700 pages of documents held by use in the United States. The reverse is not true. It is evident to
the CBI. Five thousand pages of contractors' files, including the Court that records concerning the design, manufacture and
specifications and contracts are asserted to be in India. In addition, operation of the Bhopal plant are relatively more accessible in
Union Carbide claims that blueprints and diagrams may not India than in the United States, and that fewer translation
reflect final design changes as incorporated into the actual plant, problems would face an Indian court than an American court.
and that the detail design engineers' testimony will be needed to Since Union Carbide has been directed to submit to discovery in
determine the configuration of the actual plant.[18] (Holman Aff. India pursuant to the liberal grant of the American Federal Rules
# 2 at 15-16). of Civil Procedure, and this opinion is conditioned upon such
submission, any records sought by plaintiffs must be made
One final point bearing on the information regarding liability is available to them in India. The private interest factor of relative
contained in the affidavit of Edward Munoz, at a relevant time the ease of access to sources of proof bearing on liability favors
General Manager of UCIL's Agricultural Products Division. He dismissal of the consolidated case.[20] The
later acted as Managing Director of UCIL. Mr. Munoz has Indian *859 Government is asserted to have been involved in
submitted an affidavit in which he states that Union Carbide safety, licensing and other matters relating to liability. Records
decided to store MIC in large quantities at the Bhopal plant, relating thereto are located in India, as are the records seized by
despite Mr. Munoz' warnings that MIC should be stored only in the CBI. Although plaintiffs state that all such records could and
small amounts because of safety. (Memo in Opp. at 15-16; Munoz would be made available to this Court, it would be easier to
Aff.). Mr. Dutta, for defendant, asserts that there was never any review them in India. Transmittal and translation problems would
issue of token storage of MIC at Bhopal, as Mr. Munoz states, and thereby be avoided.
that there is no truth to Mr. Munoz' assertion that he was involved
in the storage issue. (Dutta Aff. at 30).[19]*858 The Court cannot
make any determination as to the conflicting affidavits before it.
This question, which involves credibility concerns, is left for later B. Access to Witnesses.
in the litigation. To the extent that this particular matter bears
upon the relative ease of access to sources of proof, Mr. Munoz
Gilbert teaches a second important consideration under the regarding witnesses emphasize the logic of defendant's position.
heading of private interests, the "availability of compulsory Relatively fewer witnesses reside in the United States than in
process for attendance of willing, and the cost of obtaining India. Almost all of the witnesses located in this country are
attendance of unwilling, witnesses." Gilbert, 330 U.S. at 508, 67 employees of defendant, and would be subject to compulsory
S. Ct. at 843. As discussed in detail above, most witnesses whose process in India as a result. Transportation costs for the relative
testimony would relate to questions of causation and liability are few would not compare to the alternate costs of transporting
in India. Engineers from UCIL and Humphreys and Glasgow and hundreds of Indian witnesses. Since English is widely spoken in
other subcontractors, of whom there are hundreds, are located in India, less translation would be required for foreign witnesses in
India. Shift employees from the possibly malfunctioning units, India than in the converse situation. Should this case be tried in
safety monitoring personnel, those responsible for training, safety India, fewer obstacles to calling state and local officials as
auditing, procurement, compliance with regulations and other witnesses or parties would face the defendant. The Court
operations might be required to testify. More than likely, many of determines that this private interest factor weighs in favor of
these potential witnesses do not speak English, and would require dismissal.
translators. Many of the witnesses are not parties to this litigation.
Therefore, as the Court of Appeals for the Second Circuit has
stated in the context of a forum non conveniens motion:
C. Possibility of View.

In fact, the plaintiffs' cases on liability will The third private interest factor articulated in Gilbert is the ease of
depend in large measure upon the knowledge arranging for a view of the premises around which the litigation
and activities of such witnesses as the centers. Plaintiffs assert that the notion that a jury view of the
employees of [companies] who are not parties plant and environs is necessary is "simply preposterous." (Memo
to this litigation, but who directly participated in Opp. at 71). Plaintiffs note that a viewing of the premises is
in the events which gave rise to it. The United rarely conducted in products liability cases, since videotapes,
States District Court in New York, however, pictures, diagrams, schematics and models are more instructive
has no power to subpoena any of these than an actual view. (Memo in Opp. at 71). A viewing of the plant
witnesses. It is unlikely that many would be and hutments would probably not be of utmost importance in
willing to travel to New York to testify; and the determining liability, and this consideration is not afforded great
cost, in any event, would be prohibitively great. weight on this motion.

Fitzgerald v. Texaco, 521 F.2d 448, 451-52 (2d Cir. 1975), cert. However, the instant case is not identical to the product design
denied, 423 U.S. 1052, 96 S. Ct. 781, 46 L. Ed. 2d 641 (1976) defect case cited by plaintiffs, in which a district court judge
(footnote omitted). In contrast, the relatively few witnesses who determined that "the present appearance of the defendants'
reside in the United States are primarily employed by Union facilities may or may not be relevant to production which
Carbide. As employees of a party they would probably be subject occurred" in the period in which the allegedly violative
to the subpoena power of Indian courts. Transportation costs manufacture occurred. Hodson v. A.H. Robins Co., Inc., 528 F.
would also be lower, since fewer people would have to make the Supp. 809, 822 (E.D.Va.1981), aff'd, 715 F.2d 142 (4th Cir. 1983).
journey to testify. In the instant case, the site of the accident was sealed after the
leak, and the present condition of the plant might be relevant to a
finding of liability. A viewing may not be necessary, but
The presence of the Indian Government in this action is also of
conceivably could be called for later in the litigation. An Indian
critical importance on this motion. Plaintiffs assert that "all
court is in a far better position than this Court to direct and
necessary officials and employees of the Central Government will
supervise such a viewing should one ever be required. This
voluntarily comply with requests to attend trial." (Memo in Opp.
consideration, though minor, also weighs in favor of dismissal.
at 70; Answer to No. 124 of Defendant's First Requests for
Admission, Exhibit 55). This statement does not provide for
attendance by officials of Madhya Pradesh or the Bhopal In summary, then, the private interest factors weigh greatly in
municipality, whom Union Carbide indicates might be impleaded favor of dismissal on grounds of forum non conveniens. Since the
as third-party defendants. As witnesses only, these officials would "balance is strongly in favor of the defendant" and foreign
not be subject to this Court's subpoena power. As third-party plaintiffs' choice of a foreign forum is given less than maximum
defendants, they might be immune from suit in the United States deference, the Court determines that dismissal is favored at this
by the terms of the Foreign Sovereign Immunities Act, 28 U.S.C. point in the inquiry. Gilbert 330 U.S. at 508, 67 S. Ct. at 843.
§ 1602 et seq. State and city officials might also lack sufficient
contacts with this district to allow this Court to exercise personal
jurisdiction over them.
3. Public Interest Concerns.
While Union Carbide might be deprived of testimony of witnesses
or even potential third-parties if this action were to proceed in this The Gilbert Court articulated certain factors which affected the
forum, no such problem would exist if litigation went forward in interests of non-parties to a litigation to be considered in the
India. context of the doctrine of forum non conveniens. These public
interest concerns were held to be relevant to a court's
The unavailability of compulsory process for Indian non-party determination of whether to dismiss on these grounds. The
witnesses, of whom *860 there are many, such as would ensure Supreme Court expressly identified a few factors:
their presence at a trial in this country, the high cost of
transporting the large number of Indian nationals to the United
States, as well as the need to translate their testimony should they
Administrative difficulties follow for courts
appear, all support the argument favoring dismissal of this action
when litigation is piled up in congested centers
on forum non conveniens grounds. The private interest concerns
instead of being handled at its origin. Jury duty
is a burden that ought not to be imposed upon It is scarcely necessary to dwell on the fact that
the people of a community which has no this Court is the most heavily burdened Federal
relation to the litigation. In cases which touch District Court in the country. The Civil
the affairs of many persons, there is reason for Calendar grows more congested all the time.
holding the trial in their view and reach rather The priority now properly given to the
than in remote parts of the country where they disposition of criminal cases tends to increase
can learn of it by report only. There is a local this congestion.
interest in having localized controversies
decided at home. There is an appropriateness,
too, in having the trial of a diversity case in a ******
forum that is at home with the state law that
must govern the case, rather than *861 having a
court in some other forum untangle problems in
I see no reason why this Court, with its heavy
conflict of laws, and in law foreign to itself.
burdens and responsibilities, should be
burdened with cases like these which, from
Gilbert at 508-09, 67 S. Ct. at 843. The Court will consider these
every point of view, should be tried in the
various factors in turn, as well as others discussed by the parties
courts of the nation where all the relevant
and amicus curiae.
events occurred and whose citizens are
primarily involved. Certainly, this district and
the Metropolitan area in which it is situated
have no conceivable relation to this litigation
A. Administrative Difficulties. except for the fact that the defendant happens to
be doing business here.
As is evident from the discussion thus far, the mere size of the
Bhopal case, with its multitude of witnesses and documents to be Domingo at 816.
transported and translated, obviously creates administrative
problems. The defendant in this case, involved as it appears to have been in
the process design phase of the plant's construction, may have a
There can be no doubt that the Bhopal litigation will take its toll slightly less tenuous connection to this forum than a corporation
on any court which sits in judgment on it. This Court sits in one which is merely doing business here. Certain business conducted
of the busiest districts in the country, and finds, as a matter within in New York, or in corporate headquarters in Danbury,
its experience, that this is a "congested center" of litigation as Connecticut, may have been directly related to development or
described in Gilbert at 508. The burden which would be imposed operation of the UCIL facility in Bhopal. However, almost "all
should litigation continue here was aptly described by the Court the relevant events" leading to and following from the accident
of Appeals for the Second Circuit in Schertenlieb v. Traum, 589 occurred in India. Indian citizens are primarily involved in the
F.2d 1156 (2d Cir.1978). Reviewing a district judge's ruling for case, both as witnesses and claimants. The substantial
dismissal on the grounds of forum non conveniens, the Second administrative weight of this case should be centered on a court
Circuit observed that "were it not for the somewhat unusual fact with the most significant contacts with the event. Thus, a court in
that it is the forum resident who seeks dismissal, we would have Bhopal, rather than New York, should bear the load.
to say very little regarding the exercise of Judge Metzner's
discretion in dismissing this case." Schertenlieb at 1164. In *862 In addition to the burden on the court system, continuation
affirming the ruling for dismissal, the Court of Appeals asked the of this litigation in this forum would tax the time and resources of
rhetorical question: citizens directly. Trial in this case will no doubt be lengthy. An
assigned jury would be compelled to sit for many months of proof.
Because of the large number of Indian language-speaking
witnesses, the jurors would be required to endure continual
If litigation is in a clearly inconvenient forum,
translations which would double the length of trial. The burden on
why should defendant and the court be
the jurors themselves, and on their families, employers and
burdened with its continuing there, if an
communities would be considerable. The need for translation
alternative forum now exists so that plaintiff
would be avoided if trial were to be held in Bhopal.
will not be without a remedy?

Clearly, the administrative costs of this litigation are astounding


Schertenlieb at 1163.
and significant. Despite its deep concern for the victims of the
tragedy, this Court is persuaded by a recent relevant decision of
This Court has already determined that because of the location of
the New York State Court of Appeals. In the opinion in Islamic
the preponderance of the evidence in India, and the difficulty of
Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478 N.Y.S.2d 597,
transporting documents and witnesses to this forum, this district is
467 N.E.2d 245 (1984), cert. denied, ___ U.S. ___, 105 S. Ct. 783,
clearly an inconvenient forum for the litigation. An alternative
83 L. Ed. 2d 778 (1985), with reference to a decision discussing
forum is seen to exist in India. This Court feels that the answer to
actions brought in New York by the Iranian Government against
the Schertenlieb question is clear.
the Shah and his wife, the Court of Appeals stated that:

A district judge in this district, in Domingo v. States Marine


Lines, 340 F. Supp. 811 (S.D.N.Y.1972) evaluated the
administrative concerns of the Southern District of New York, [T]he taxpayers of this State should not be
relevant to this Court today, a full fourteen years later. compelled to assume the heavy financial burden
The Domingo court stated: attributable to the cost of administering the
litigation contemplated when their interest in
the suit and the connection of its subject Union Carbide, not surprisingly, argues that the public interest of
matter ... is so ephemeral. the United States in this litigation is very slight, and that India's
interest is great. In the main, the Court agrees with the defendant.
Islamic Republic at 483, 478 N.Y.S.2d 597, 467 N.E.2d 245
(citations omitted). Administrative concerns weigh against As noted, Robert C. Brown states in his affidavit on behalf of
retention of this case. Union Carbide that the Indian Government preserved the right to
approve foreign collaboration and import of equipment to be used
in connection with the plant. See supra at 856. In addition, Mr.
Brown quoted excerpts from the 1972 Letter of Intent entered into
B. The Interests of India and the United States. by the Union of India and UCIL, one term of which required that
"the purchase of only such design and consultancy services from
Plaintiffs, and especially amicus curiae emphasize this point of abroad as are not available within the country" would be allowed.
argument in opposition to the motion to dismiss. Concerned with (Brown Aff. at 6). Ranjit K. Dutta states that the Indian
the asserted possibility of developing a "double-standard" of Government, in a process of "Indianization," restricted the
liability for multinational corporations, plaintiffs urge that amount of foreign materials and foreign consultants' time which
American courts should administer justice to the victims of the could be contributed to the project, and mandated the use of
Bhopal disaster as they would to potential American victims of Indian materials and experts whenever possible. (Dutta Aff. at 35).
industrial accidents. The public interest is served, plaintiffs In an alleged ongoing attempt to minimize foreign exchange
and amicus argue, when United States corporations assume losses through imports, the Union of India insisted on approving
responsibility for accidents occurring on foreign soil. "To equipment to be purchased abroad, through the mechanism of a
abandon that responsibility," amicus asserts, "would both injure "capital goods license." (Dutta Aff. at 48-50).
our standing in the world community and betray the spirit of
fairness inherent in the American character." (Amicus Brief at 4). The Indian Government, through its Ministry of Petroleum and
The specific American interests allegedly to be served by this Chemicals, allegedly required information from UCIL regarding
Court's retention of the case include the opportunity of creating all aspects of the Bhopal facility during construction in 1972 and
precedent which will "bind all American multinationals 1973, including "information on toxicity" of chemicals. (Dutta
henceforward," (Amicus Brief at 20); promotion of "international Aff. at 44). The Ministry required progress reports throughout the
cooperation," (Amicus Brief at 22-23); avoidance of an asserted course of the construction project. These reports were required by
"double standard" of liability, and the prevention of "economic the Secretariat for Industrial Approvals, the Director General of
blackmail of hazardous industries which would extract Technical Development and the Director of Industries of Madhya
concessions on health and environmental standards as the price of Pradesh. (Dutta Aff. at 45). Moreover, UCIL was ultimately
continuing operations in the United States." (Amicus Brief at 20). required to obtain numerous licenses during development,
An additional American public interest ostensibly to be served by construction and operation of the facility. (Dutta Aff. at 46). The
retention of the litigation in this forum is advanced by plaintiffs list of licenses obtained fills five pages.[21]
themselves. They assert that the deterrent effect of this case can
be distinguished from the situation in Piper, where the Court The Indian Government regulated the Bhopal plant indirectly
rejected the argument that "American citizens have an interest in under a series of environmental laws, enforced by numerous
ensuring that American manufacturers are deterred from agencies, much as the Occupational Safety and Health
producing defective products, and that additional deterrence Administration, the Environmental Protection Agency and state
might be obtained if Piper and [its co-defendant] were tried in the and local agencies regulate the chemical industry in the United
United States, where they could be sued on the basis of both States. (Dutta Aff. at 53-56). Emissions from the facility were
negligence and strict liability." Piper 454 U.S. at 260, 102 S. Ct. monitored by a state water pollution board, for example. (Dutta
at 268. The Court stated that: Aff. at 64). In addition, state officials periodically inspected the
fully-constructed plant.[22] (Dutta Aff. at 56). A detailed inquiry
into the plant's operations was conducted by the Indian
Government in the aftermath of the December, 1981 fatality at the
[T]he incremental deterrence that would be MIC unit and the February, 1982 incident involving a pump seal.
gained if this trial were held in an American (Dutta Aff. at 58-62). Numerous federal, state and local
court is likely to be insignificant. The American commissions, obviously, investigated the most tragic incident of
interest in this accident is simply not sufficient all, the MIC leak of December, 1984.
to justify the enormous commitment of judicial
time and resources that would inevitably be The recital above demonstrates the immense interest of various
required if the case were to be tried here. Indian governmental agencies in the creation,
operation, *864 licensing and regulation, and investigation of the
Piper at 260-61, 102 S. Ct. at 268. According to plaintiffs, the plant. Thus, regardless of the extent of Union Carbide's own
potential for greater deterrence in this case is "self-evident." involvement in the UCIL plant in Bhopal, or even of its asserted
"control" over the plant, the facility was within the sphere of
*863 The opposing interest of India is argued to be ill-served by regulation of Indian laws and agencies, at all levels. The
sending this litigation to India. Pointing to the fact that the Union comments of the Court of Appeals for the Sixth Circuit with
of India chose this forum, plaintiffs state that there can be "no respect to its decision to dismiss a products liability action
question as to the public interest of India." (Memo in Opp. at 91). on forum non conveniens grounds seem particularly apposite.
Union Carbide's statements regarding the interests of India in this In In re Richardson-Merrell, Inc., 545 F. Supp. 1130 (S.D.Ohio
litigation are summarily dismissed by the plaintiffs, who state that 1982), modified sub. nom. Dowling v. Richardson-Merrell
"Union Carbide, whose actions caused the suffering of an entire Inc., 727 F.2d 608 (6th Cir.1984), the court reviewed a dismissal
city, has no standing to assert this belated concern for the welfare involving an action brought by a number of plaintiffs, all of
of the Indian populace." (Memo in Opp. at 91). whom were citizens of Great Britain.[23] Defendant in the action
was a drug company which had developed and tested a drug in the
United States which was manufactured and marketed in England.
The suit was brought against the American parent, not the British view of the safety, warning, and duty of care
subsidiary, for injuries allegedly resulting from ingestion of the required of drugs sold in the United States upon
offending drug in England and Scotland. The district court, in a foreign country when those same drugs are
dismissing the case, stated that: sold in that country.

Harrison v. Wyeth Laboratories, 510 F. Supp. 1, 4


(E.D.Pa.1980), aff'd mem., 676 F.2d 685 (3d Cir.1982). India no
This action involves the safety of drugs doubt evaluated its need for a pesticide plant against the risks
manufactured in the United Kingdom and sold inherent in such development. Its conclusions regarding
to its citizens pursuant to licenses issued by that "[q]uestions as to the safety of [products] marketed" or
government. The interest of the United manufactured in India were "properly the concern of that
Kingdom is overwhelmingly apparent. New country." Harrison at 4 (emphasis omitted). This is particularly
York, and Ohio [the United States forums] for true where, as here, the interests of the regulators were possibly
that matter, have a minimal interest in the safety drastically different from concerns of American regulators. The
of products which are manufactured, regulated Court is well aware of the moral danger of creating the
and sold abroad by foreign entities, even though "double-standard" feared by plaintiffs and amicus
development or testing occurred in this country. curiae. However, when an industry is as regulated as the chemical
industry is in India, the failure to acknowledge inherent
In re Richardson-Merrell, Inc., 545 F. Supp. at 1135 (footnote differences in the aims and concerns of Indian, as compared to
omitted). The Sixth Circuit confirmed this view of the public American citizens would be naive, and unfair to defendant. The
interests, stating: district court in Harrison considered the hypothetical instance in
which a products liability action arising out of an Indian accident
would be brought in the United States. The court speculated as
follows:
The interest of the United Kingdom in this
litigation is great. The drug was manufactured
under a British license by British companies
and was marketed and prescribed in the United The impropriety of [applying American
Kingdom. The alleged injuries took place in standards of product safety and care] would be
England and Scotland and the plaintiffs are even more clearly seen if the foreign country
citizens and residents of those countries. When involved was, for example, India, a country
a regulated industry, such as pharmaceuticals in with a vastly different standard of living, wealth,
this case and passenger aircraft operations resources, level of health care and services,
in Piper Aircraft, is involved, the country where values, morals and beliefs than our own. Most
the injury occurs has a particularly strong significantly, our two societies must deal with
interest in product liability litigation.... Though entirely different and highly complex problems
no single factor should be determinative in of population growth and control. Faced with
ruling on a forum non conveniens motion, the different needs, problems and resources in our
nature of the product and its status as regulated example India may, in balancing the pros and
or not must be considered. cons ... give different weight to various factors
than would our society.... Should we impose our
Dowling, 727 F.2d at 616. standards upon them in spite of such differences?
We think not.
The Indian government, which regulated the Bhopal facility, has
an extensive and deep interest in ensuring that its standards for Harrison at 4-5. This Court, too, thinks that it should avoid
safety are complied with. As regulators, the Indian government imposing characteristically American values on Indian concerns.
and individual citizens even have an interest in knowing whether
extant regulations are adequate. This Court, sitting in a foreign The Indian interest in creating standards of care, enforcing them
country, has considered the extent of regulation by Indian or even extending them, and of protecting its citizens from ill-use
agencies of the Bhopal plant. It finds that this is not the is significantly stronger than the local interest in deterring
appropriate tribunal to determine whether the Indian regulations multinationals from exporting allegedly dangerous technology.
were breached, or whether the laws themselves were sufficient to The supposed "blackmail" effect of dismissal by which plaintiffs
protect Indian citizens from harm. It would be sadly paternalistic, are troubled is not a significant interest of the American
if not misguided, of this Court to attempt to evaluate the population, either. Surely, there will be no relaxing of regulatory
regulations and standards imposed in a foreign country. As standards by the responsible legislators of the United States as a
another district court stated in the context of a drug product response to lower standards abroad.[24] Other concerns than bald
liability action brought by foreign plaintiffs in this country, fear of potential liability, such as convenience or tax benefits,
bear on decisions regarding where to locate a plant. Moreover, the
purported public interest of seizing this chance to create new law
is no real interest at all. This Court would exceed its authority
*865 Each government must weigh the merits
were it to rule otherwise when restraint was in order.
of permitting the drug's use.... Each makes its
own determination as to the standards of degree
The Court concludes that the public interest of India in this
of safety and duty of care.... This balancing of
litigation far outweighs the public interest of the United States.
the overall benefits to be derived from a
This litigation offers a developing nation the opportunity to
product's use with the risk of harm associated
vindicate the suffering of its own people within the framework
with that use is peculiarly suited to a forum of
of *866 a legitimate legal system. This interest is of paramount
the country in which the product is to be used....
importance.[25]
The United States should not impose its own
would unfairly tax this or any American tribunal. The cost to
American taxpayers of supporting the litigation in the United
C. The Applicable Law. States would be excessive. When another, adequate and more
convenient forum so clearly exists, there is no reason to press the
Gilbert and Piper explicitly acknowledge that the need of an United States judiciary to the limits of its capacity. No American
American court to apply foreign law is an appropriate concern on interest in the outcome of this litigation outweighs the interest of
a forum non conveniens motion, and can in fact point toward India in applying Indian law and Indian values to the task of
dismissal. Gilbert, 330 U.S. at 509, 67 S. Ct. at 843; Piper, 454 resolving this case.
U.S. at 260, 102 S. Ct. at 268. Especially when, as here, all other
factors favor dismissal, the need to apply foreign law is a The Bhopal plant was regulated by Indian agencies. The Union of
significant consideration on this type of motion. Piper at 260, n. India has a very strong interest in the aftermath of the accident
29, 102 S. Ct. at 268, n. 29. A federal court is bound to apply the which affected its citizens on its own soil. Perhaps Indian
choice of law rules of the state in which an action was originally regulations were ignored or contravened. India may wish to
brought; even upon transfer to a different district, "the transferee determine whether the regulations imposed on the chemical
district court must be obligated to apply the state law that would industry within its boundaries were sufficiently stringent. The
have been applied if there had been no change of venue." Van Indian interests far outweigh the interests of citizens of the United
Dusen v. Barrack, 376 U.S. 612, 639, 84 S. Ct. 805, 821, 11 L. Ed. States in the litigation.
2d 945 (1964). Thus, this Court, sitting over a multidistrict
litigation, must apply the various choice of law rules of the states Plaintiffs, including the Union of India, have argued that the
in which the actions now consolidated before it were courts of India are not up to the task of conducting the Bhopal
brought.[26] Rather than undertake the task of evaluating the litigation. They assert that the Indian judiciary has yet to reach
choice of law rules of each state separately, the Court will treat full maturity due to the restraints placed upon it by British
the choice of law doctrine in toto. The "governmental interest" colonial rulers who shaped the Indian legal system to meet their
analysis, employed by many jurisdictions, requires a court to look own ends. Plaintiffs allege that the Indian justice system has not
to the question of which state has the most compelling interest in yet cast off the burden of colonialism to meet the emerging needs
the outcome of the case. India's interest in the outcome of the of a democratic people.
litigation exceeds America's, see supra at 44-58. The lex loci
delicti analysis used in other jurisdictions indicates that the law of The Court thus finds itself faced with a paradox. In the Court's
the state where the tort occurred should be applied. The place in view, to retain the litigation in this forum, as plaintiffs request,
which the tort occurred was, to a very great extent, India. Other would be yet another example of imperialism, another situation in
states apply the "most significant relationship" test, or "weight of which an established sovereign inflicted its rules, its standards
contacts" test, which evaluate in which state most of the events and values on a developing nation. This Court declines to play
constituting the tort occurred. The contacts with India with such a role. The Union of India is a world power in 1986, and its
respect to all phases of plant construction, operation, malfunction courts have the proven capacity to mete out fair and equal justice.
and subsequent injuries are greater in number than those with the To deprive the Indian judiciary of this opportunity to stand tall
United States. Thus, under any one of these three doctrines, it is before the world and to pass judgment on behalf of its own people
likely that Indian law will emerge as the operative law. An Indian would be to revive a history of subservience and subjugation from
court, therefore, would be better able to apply the controlling law which India has emerged. India and its people can and must
than would this United States Court, or a jury working with it. vindicate their claims before the independent and legitimate
This public interest factor also weighs in favor of dismissal on the judiciary created there since the Independence of 1947.
grounds of forum non conveniens.
This Court defers to the adequacy and ability of the courts of
India. Their interest in the sad events of December 2-3, 1984 at
the UCIL plant in the City of Bhopal, State of Madhya Pradesh,
CONCLUSION Union of India, is not subject to question or challenge. The
availability of the probative, relevant, material and necessary
It is difficult to imagine how a greater tragedy could occur to a evidence to Indian courts is obvious and has been demonstrated in
peacetime population than the deadly gas leak in Bhopal on the this opinion.
night of December 2-3, 1984. The survivors of the dead victims,
the injured and others who suffered, or may in the future suffer Therefore, the consolidated case is dismissed on the grounds
due to the disaster, are entitled to compensation. This Court is of forum non conveniens under the following conditions:
firmly convinced that the Indian legal system is in a far better
position than the American courts to determine the cause of the
tragic event and thereby fix liability. Further, the Indian courts
have greater access to all the information needed to arrive at the 1. Union Carbide shall consent to submit to the
amount of the compensation to be awarded the victims. jurisdiction of the courts of India, and shall
continue to waive defenses based upon the
The presence in India of the overwhelming majority of the statute of limitations;
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 2. Union Carbide shall agree to satisfy any
less than handful of claimants underscores the convenience of judgment rendered against it by an Indian court,
holding trial in India. All of the private interest factors described and if applicable, upheld by an appellate court
in Piper and Gilbert weigh heavily toward *867 dismissal of this in that country, where such judgment and
case on the grounds of forum non conveniens. affirmance comport with the minimal
requirements of due process;
The public interest factors set forth in Piper and Gilbert also favor
dismissal. The administrative burden of this immense litigation
3. Union Carbide shall be subject to discovery
under the model of the United States Federal
Rules of Civil Procedure after appropriate
demand by plaintiffs.

SO ORDERED.
634 F. Supp. 842 (1986) On December 7, 1984 the first lawsuit was filed by American
lawyers in the United States on behalf of thousands of
In re UNION CARBIDE CORPORATION GAS PLANT Indians. Dawani et al. v. Union Carbide Corp., S.D.W.Va.
DISASTER AT BHOPAL, INDIA IN DECEMBER, 1984. (84-2479). Since then 144 additional actions have been
Misc. No. 21-38 (JFK). commenced in federal courts in the United States. The actions
have all been joined and assigned by the Judicial Panel on
United States District Court, S.D. New York. Multidistrict Litigation to the Southern District of New York by
May 12, 1986. order of February 6, 1985, 601 F. Supp. 1035.

As Amended June 10, 1986. The individual federal court complaints have been superseded by
a consolidated complaint filed on June 28, 1985.
*843 Robins, Zelle, Larson & Kaplan, Minneapolis, Michael V.
Ciresi, Bruce A. Finzen, Roberta B. Walburn, D.S. Sastri of The Indian Government on March 29, 1985 enacted legislation,
counsel. Barrett, Smith, Schapiro, Simon & Armstrong, New the Bhopal Gas Leak Disaster (Processing of Claims) Act (21 of
York City, Gerald A. Novack, of counsel, for the Union of India. 1985) ("Bhopal Act"), providing that the Government of India has
the exclusive right to represent Indian plaintiffs in India and
Waite, Schneider, Bayless & Chesley Co., L.P.A., Cincinnati, elsewhere in connection with the tragedy. Pursuant to the Bhopal
Ohio, Stanley M. Chesley, Phillip B. Allen, Jan Levien, of Act, the Union of India, on April 8, 1985, filed a complaint with
counsel, Bailey & Broder, New York City, F. Lee Bailey, Michael this Court setting forth claims for relief similar to those in the
C. Zwal, of counsel, for individual plaintiffs. consolidated complaint of June 28, 1985.

Hoffinger, Friedland, Dobrish, Bernfeld & Hasen, New York City, By order of April 25, 1985 this Court established a Plaintiffs'
Jack S. Hoffinger, of counsel, Liaison Counsel. Executive Committee, comprised of F. Lee Bailey and Stanley M.
Chesley, Esqs., who represented individual plaintiffs and Michael
Kelley Drye & Warren, New York City, Bud G. Holman, William V. Ciresi, Esq., whose firm represents the Union of India. Jack S.
A. Krohley, Lisa E. Cleary, of counsel, for defendant. Hoffinger, Esq., who represents individual plaintiffs, was
appointed liaison counsel for the Plaintiffs' Executive
Christic Institute, Washington, D.C., Rob Hager, Shelley D. Committee.[1]
Hayes, of counsel, for Amicus Curiae.
On September 24, 1985, pursuant to the Bhopal Act, the Central
Government of India framed a "scheme" for the Registration and
Processing of Claims arising out of the disaster. According to the
*844 OPINION and ORDER Union of India's *845 counsel, over 487,000 claims have been
filed in India pursuant to the "scheme."
KEENAN, District Judge:
There presently are 145 actions filed in the United States District
Court for the Southern District of New York under the Judicial
Panel for Multidistrict Litigation's order of February 6, 1985,
involving approximately 200,000 plaintiffs.
FACTUAL BACKGROUND
Before this Court is a motion by the defendant Union Carbide
On the night of December 2-3, 1984 the most tragic industrial
Corporation ("Union Carbide") to dismiss the consolidated action
disaster in history occurred in the city of Bhopal, state of Madhya
on the grounds of forum non conveniens.
Pradesh, Union of India. Located there was a chemical plant
owned and operated by Union Carbide India Limited ("UCIL").
The plant, situated in the northern sector of the city, had
numerous hutments adjacent to it on its southern side which were
occupied by impoverished squatters. UCIL manufactured the DISCUSSION
pesticides Sevin and Temik at the Bhopal plant at the request of,
and with the approval of, the Government of India. (Affidavit of The doctrine of forum non conveniens allows a court to decline
John MacDonald ("MacDonald Aff.") at 2). UCIL was jurisdiction, even when jurisdiction is authorized by a general
incorporated under Indian law in 1934. 50.9% of its stock is venue statute. In support of its position that the consolidated
owned by the defendant, Union Carbide Corporation, a New York action before the Court should be transferred to a more
corporation. (MacDonald Aff. at 1). Methyl isocyanate (MIC), a convenient forum within the Union of India pursuant to this
highly toxic gas, is an ingredient in the production of both Sevin doctrine, Union Carbide relies on the United States Supreme
and Temik. On the night of the tragedy MIC leaked from the plant Court's decisions in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.
in substantial quantities for reasons not yet determined. Ct. 839, 91 L. Ed. 1055 (1947) and Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981).
The prevailing winds on the early morning of December 3, 1984 The plaintiffs cite numerous other lower United States federal
were from Northwest to Southeast. They blew the deadly gas into court cases in their briefs and seek to distinguish the Supreme
the overpopulated hutments adjacent to the plant and into the Court's decisions from this case. Of course, Gilbert and Piper are
most densely occupied parts of the city. The results were the touchstones in sorting out and examining the contentions of
horrendous. Estimates of deaths directly attributable to the leak both sides to this motion on the various factors bearing on
range as high as 2,100. No one is sure exactly how many perished. convenience.
Over 200,000 people suffered injuriessome serious and permanent
some mild and temporary. Livestock were killed and crops Piper teaches a straightforward formulation of the doctrine
damaged. Businesses were interrupted. of forum non conveniens. A district court is advised to determine
first whether the proposed alternative forum is "adequate." This
inquiry should proceed in the order followed below. Then, as a The Court listed numerous practical considerations which led to
matter within its "sound discretion," Piper at 257, 102 S. Ct. at its conclusion that an unfavorable change in law for plaintiff was
266, the district court should consider relevant public and private not a relevant factor in the forum analysis. First, the Court
interest factors, and reasonably balance those factors, in order to observed that if the chance of a change in law were given
determine whether dismissal is favored. This Court will approach substantial weight, choice of law questions would "become
the various concerns in the same direct manner in extremely important." Piper at 251, 102 S. Ct. at 263. U.S. courts
which Piper and Gilbertset them out. would "have to compare the rights, remedies, and procedures
available" within the two proposed alternative forums, to
At this juncture, it would be appropriate to discuss the determine whether a disadvantageous change in law would occur
presumptions on a forum non conveniens motion. In Piper, the upon transfer. Id. Since "[t]he doctrine of forum non
Court discussed its earlier finding in Koster v. Lumbermens conveniens, however, is designed in part to help courts avoid
Mutual Casualty Co., 330 U.S. 518, 67 S. Ct. 828, 91 L. Ed. 1067 conducting complex exercises in comparative law," the change in
(1947), which suggested that a plaintiff's choice of forum was law analysis would subvert the doctrine itself. Id. Thus, a court
entitled to great deference when the forum chosen was the home engaged in the inquiry regarding the existence and adequacy of an
of the plaintiff. This presumption was based on the fact that the alternative forum should not hinge its decision on an unfavorable
choice of the home forum indicated a reasonable assumption that change in law.[3]
the choice was convenient. Koster at 524, 67 S. Ct. at 831.
Conversely, the Piper Court found: Another practical concern relating to the "change in law" inquiry
was discussed by the Piper court. Based on the liberality of
United States federal law as compared to much foreign law with
respect to availability of strict liability for tort, malleable and
When the plaintiff is foreign, however, this diverse choice of law rules among the 50 states, availability of
assumption is much less reasonable. Because jury trials, contingent fee arrangements and extensive discovery
the central purpose of any forum non provisions, the Court observed that a change of forum might
conveniens inquiry is to ensure that the trial is frequently involve an unfavorable change of law for foreign
convenient, a foreign plaintiff's choice deserves plaintiffs suing American defendants. Piper at 252, n. 18, 102 S.
less deference. Ct. at 264, n. 18. Consequently, if the unfavorable change in law
were a major factor in the analysis:
Piper 454 U.S. at 256, 102 S. Ct. at 266 (footnote omitted).

In the case now before the Court, in which the plaintiffs,


including the Union of India, are foreign, and share a home forum [T]he American courts, which are already
which is not the instant forum, the assumption that this forum is extremely attractive to foreign plaintiffs, would
convenient is not completely reasonable. The foreign plaintiffs' become even more attractive. The flow of
choice of the United States forum "deserves less deference" than litigation into the United States would increase
would be accorded a United States citizen's choice. This Court and further congest already crowded courts.
will apply the presumption in favor of plaintiffs' choice of forum
with "less than maximum force." Piperat 261, 102 S. Ct. at Piper at 252, 102 S. Ct. at 264 (footnotes omitted).
268. See note 23 at 864, infra.
At the point, however, where the possible change in law would
provide "no remedy at all" to plaintiff, a court may conclude that
no adequate alternative exists. As the Piper Court observed, it did
1. Preliminary Considerations. not hold that:

"At the outset of any forum non conveniens inquiry, the court
must determine whether there exists an alternative [T]he possibility of an unfavorable change in
forum." Piper at 254, n. 22, 102 S. Ct. at 265, n. 22. The elements law should never be a relevant consideration in
of that inquiry are set forth in Piper. First, the Court said, a forum non conveniens inquiry. Of course, if
"[o]rdinarily, this requirement will be satisfied when the the remedy provided by the alternative forum is
defendant is `amenable to process' in the other so clearly inadequate or unsatisfactory that it is
jurisdiction." Piperat 254, n. 22, *846 102 S. Ct. at 265, n. 22, no remedy at all, the unfavorable change in law
quoting Gilbert 330 U.S. at 506-507, 67 S. Ct. at may be given substantial weight; the district
842. Gilbert states that the doctrine of forum non court may conclude that dismissal would not be
conveniens "presupposes at least two forums in which the in the interests of justice.
defendant is amenable to process."
Piper at 254, 102 S. Ct. at 265 (emphasis in original) (footnote
Extending the limited inquiry of Gilbert, the Piper Court delved omitted). Thus, while it *847 is not a "major factor" in the
into the relevance of the substantive and procedural differences in analysis, a court must at least consider the effect on plaintiffs of a
law which would be applied in the event a case was transferred on change in law upon transfer.
the grounds of forum non conveniens.The Piper Court determined
that it was theoretically inconsistent with the underlying doctrine
To a great extent, the plaintiffs in this case argue that Indian
of forum non conveniens, as well as grossly impractical, to
courts do not offer an adequate forum for this litigation by virtue
consider the impact of the putative transferee forum's law on the
of the relative "procedural and discovery deficiencies [which]
plaintiff in its decision on a forum non conveniens motion: "[I]f
would thwart the victims' quest for" justice. (Memorandum in
conclusive or substantial weight were given to the possibility of a
Opposition by Plaintiffs' Executive Committee ("Memo in Opp.")
change in law, the forum non conveniens doctrine would become
at 2). The defendant disputes this contention.
virtually useless." Piper 454 U.S. at 250, 102 S. Ct. at 263.[2]
Plaintiffs' preliminary concern, regarding defendant's amenability Galanter discusses the problems of delay and backlog in Indian
to process in the alternative forum, is more than sufficiently met courts. Indeed, it appears that India has approximately one-tenth
in the instant case. Union Carbide has unequivocally the number of judges, per citizen, as the United States,[6] and that
acknowledged that it is subject to the jurisdiction of the courts of postponements and high caseloads are widespread. Galanter urges
India (Defendant's Memorandum in Reply filed December 20, that the backlog is a result of Indian procedural law, which allows
1985 ("Reply Memo") at 8); (oral argument January 3, 1986, for adjournments in mid-hearing, and for multiple interlocutory
transcript at 29, comment of Bud Holman, counsel for Union and final appeals. Numerous appeals and "[c]onsiderable delay
Carbide). Union Carbide is definitely amenable to process in [are] caused by the tendency of courts to avoid the decision of all
India. the matters in issue in a suit, on the ground that the suit could be
disposed of on a preliminary point." (Galanter Aff. at 17; 18-20,
Beyond this initial test, plaintiffs and amicus curiae[4] argue that 21, quoting Indian Law Commission, 54th Report (1973) pp.
the Indian legal system is inadequate to handle the Bhopal 12-13).
litigation. In support of this position, plaintiffs have submitted the
affidavit of Professor Marc S. Galanter of the University of This Court acknowledges that delays and backlog exist in Indian
Wisconsin Law School. Professor Galanter's credentials are courts, but United States courts are subject to delays and backlog,
impressive; he was a Fulbright Scholar at the Faculty of Law of too. See Remarks of Honorable Warren E. Burger, Chief Justice,
Delhi University and specializes in South Asian Studies at the Supreme Court of the United States, 100 F.R.D. 499, 534 (1983).
University of Wisconsin Law School. He is not, however,
admitted to practice in India and the Court views his opinions However, as Mr. Palkhivala states, while delays in the Indian
concerning the Indian legal system, its judiciary and bar as far legal system are a fact of judicial life in the proposed alternative
less persuasive than those of N.A. Palkhivala and J.B. Dadachanji, forum, there is no reason to assume that the Bhopal litigation will
each of whom has been admitted to practice in India for over 40 be treated in ordinary fashion.
years. Both are Senior Advocates before the Supreme Court of
India. Mr. Palkhivala served as Indian Ambassador to the United The Bhopal tragedy has already been approached with
States from 1977 to 1979, and has represented the Indian imagination in India. Demonstrating the creativity and flexibility
government on three occasions before international tribunals. of the Indian system, the Parliament of India has passed the
Bhopal Act in order to deal with the cases arising from the sad
Although the outcome of this analysis, given the rule events of December 3, 1984. The Bhopal Act permits the cases to
of Piper regarding change in law, seems self-evident, the Court be treated "speedily, effectively, equitably and to the best
will review plaintiffs' argument on the inadequacy of the Indian advantage of the claimants." (Palkhivala Aff. at 11).
forum out of deference to the plaintiffs.
Mr. Dadachanji refers to another Indian case which arose from a
gas leak in New Delhi. The Chief Justice and another Justice of
the Supreme Court of India ordered the presiding court to
A. Innovation in the Indian Judicial System. expedite adjudication of claims. MC Mehta v. Union of
India. (Dadachanji Aff. at 11 and Annexure A thereto). In another
Professor Galanter describes the Indian common law legal system, instance, the Indian Supreme Court directed the High Court to
inherited from the British, in terms of its similarity to that of other hear a given matter on a daily basis, and set a deadline for
common law systems. He compares the system favorably to that delivering judgment (Dadachanji Aff. at 11 and Annexure B
of the United States or Great Britain in terms of the appellate thereto). Other means of coping with delay are appointment of
structure, the rule of stare decisis, the role of the judiciary as special tribunals by the Government of India (Dadachanji Aff. at
"guardian of [India's] democratic structure and protector of 12 and Annexure C thereto), and assignment of daily hearing
citizens' rights." (Galanter Aff., at 6-12) before pointing to its duties to a single special judge, otherwise unburdened, to hear a
ostensible deficiencies. According to Professor Galanter, India's special matter. (Dadachanji Aff. at 11). This Court is persuaded,
legal system "was imposed on it" during the period of colonial by the example of the Bhopal Act itself and other cases where
rule. (Galanter Aff. at 11). Galanter argues that "Indian legal special measures to expedite were taken by the Indian judiciary,
institutions still reflect their colonial origins," (Galanter Aff. at that the most significant, urgent and extensive litigation ever to
12), in terms of the lack of broadbased legislative activity, arise from a single event could be handled through special judicial
inaccessibility of legal information and legal services, accommodation in India, if required.
burdensome court filing fees and limited innovativeness with
reference to legal practice and education. (Galanter Aff. at 12).

On the question of innovativeness, Mr. Palkhivala responds with C. Procedural and Practical Capacity of Indian Courts.
numerous examples of novel treatment of complex legal issues by
the Indian Judiciary.[5] In the words of the former ambassador of Plaintiffs contend that the Indian legal system lacks the
India to the United States, "a legal system is not *848 a structure wherewithal to allow it "to deal effectively and expeditiously"
of fossils but is a living organism which grows through the with the issues raised in this lawsuit. (Memo in Opp. p. 53).
judicial process and statutory enactments." (Palkhavala Aff. at 3).
The examples cited by defendant's experts suggest a developed Plaintiffs urge that Indian practitioners emphasize oral skills
and independent judiciary. Plaintiffs present no evidence to rather than written briefs. They allegedly lack specialization,
bolster their contention that the Indian legal system has not practical investigative techniques and coordination into
sufficiently emerged from its colonial heritage to display the partnerships. These factors, *849 it is argued, limit the Indian
innovativeness which the Bhopal litigation would demand. Their bar's ability to handle the Bhopal litigation. As Mr. Dadachanji
claim in this regard is not compelling. indicates, Indian lawyers have competently dealt with complex
technology transfers, suggesting capability within the
technological and scientific areas of legal practice, if not
"specialization." (Dadachanji Aff. at 8). Moreover, Indian
B. Endemic Delays in the Indian Legal System. attorneys use experts, when necessary. As to investigative ability,
Mr. Dadachanji persuasively points out that the Central Bureau of *850 The plant itself was the product of highly
Investigation ("CBI") of the Union of India is well equipped to complex technology, but complexity of the
handle factual inquiry, as is the Commission of Enquiry technology cannot be equated with complexity
constituted by the state of Madhya Pradesh. (Dadachanji Aff. at 8). of legal issues. The principles of liability and
While Indian attorneys may not customarily join into large law damages involved in the Bhopal cases are all
firms, and as Mr. Palkhivala states, are limited by present Indian well established in India. The complexity is not
law to partnerships of no more than twenty, this alone or even in in the nature or determination of legal issues but
concert with other factors does not establish the inadequacy of the in the application of the law to the events which
Indian legal system. (Palkhivala Aff. at 8). There is no reason the took place in Bhopal. Well settled law is to be
Indian legislature could not provide for the expansion of lawfirms, applied to an unusual occurrence.
if such a choice is required. In any event, this Court is not
convinced that the size of a law firm has that much to do with the (Palkhivala Aff. at 7).
quality of legal service provided. Many small firms in this country
perform work at least on a par with the largest firms. Bigger is not Plaintiffs next assert that India lacks certain procedural devices
necessarily better. which are essential to the adjudication of complex cases, the
absence of which prevent India from providing an adequate
Moreover, since the Union of India purports to represent all the alternative forum. They urge that Indian pre-trial discovery is
claimants, it is likely that if the case were transferred to India, the inadequate and that therefore India is an inadequate alternative
Attorney General or Solicitor General of India and the Advocate forum. Professor Galanter states that the only forms of discovery
General of Madhya Pradesh, with attendant staffs, would available in India are written interrogatories, inspection of
represent the claimants. The Indian bar appears more than capable documents, and requests for admissions. Parties alone are subject
of shouldering the litigation if it should be transferred to India. to discovery. Third-party witnesses need not submit to discovery.
(Palkhivala Aff. at 9). Discovery may be directed to admissible evidence only, not
material likely to lead to relevant or admissible material, as in the
Next, plaintiffs and Professor Galanter argue that the substantive courts of the United States. Parties are not compelled to provide
tort law of India is not sufficiently developed to accommodate the what will be actual proof at trial as part of discovery.
Bhopal claims. Plaintiffs trace the lack of sophistication in Indian
tort law to the presence of court fees for litigants as inhibiting the These limits on discovery are adopted from the British system.
filing of civil suits. Though the filing fees may have had historical Similar discovery tools are used in Great Britain today. This
significance, they are irrelevant here. Professor Galanter Court finds that their application would perhaps, however, limit
acknowledges that court fees may be waived for "poor parties or the victims' access to sources of proof. Therefore, pursuant to its
for specific classes of litigants." (Galanter Aff. at 28). In fact, equitable powers, the Court directs that the defendant consent to
filing fees have been waived for claimants in India in the Bhopal submit to the broad discovery afforded by the United States
litigation already begun there. Federal Rules of Civil Procedure if or when an Indian court sits in
judgment or presides over pretrial proceedings in the Bhopal
Professor Galanter asserts that India lacks codified tort law, has litigation.[7] Any dismissal of the action now before this Court is
little reported case law in the tort field to serve as precedent, and thus conditioned on defendant's consent to submit to discovery on
has no tort law relating to disputes arising out of complex product the American model, even after transfer to another jurisdiction.
or design liability. (Galanter Aff. at 30-36). As an illustration of
the paucity of Indian tort law, Professor Galanter states that a The ostensible lack of devices for third-party impleader or for
search through the All-India Reportsfor the span from 1914 to organizing complex cases under the law of the state of Madhya
1965 revealed only 613 tort cases reported. (Galanter Aff. at 32). Pradesh are two other procedural deficiencies which plaintiffs
Mr. Dadachanji responds that tort law is sparsely reported in India assert preclude a finding that India offers an adequate alternative
due to frequent settlement of such cases, lack of appeal to higher forum. Assuming for the moment that, upon appropriate transfer,
courts, and the publication of tort cases in specialized journals the Bhopal litigation would be adjudicated by the local district
other than the All-India Reports. (Dadachanji Aff. at 16-17; court in Bhopal, and that the law of Madhya Pradesh would be
Palkhivala Aff. at 10). In addition, tort law has been codified in applied, this Court is still not moved by plaintiffs' argument
numerous Indian statutes. (Dadachanji Aff. at 16-17). regarding impleader or complex litigation.

As Professor Galanter himself states, "the major categories of tort, Although no specific provision in the Indian Code of Civil
their elements, the [theories] of liability, defenses, respondeat Procedure permits the impleading of third-parties from whom
superior, the theories of damagesare all familiar." (Galanter Aff. contribution is sought, other provisions in the Code do provide for
at 37). What is different, Galanter asserts, is the complete absence impleader. As both parties to this motion state, Order 1, Rule 10(2)
of tort law relating to high technology or complex manufacturing of the Indian Code of Civil Procedure "allows the court to add
processes. This is of no moment with respect to the adequacy of additional parties if the presence of those parties is `necessary in
the Indian courts. With the groundwork of tort doctrine adopted order to enable the Court effectively and completely to adjudicate
from the common law and the precedential weight awarded upon and settle all questions involved in the suit.'" (Galanter Aff.
British cases, as well as Indian ones, it is obvious that a at 60; Dadachanji Aff. at 18). Professor Galanter posits that a joint
well-developed base of tort doctrine exists to provide a guide to tortfeasor would not be considered a necessary party, and would
Indian courts presiding over the Bhopal litigation. In any event, not be joined. Defendant's expert, conversely, asserts that a party
much tort law applied in American cases involving complex can be added to prevent multiplicity of suits and conflicts of
technology has its source in legal principles first enunciated in decisions. Thus, Mr. Dadachanji argues, defendants would be able
Victorian England. See, e.g., Rylands v. Fletcher, 1868, L.R. 3 to seek contribution from third-parties if joinder would prevent
H.L. 330. As Mr. Palkhivala stated in his affidavit: repetitive litigation or inconsistency. Moreover, the broad
provision of inherent powers to aid the ends of justice, as codified
at Section 151 of the Indian Code of Civil Procedure would
prevent an ultimate miscarriage of *851 justice in the area of
impleader. (Dadachanji Aff. at 19).[8]
The absence of procedures or mechanisms within the Indian of the Indian law of res judicata. He asserts that the pendency, or
judiciary to handle complex litigation is presented as support for even final disposition, of an action in a foreign court does not
plaintiffs' position regarding the non-existence of an adequate prevent plaintiffs from suing in India upon the original cause of
alternative forum. Professor Galanter asserts, for example, that action. Plaintiffs would not be limited, Mr. Dadachanji argues, to
Indian judges do not promote settlements. The point is wholly an Indian action to enforce the foreign judgment. (Dadachanji Aff.
irrelevant to the question of whether an adequate alternative at 19-20). In addition, he states that an Indian court, before
forum exists. In any event, this Court has labored hard and long to ordering that a foreign judgment be given effect, would seek to
promote settlement between the parties for over a year, to no avail. establish whether the foreign court had failed to apply Indian law,
It would appear that settlement, although desirable for many or misapplied Indian law. (Dadachanji Aff. at 20).
reasons, including conservation of attorneys' fees and costs of
litigation, preservation of judicial resources, and speed of The possibility of non-enforcement of a foreign judgment by
resolution, is unlikely regardless of the level of activism of the courts of either country leads this Court to conclude that the issue
presiding judge. must be addressed at this time. Since it is defendant Union
Carbide which, perhaps ironically, argues for the sophistication of
Plaintiffs' next contention is that since no class action procedure the Indian legal system in seeking a dismissal on grounds
exists in India expeditious litigation of the Bhopal suits would be of forum non conveniens, and plaintiffs, including the Indian
impossible. As with all of plaintiffs' other arguments, this Government, which state a strong preference for the American
purported deficiency does not constitute "no remedy" at all. legal system, it would appear that both parties have indicated a
Professor Galanter himself acknowledges that Order 1, Rule 8 of willingness to abide by a judgment of the foreign nation whose
the Indian Code of Civil Procedure provides a mechanism for forum each seeks to visit. Thus, this Court conditions the grant of
"representative" suits, "where there are numerous persons having a dismissal on forum non conveniens grounds on Union Carbide's
the same interest in one suit." (Galanter Aff. at 54). Even if the agreement to be bound by the judgment of its preferred tribunal,
current state of Indian law regarding "representative" suits located in India, and to satisfy any judgment rendered by the
involves application of the mechanism to pre-existing groups such Indian court, and affirmed on appeal in India. Absent such
as religious sects or associations, there is no reason to conclude consent to abide by and to "make good" on a foreign judgment,
that the Indian legislature, capable of enacting the Bhopal Act, without challenge except for concerns relating to minimal due
would not see its way to enacting a specific law for class actions. process, the motion to dismiss now under consideration will not
In addition, it does not appear on the face of Order 1, Rule 8 that be granted. The preference of both parties to play ball on a distant
the "representative" suit is expressly limited to preexisting groups. field will be taken to its limit, with each party being ordered to be
The Indian district court could adopt the rule for use in a newly bound by the decision of the respective foreign referees.
created class of injured, whose members all have "the same
interest" in establishing the liability of the defendant. An Indian To sum up the discussion to this point, the Court determines that
court has law available to create a representative class, or perhaps the Indian legal system provides an adequate alternative forum for
a few different representative classes. The "scheme" for the Bhopal litigation. Far from exhibiting a tendency to be so
registration and processing of claims, see supra, at 4, could "inadequate or unsatisfactory" as to provide "no remedy at all,"
perform the task of evaluating the specific amounts of claims. the courts of India appear to be well up to the task of handling this
Moreover, Mr. Dadachanji gives at least three examples where case. Any unfavorable change in law for plaintiffs which might be
Indian courts have consolidated suits pursuant to their inherent suffered upon transfer to the Indian courts, will, by the rule
power under Section 151 of the Indian Code of Civil Procedure. of Piper, not be given "substantial weight." Differences between
In at least one case, such consolidation allegedly occurred without the two legal systems, even if they inure to plaintiffs' detriment,
consent of the parties. (Dadachanji Aff. at 9). The absence of a do not suggest that India is not an adequate alternative forum. As
rule for class actions which is identical to the American rule does Mr. Palkhivala asserts with some dignity, "[w]hile it is true to say
not lead to the conclusion that India is not an adequate alternative that the Indian system today is different in some respects from the
forum. American system, it is wholly untrue to say that it is deficient or
inadequate. Difference is not to be equated with deficiency."
Final points regarding the asserted inadequacies of Indian (Palkhivala Aff. at 4). Piper at 254, 102 S. Ct. at 265. The inquiry
procedure involve unavailability of juries or contingent fee now turns to a weighing of the public and private interest factors.
arrangements in India. Plaintiffs do not press these arguments, but
Mr. Palkhivala touches upon them. They are easily disposed of.
The absence of juries in civil cases is a feature of many civil law
jurisdictions, and of the United Kingdom. Piper at 252, n. 18, 102 2. Private Interest Concerns.
S. Ct. at 264, n. 18 and citations therein. Furthermore,
contingency fees are not found in most foreign The Gilbert Court set forth a list of considerations which affect
jurisdictions. Piper at 252, n. 18, 102 S. Ct. at 264, n. 18. In any the interests of the specific litigants to an action, and which
event, the lack of contingency fees is not an insurmountable should be weighed in making a forum non
barrier to filing claims in India, as demonstrated by the fact that conveniens determination. The so-called private interest factors,
more than 4,000 suits have been filed by victims of the Bhopal along with public interest factors discussed below, were not
gas leak in India, already. According to Mr. Palkhivala, moreover, intended to be rigidly applied. As the Court stated in Piper,
well-known lawyers have been known to serve clients without
charging any fees. (Palkhivala Aff. at 8).

Plaintiffs' final contention as to the inadequacy of the Indian "[E]ach case turns on its facts." If central
forum is that a judgment rendered by an Indian court cannot be emphasis were placed on any one factor,
enforced in the United States without *852 resort to further the forum non conveniensdoctrine would lose
extensive litigation. Conversely, plaintiffs assert, Indian law much of the flexibility that makes it so valuable.
provides res judicata effect to foreign judgments, and precludes
plaintiffs from bringing a suit on the same cause of action in India. Piper at 249-50, 102 S. Ct. at 263. Recognizing that
(Galanter Aff. at 63-65). Mr. Dadachanji disputes this description "[p]articularly with respect to the question of relative ease of
access to sources of proof," "the private interests point in both In *854 addition, the Utilities and Electrical department employed
directions," the Supreme Court nevertheless upheld a district 195 people. (Woomer Aff. at 13). According to Mr. Woomer, the
court's decision to dismiss a case in favor of the relative various maintenance organizations performed repairs on
convenience of a forum in Scotland. Piper at 257, 102 S. Ct. at equipment, provided engineering support, fabricated certain
267. By contrast, this Court finds that the private equipment, salvaged other portions, and controlled utilities,
interests *853 point strongly one way. As in Piper, it appears that temperatures and pressures throughout the plant. (Woomer Aff. at
the burdensome effect of a trial in this forum supports a finding 11-14).
that the private interest factors in this case weigh strongly in favor
of dismissal. Moreover, according to Mr. Woomer, these UCIL departments
also kept daily, weekly and monthly records of plant operations,
many of which were purportedly seized by the CBI and selected
for copying by CBI immediately after the accident.[13] The
A. Sources of Proof. records and reports of the various maintenance units would likely
be relevant to the question of liability at trial.
The first example of a private interest consideration discussed
in Gilbert is "relative ease of access to sources of proof." As Of the additional functional units, it is possible that Quality
stated, the analysis of this issue must hinge on the facts. Limited Control, with 54 employees, Purchasing, with 53, or Stores may
discovery on the issue of forum non conveniens has taken place, have been directly involved in the disaster by virtue of their
pursuant to the Court's order of August 14, 1985.[9] The Court participation in analyzing plant output, procuring raw materials
can therefore proceed to discuss this question. for the chemical processes of the plant, and maintaining spare
parts and certain chemicals. (Woomer Aff. at 14-19). Thus, the
Union Carbide argues that virtually all of the evidence which will records and reports of these three departments may be necessary
be relevant at a trial in this case is located in India. Union to an investigation of liability. While examination of members of
Carbide's position is that almost all records relating to liability, the Works Office department and Industrial Relations department
and without exception, all records relevant to damages, are to be would likely be less directly useful, information regarding plant
found in and around Bhopal. On the liability question Union budgets and employee histories might be of relevance. Of great
Carbide asserts that the Bhopal plant was managed and operated importance are the records and reports of the Safety/Medical
entirely by Indian nationals, who were employed by UCIL. department, which was responsible for daily auditing of safety
(Affidavit of Warren J. Woomer, formerly Works Manager of the performance in all departments, training and testing on safety
Bhopal plant ("Woomer Aff.") at 2). Defendant asserts that the rules, maintaining safety statistics and planning and implementing
Bhopal plant is part of UCIL's Agricultural Products Division, safety drills. (Woomer Aff. at 22-23). The 31 Indian employees of
which has been a separate division of UCIL for at least 15 years, this department worked with the Central Safety Committee of the
and that the plant had "limited contact" with UCIL's Bombay plant, whose members were drawn from plant management, and
headquarters, and almost no contact with the United States. the Departmental Safety Committees. Operating units were
(Woomer Aff. at 4, 32). Woomer claims to have been the last required to monitor plant safety mechanisms weekly, and to keep
American employed by UCIL. He departed from Bhopal in 1982. monthly checklists. (Holman Aff. # 2 at 9). The Central Safety
(Woomer Aff. at 2). Committee met monthly, as did the Departmental Safety
Committees. (Woomer Aff. at 39). The MIC Unit held monthly
Woomer describes the structure and organization of the Bhopal safety committee meetings, for example, and issued monthly
facility at the time of the accident. The plant had seven operating reports. (Woomer Aff. at 41). Quarterly "Measures of
units, each headed by a manager or department head, each an Performance" reviews also covered safety issues, and were
Indian national.[10] The managers or department heads each required of each operating unit. (Woomer Aff. at 40). Certainly,
reported either directly to the plant's General Works Manager, or interviews of the plant personnel involved in safety reports and
to one of three Assistant Works Managers. (Woomer Aff. at 6). audits would be particularly relevant to the investigation of the
Each of these is also an Indian national. Three of the operating disaster.
units which at this very early stage of inquiry into liability appear
to have been potentially involved in the MIC leak are the Carbon Plaintiffs refer to three occasions upon which Union Carbide, not
Monoxide, MIC/Phosgene and Carbamoylation units. (Woomer UCIL, employees conducted safety audits at the Bhopal plant. As
Aff. at 7-10). The Carbon Monoxide and MIC/Phosgene units defendant correctly argues, these three events constitute a very
together employed 63 employees, all Indian nationals. (Woomer small fraction of the thousands of safety audits conducted at the
Aff. at 9). The Carbamoylation unit employed 99 Indian nationals. Bhopal facility. The three audits, moreover, were conducted in
(Woomer Aff. at 10). Mr. Woomer states that an inquiry into the 1979, the fall of 1980 and in May of 1982, many years prior to the
cause of the accident would require interviews with at least those accident which is the subject of this lawsuit. (Plaintiffs' Memo in
employees who were on duty at the Bhopal facility "immediately Opp. at 25).[14]
prior or after the accident;" Mr. Woomer asserts that there are 193
employees, all Indians, who must be interviewed. (Woomer Aff. Two accidents which occurred previously at the Bhopal plant
at 58).[11] might also be of relevance to the liability inquiry in this litigation.
On December 24, 1981, a phosgene gas leak killed a UCIL
In addition to the seven operating units, the Bhopal plant maintenance worker. *855 Reports of the fatality were sent to
contained seven functional departments which serviced Union Carbide management in the United States. (Woomer
operations.[12] The seven heads of the units reported within the Deposition, Exs. 30 and 31). Plaintiffs assert that the accident
plant much as the department heads did. report called for increased training in Bhopal by United States
employees of Union Carbide's Institute, West Virginia, plant.
The maintenance unit was apparently subdivided into departments Defendant states that the responsibility for remedying problems in
including Instrumentation, Mechanical Maintenance, both part of the Bhopal plant rested with the plant itself, and that Union
the Agricultural Chemical Maintenance unit, which employed 171 Carbide did not make any recommendations, and was involved
people in total, and Plant Engineering and Formulation only to the extent of receiving a copy of the report which called
Maintenance, which employed 46 people. (Woomer Aff. at 11-12). for its involvement in further training. (Woomer Aff. at 41).
The second accident at Bhopal prior to the disaster of December, terms of any agreements UCIL made with foreign companies such
1984 took place on February 9, 1982, when a pump seal, perhaps as Union Carbide Corporation." (Brown Aff. at 3-4).[16]
improperly used, failed. (Memo in Opp. at 24; Woomer Aff. at
41). Many employees were injured, and at least 25 were Mr. Brown alleges that the Letter of Intent issued by the Union of
hospitalized. Plaintiffs discuss the fact that Robert Oldford, India in March 1972, pursuant to which construction and design
president of Union Carbide Agricultural Products Company of the plant were allowed to ensue provided, inter alia, that:
("UCAPC") a wholly-owned subsidiary of Union Carbide
headquartered in the United States, was in Bhopal at the time of
the February 1982 leak. (Memo in Opp. at 24). Union Carbide
asserts that Mr. Oldford was visiting UCIL's Research and (2) [F]oreign collaboration and import of
Development Centre, located several miles from the Bhopal plant equipment be settled to the satisfaction of the
for an unrelated purpose, and was only coincidentally in Bhopal Government.
when the leak occurred. To the extent that this presence in India
in 1982 has any significance, Mr. Oldford, and any other United Mr. Brown claims, on personal information, that UCIL told him
States employees of Union Carbide who conducted safety audits that Union Carbide would not be allowed to be involved in the
in Bhopal or were present when accidents occurred there, may be Bhopal project beyond the provision of process design packages.
flown to Bhopal for testimony or discovery. (Brown Aff. at 5). The Design Transfer Agreement indicates that
Union Carbide's duty under the Agreement was to provide
In addition to safety data, two other types of proof may be process design packages, and that UCIL, not Union Carbide,
relevant to a trial of this case on the merits. Information regarding would be responsible to "detail design, erect and commission the
plant design, commissioning and start-up may bear upon the plant." (Defendant's Ex. 4, § 4.1). Union Carbide, accordingly,
liability question. Information pertinent to employee training issued limiting warranties with respect to the design packages,
should also have significance. detailing of which it would not be involved with. (Brown Aff. at 7,
Ex. 4, §§ 4.1, 12.3).
Leaving aside the question of whether the Government of India or
UCIL chose the site and product of the Bhopal plant, the Court The nature of UCIL's detail design work is discussed in the
will evaluate the facts which bear on the issue of relevant records. affidavit of Ranjit K. Dutta, who has held various positions at
The findings below concern the location of proof only, and bear UCIL and UCAPC. From 1973 through 1976, Mr. Dutta was
solely upon the forum non conveniens motion. The Court employed as General Manager of the Agricultural Products
expressly declines to make findings as to actual liability at this Division of UCIL. (Dutta Aff. at 2).
stage of the litigation.
Mr. Dutta asserts that the Bhopal facility was built by UCIL over
Plaintiffs and defendant agree that in 1973 Union Carbide entered the eight years from 1972 to 1980. (Dutta Aff. at 8). He asserts
into two agreements with UCIL which were entitled "Design that Union Carbide's role in the project was "narrow", and limited
Transfer Agreement" and "Technical Service Agreement." to providing "certain process design packages for certain parts of
According to plaintiffs, Union Carbide, pursuant to the Design the plant." (Dutta Aff. at 9). He continues, stating:
Transfer Agreement, provided a process design to UCIL, the
"detailing [of which] was undertaken in India." (Memo in Opp. at
17). The process design package consisted of the basic plan of the
factory, which was to be fleshed out in the detailing phase. Once it did that, it had no further design or
Plaintiffs state that at least nine Union Carbide technicians engineering role,
travelled to India to monitor the progress of the project. Union
Carbide also allegedly assigned a "key engineer," John Couvaras, and that:
to serve as UCIL Bhopal project manager. Mr. Couvaras allegedly
"assumed responsibility for virtually every aspect of the detailing
of the process design," and approved detail reports of "not only
[T]he process design packages which Union
UCIL but also independent contractors, including Humphreys &
Carbide Corporation provided are nothing more
Glasgow Consultants Private Ltd. and Power Gas Limited" of
than summary design starting points.... They set
Bombay, India. (Memo in Opp. at 17-20).[15]
forth only the general parameters.... A plant
cannot be constructed from a process design
Plaintiffs also claim that "[n]o change of any substance was made
package. The detail design comprises
from Union Carbide's design during the detailing phase."
approximately 80 percent of the sum of the man
Plaintiffs note that only "one portion" of the process design work
hours involved in the design of any project and
provided to UCIL by Union Carbide was not used. (Memo in Opp.
transposes the general process design
at 20). In effect, plaintiffs seek to establish that Union Carbide
parameters into an actual design which can be
was the creator of the design used in the Bhopal plant, and
used for purchasing equipment and actual
directed UCIL's relatively minor detailing program. They urge
construction.
that for the most *856 part relevant proof on this point is located
in the United States.
(Dutta Aff. at 9-12). (emphasis omitted).
Defendant seeks to refute this contention, with notable success.
According to Mr. Dutta, during the five years between the date
Turning first to the affidavit of Robert C. Brown, who describes
upon which Union Carbide submitted process designs, and the
himself as "chief negotiator for Union Carbide Corporation in
date upon which the plant started-up, there were only four visits
connection with the two agreements it entered into with ... UCIL
to Bhopal by Union Carbide process design engineers. (Dutta Aff.
in November, 1973," the Court is struck by the assertion that the
at 14). In contrast, he asserts that ten to fifteen UCIL engineers,
two agreements were negotiated at "arms-length" pursuant to
working primarily out of Bombay, were involved in design
Union Carbide corporate policy, and that the Union of India
detailing. (Dutta Aff. at 16). These UCIL engineers oversaw the
mandated that the Government retain "specific control over the
55 to 60 Indian engineers *857 employed by the Bombay small portion. (Woomer Aff. at 46). Personnel records, in any
engineering firm which performed the detail design work. This event, are located in Bhopal. (Holman Aff. # 2 at 4).
firm, Humphreys and Glasgow, submitted designs and drawings
to the UCIL engineers for approval. Corrected drawings were The briefs and affidavits contain considerable discussion on the
returned by UCIL to Humphreys and Glasgow for changes, and matter of commissioning and start-up of the Bhopal plant. The
sent back to UCIL for final approval. (Dutta Aff. at Court need not resolve the question of who was responsible for
19-24).[17] Mr. Dutta alleges that "at no time were Union Carbide these aspects of plant operation. However, the Court determines
Corporation engineering personnel from the United States that the manual regarding start-up was prepared by Indian
involved in approving the detail design or drawings prepared nationals employed by UCIL. (Woomer Aff. at 48).
upon which construction was based. Nor did they receive notices
of changes made." (Dutta Aff. at 24). In the aggregate, it appears to the Court that most of the
documentary evidence concerning design, training, safety and
Mr. Dutta expressly states that the MIC storage tank and start-up, in other words, matters bearing on liability, is to be
monitoring instrumentation were fabricated or supplied by two found in India. Much of the material may be held by the Indian
named Indian sub-contractors. The vent gas scrubber is alleged to CBI. Material located in this country, such as process design
have been fabricated in the Bhopal plant shop. (Dutta Aff. at 25). packages and training records of the 40 UCIL employees trained
at Institute, constitutes a smaller portion of the bulk of the
Of the 12,000 pages of documents purportedly seized by the CBI pertinent data than that found in India. Moreover, while records in
regarding design and construction of the Bhopal plant, an asserted this country are in English, a language understood in the courts of
2,000 are design reports of Humphreys and Glasgow, UCIL or India, certain of the records in India are in Hindi or other Indian
other contractors. Defendant claims that blueprints and languages, as well as in English. (Holman Aff. # 2 at 12). The
calculations comprise another 1,700 pages of documents held by Indian language documents would have to be translated to be of
the CBI. Five thousand pages of contractors' files, including use in the United States. The reverse is not true. It is evident to
specifications and contracts are asserted to be in India. In addition, the Court that records concerning the design, manufacture and
Union Carbide claims that blueprints and diagrams may not operation of the Bhopal plant are relatively more accessible in
reflect final design changes as incorporated into the actual plant, India than in the United States, and that fewer translation
and that the detail design engineers' testimony will be needed to problems would face an Indian court than an American court.
determine the configuration of the actual plant.[18] (Holman Aff. Since Union Carbide has been directed to submit to discovery in
# 2 at 15-16). India pursuant to the liberal grant of the American Federal Rules
of Civil Procedure, and this opinion is conditioned upon such
One final point bearing on the information regarding liability is submission, any records sought by plaintiffs must be made
contained in the affidavit of Edward Munoz, at a relevant time the available to them in India. The private interest factor of relative
General Manager of UCIL's Agricultural Products Division. He ease of access to sources of proof bearing on liability favors
later acted as Managing Director of UCIL. Mr. Munoz has dismissal of the consolidated case.[20] The
submitted an affidavit in which he states that Union Carbide Indian *859 Government is asserted to have been involved in
decided to store MIC in large quantities at the Bhopal plant, safety, licensing and other matters relating to liability. Records
despite Mr. Munoz' warnings that MIC should be stored only in relating thereto are located in India, as are the records seized by
small amounts because of safety. (Memo in Opp. at 15-16; Munoz the CBI. Although plaintiffs state that all such records could and
Aff.). Mr. Dutta, for defendant, asserts that there was never any would be made available to this Court, it would be easier to
issue of token storage of MIC at Bhopal, as Mr. Munoz states, and review them in India. Transmittal and translation problems would
that there is no truth to Mr. Munoz' assertion that he was involved thereby be avoided.
in the storage issue. (Dutta Aff. at 30).[19]*858 The Court cannot
make any determination as to the conflicting affidavits before it. B. Access to Witnesses.
This question, which involves credibility concerns, is left for later
in the litigation. To the extent that this particular matter bears Gilbert teaches a second important consideration under the
upon the relative ease of access to sources of proof, Mr. Munoz heading of private interests, the "availability of compulsory
and Mr. Dutta both may be called to testify at trial or discovery. process for attendance of willing, and the cost of obtaining
Mr. Dutta's home is in Bhopal. (Dutta Aff. at 1). The Court is not attendance of unwilling, witnesses." Gilbert, 330 U.S. at 508, 67
aware of the whereabouts of Mr. Munoz at this time. Either of the S. Ct. at 843. As discussed in detail above, most witnesses whose
two could travel to either alternative forum. testimony would relate to questions of causation and liability are
in India. Engineers from UCIL and Humphreys and Glasgow and
In addition to design and safety records, material regarding other subcontractors, of whom there are hundreds, are located in
training of Bhopal personnel is likely to be relevant to the India. Shift employees from the possibly malfunctioning units,
question of liability. Plaintiffs state that Warren Woomer safety monitoring personnel, those responsible for training, safety
supervised the training of UCIL personnel at Union Carbide's auditing, procurement, compliance with regulations and other
Institute, West Virginia plant. According to plaintiffs, 40 UCIL operations might be required to testify. More than likely, many of
employees were transported to Institute's MIC facility for lengthy these potential witnesses do not speak English, and would require
training. (Memo in Opp. at 22). Mr. Woomer states in reply that translators. Many of the witnesses are not parties to this litigation.
the 40 employees thus trained represented a fraction of the over Therefore, as the Court of Appeals for the Second Circuit has
1,000 employees who were trained exclusively in Bhopal. stated in the context of a forum non conveniens motion:
(Woomer Aff. at 43). In addition, Mr. Woomer asserts that the
training at Institute was pursuant to an arms-length agreement,
that UCIL selected the parties to be trained, and that UCIL paid
Union Carbide for the training. (Woomer Aff. at 43). Moreover, In fact, the plaintiffs' cases on liability will
Mr. Woomer's description of the training provided at Bhopal depend in large measure upon the knowledge
suggests that each of the plant's employees had lengthy and activities of such witnesses as the
cumulative training, of which the Institute training was but a very employees of [companies] who are not parties
to this litigation, but who directly participated
in the events which gave rise to it. The United and hutments would probably not be of utmost importance in
States District Court in New York, however, determining liability, and this consideration is not afforded great
has no power to subpoena any of these weight on this motion.
witnesses. It is unlikely that many would be
willing to travel to New York to testify; and the However, the instant case is not identical to the product design
cost, in any event, would be prohibitively great. defect case cited by plaintiffs, in which a district court judge
determined that "the present appearance of the defendants'
Fitzgerald v. Texaco, 521 F.2d 448, 451-52 (2d Cir. 1975), cert. facilities may or may not be relevant to production which
denied, 423 U.S. 1052, 96 S. Ct. 781, 46 L. Ed. 2d 641 (1976) occurred" in the period in which the allegedly violative
(footnote omitted). In contrast, the relatively few witnesses who manufacture occurred. Hodson v. A.H. Robins Co., Inc., 528 F.
reside in the United States are primarily employed by Union Supp. 809, 822 (E.D.Va.1981), aff'd, 715 F.2d 142 (4th Cir. 1983).
Carbide. As employees of a party they would probably be subject In the instant case, the site of the accident was sealed after the
to the subpoena power of Indian courts. Transportation costs leak, and the present condition of the plant might be relevant to a
would also be lower, since fewer people would have to make the finding of liability. A viewing may not be necessary, but
journey to testify. conceivably could be called for later in the litigation. An Indian
court is in a far better position than this Court to direct and
The presence of the Indian Government in this action is also of supervise such a viewing should one ever be required. This
critical importance on this motion. Plaintiffs assert that "all consideration, though minor, also weighs in favor of dismissal.
necessary officials and employees of the Central Government will
voluntarily comply with requests to attend trial." (Memo in Opp. In summary, then, the private interest factors weigh greatly in
at 70; Answer to No. 124 of Defendant's First Requests for favor of dismissal on grounds of forum non conveniens.Since the
Admission, Exhibit 55). This statement does not provide for "balance is strongly in favor of the defendant" and foreign
attendance by officials of Madhya Pradesh or the Bhopal plaintiffs' choice of a foreign forum is given less than maximum
municipality, whom Union Carbide indicates might be impleaded deference, the Court determines that dismissal is favored at this
as third-party defendants. As witnesses only, these officials would point in the inquiry. Gilbert 330 U.S. at 508, 67 S. Ct. at 843.
not be subject to this Court's subpoena power. As third-party
defendants, they might be immune from suit in the United States
by the terms of the Foreign Sovereign Immunities Act, 28 U.S.C.
§ 1602 et seq. State and city officials might also lack sufficient 3. Public Interest Concerns.
contacts with this district to allow this Court to exercise personal
jurisdiction over them. The Gilbert Court articulated certain factors which affected the
interests of non-parties to a litigation to be considered in the
While Union Carbide might be deprived of testimony of witnesses context of the doctrine of forum non conveniens. These public
or even potential third-parties if this action were to proceed in this interest concerns were held to be relevant to a court's
forum, no such problem would exist if litigation went forward in determination of whether to dismiss on these grounds. The
India. Supreme Court expressly identified a few factors:

The unavailability of compulsory process for Indian non-party


witnesses, of whom *860 there are many, such as would ensure
their presence at a trial in this country, the high cost of Administrative difficulties follow for courts
transporting the large number of Indian nationals to the United when litigation is piled up in congested centers
States, as well as the need to translate their testimony should they instead of being handled at its origin. Jury duty
appear, all support the argument favoring dismissal of this action is a burden that ought not to be imposed upon
on forum non conveniens grounds. The private interest concerns the people of a community which has no
regarding witnesses emphasize the logic of defendant's position. relation to the litigation. In cases which touch
Relatively fewer witnesses reside in the United States than in the affairs of many persons, there is reason for
India. Almost all of the witnesses located in this country are holding the trial in their view and reach rather
employees of defendant, and would be subject to compulsory than in remote parts of the country where they
process in India as a result. Transportation costs for the relative can learn of it by report only. There is a local
few would not compare to the alternate costs of transporting interest in having localized controversies
hundreds of Indian witnesses. Since English is widely spoken in decided at home. There is an appropriateness,
India, less translation would be required for foreign witnesses in too, in having the trial of a diversity case in a
India than in the converse situation. Should this case be tried in forum that is at home with the state law that
India, fewer obstacles to calling state and local officials as must govern the case, rather than *861 having a
witnesses or parties would face the defendant. The Court court in some other forum untangle problems in
determines that this private interest factor weighs in favor of conflict of laws, and in law foreign to itself.
dismissal.
Gilbert at 508-09, 67 S. Ct. at 843. The Court will consider these
C. Possibility of View. various factors in turn, as well as others discussed by the parties
and amicus curiae.
The third private interest factor articulated in Gilbert is the ease of
arranging for a view of the premises around which the litigation
centers. Plaintiffs assert that the notion that a jury view of the
plant and environs is necessary is "simply preposterous." (Memo A. Administrative Difficulties.
in Opp. at 71). Plaintiffs note that a viewing of the premises is
rarely conducted in products liability cases, since videotapes, As is evident from the discussion thus far, the mere size of the
pictures, diagrams, schematics and models are more instructive Bhopal case, with its multitude of witnesses and documents to be
than an actual view. (Memo in Opp. at 71). A viewing of the plant
transported and translated, obviously creates administrative Domingo at 816.
problems.
The defendant in this case, involved as it appears to have been in
There can be no doubt that the Bhopal litigation will take its toll the process design phase of the plant's construction, may have a
on any court which sits in judgment on it. This Court sits in one slightly less tenuous connection to this forum than a corporation
of the busiest districts in the country, and finds, as a matter within which is merely doing business here. Certain business conducted
its experience, that this is a "congested center" of litigation as in New York, or in corporate headquarters in Danbury,
described in Gilbert at 508. The burden which would be imposed Connecticut, may have been directly related to development or
should litigation continue here was aptly described by the Court operation of the UCIL facility in Bhopal. However, almost "all
of Appeals for the Second Circuit in Schertenlieb v. Traum, 589 the relevant events" leading to and following from the accident
F.2d 1156 (2d Cir.1978). Reviewing a district judge's ruling for occurred in India. Indian citizens are primarily involved in the
dismissal on the grounds of forum non conveniens, the Second case, both as witnesses and claimants. The substantial
Circuit observed that "were it not for the somewhat unusual fact administrative weight of this case should be centered on a court
that it is the forum resident who seeks dismissal, we would have with the most significant contacts with the event. Thus, a court in
to say very little regarding the exercise of Judge Metzner's Bhopal, rather than New York, should bear the load.
discretion in dismissing this case." Schertenlieb at 1164. In
affirming the ruling for dismissal, the Court of Appeals asked the *862 In addition to the burden on the court system, continuation
rhetorical question: of this litigation in this forum would tax the time and resources of
citizens directly. Trial in this case will no doubt be lengthy. An
assigned jury would be compelled to sit for many months of proof.
Because of the large number of Indian language-speaking
If litigation is in a clearly inconvenient forum, witnesses, the jurors would be required to endure continual
why should defendant and the court be translations which would double the length of trial. The burden on
burdened with its continuing there, if an the jurors themselves, and on their families, employers and
alternative forum now exists so that plaintiff communities would be considerable. The need for translation
will not be without a remedy? would be avoided if trial were to be held in Bhopal.

Schertenlieb at 1163. Clearly, the administrative costs of this litigation are astounding
and significant. Despite its deep concern for the victims of the
This Court has already determined that because of the location of tragedy, this Court is persuaded by a recent relevant decision of
the preponderance of the evidence in India, and the difficulty of the New York State Court of Appeals. In the opinion in Islamic
transporting documents and witnesses to this forum, this district is Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478 N.Y.S.2d 597,
clearly an inconvenient forum for the litigation. An alternative 467 N.E.2d 245 (1984), cert. denied, ___ U.S. ___, 105 S. Ct. 783,
forum is seen to exist in India. This Court feels that the answer to 83 L. Ed. 2d 778 (1985), with reference to a decision discussing
the Schertenlieb question is clear. actions brought in New York by the Iranian Government against
the Shah and his wife, the Court of Appeals stated that:
A district judge in this district, in Domingo v. States Marine
Lines, 340 F. Supp. 811 (S.D.N.Y.1972) evaluated the
administrative concerns of the Southern District of New York,
relevant to this Court today, a full fourteen years later. [T]he taxpayers of this State should not be
The Domingo court stated: compelled to assume the heavy financial burden
attributable to the cost of administering the
litigation contemplated when their interest in
the suit and the connection of its subject
It is scarcely necessary to dwell on the fact that matter ... is so ephemeral.
this Court is the most heavily burdened Federal
District Court in the country. The Civil Islamic Republic at 483, 478 N.Y.S.2d 597, 467 N.E.2d 245
Calendar grows more congested all the time. (citations omitted). Administrative concerns weigh against
The priority now properly given to the retention of this case.
disposition of criminal cases tends to increase
this congestion.

B. The Interests of India and the United States.


******
Plaintiffs, and especially amicus curiae emphasize this point of
argument in opposition to the motion to dismiss. Concerned with
I see no reason why this Court, with its heavy the asserted possibility of developing a "double-standard" of
burdens and responsibilities, should be liability for multinational corporations, plaintiffs urge that
burdened with cases like these which, from American courts should administer justice to the victims of the
every point of view, should be tried in the Bhopal disaster as they would to potential American victims of
courts of the nation where all the relevant industrial accidents. The public interest is served, plaintiffs
events occurred and whose citizens are and amicus argue, when United States corporations assume
primarily involved. Certainly, this district and responsibility for accidents occurring on foreign soil. "To
the Metropolitan area in which it is situated abandon that responsibility," amicusasserts, "would both injure
have no conceivable relation to this litigation our standing in the world community and betray the spirit of
except for the fact that the defendant happens to fairness inherent in the American character." (Amicus Brief at 4).
be doing business here. The specific American interests allegedly to be served by this
Court's retention of the case include the opportunity of creating
precedent which will "bind all American multinationals Aff. at 44). The Ministry required progress reports throughout the
henceforward," (Amicus Brief at 20); promotion of "international course of the construction project. These reports were required by
cooperation," (Amicus Brief at 22-23); avoidance of an asserted the Secretariat for Industrial Approvals, the Director General of
"double standard" of liability, and the prevention of "economic Technical Development and the Director of Industries of Madhya
blackmail of hazardous industries which would extract Pradesh. (Dutta Aff. at 45). Moreover, UCIL was ultimately
concessions on health and environmental standards as the price of required to obtain numerous licenses during development,
continuing operations in the United States." (Amicus Brief at 20). construction and operation of the facility. (Dutta Aff. at 46). The
An additional American public interest ostensibly to be served by list of licenses obtained fills five pages.[21]
retention of the litigation in this forum is advanced by plaintiffs
themselves. They assert that the deterrent effect of this case can The Indian Government regulated the Bhopal plant indirectly
be distinguished from the situation in Piper,where the Court under a series of environmental laws, enforced by numerous
rejected the argument that "American citizens have an interest in agencies, much as the Occupational Safety and Health
ensuring that American manufacturers are deterred from Administration, the Environmental Protection Agency and state
producing defective products, and that additional deterrence and local agencies regulate the chemical industry in the United
might be obtained if Piper and [its co-defendant] were tried in the States. (Dutta Aff. at 53-56). Emissions from the facility were
United States, where they could be sued on the basis of both monitored by a state water pollution board, for example. (Dutta
negligence and strict liability." Piper 454 U.S. at 260, 102 S. Ct. Aff. at 64). In addition, state officials periodically inspected the
at 268. The Court stated that: fully-constructed plant.[22] (Dutta Aff. at 56). A detailed inquiry
into the plant's operations was conducted by the Indian
Government in the aftermath of the December, 1981 fatality at the
MIC unit and the February, 1982 incident involving a pump seal.
[T]he incremental deterrence that would be (Dutta Aff. at 58-62). Numerous federal, state and local
gained if this trial were held in an American commissions, obviously, investigated the most tragic incident of
court is likely to be insignificant. The American all, the MIC leak of December, 1984.
interest in this accident is simply not sufficient
to justify the enormous commitment of judicial
The recital above demonstrates the immense interest of various
time and resources that would inevitably be
Indian governmental agencies in the creation,
required if the case were to be tried here.
operation, *864 licensing and regulation, and investigation of the
plant. Thus, regardless of the extent of Union Carbide's own
Piper at 260-61, 102 S. Ct. at 268. According to plaintiffs, the involvement in the UCIL plant in Bhopal, or even of its asserted
potential for greater deterrence in this case is "self-evident." "control" over the plant, the facility was within the sphere of
regulation of Indian laws and agencies, at all levels. The
*863 The opposing interest of India is argued to be ill-served by comments of the Court of Appeals for the Sixth Circuit with
sending this litigation to India. Pointing to the fact that the Union respect to its decision to dismiss a products liability action
of India chose this forum, plaintiffs state that there can be "no on forum non conveniens grounds seem particularly apposite.
question as to the public interest of India." (Memo in Opp. at 91). In In re Richardson-Merrell, Inc., 545 F. Supp. 1130 (S.D.Ohio
Union Carbide's statements regarding the interests of India in this 1982), modified sub. nom. Dowling v. Richardson-Merrell
litigation are summarily dismissed by the plaintiffs, who state that Inc., 727 F.2d 608 (6th Cir.1984), the court reviewed a dismissal
"Union Carbide, whose actions caused the suffering of an entire involving an action brought by a number of plaintiffs, all of
city, has no standing to assert this belated concern for the welfare whom were citizens of Great Britain.[23] Defendant in the action
of the Indian populace." (Memo in Opp. at 91). was a drug company which had developed and tested a drug in the
United States which was manufactured and marketed in England.
Union Carbide, not surprisingly, argues that the public interest of The suit was brought against the American parent, not the British
the United States in this litigation is very slight, and that India's subsidiary, for injuries allegedly resulting from ingestion of the
interest is great. In the main, the Court agrees with the defendant. offending drug in England and Scotland. The district court, in
dismissing the case, stated that:
As noted, Robert C. Brown states in his affidavit on behalf of
Union Carbide that the Indian Government preserved the right to
approve foreign collaboration and import of equipment to be used
in connection with the plant. See supra at 856. In addition, Mr. This action involves the safety of drugs
Brown quoted excerpts from the 1972 Letter of Intent entered into manufactured in the United Kingdom and sold
by the Union of India and UCIL, one term of which required that to its citizens pursuant to licenses issued by that
"the purchase of only such design and consultancy services from government. The interest of the United
abroad as are not available within the country" would be allowed. Kingdom is overwhelmingly apparent. New
(Brown Aff. at 6). Ranjit K. Dutta states that the Indian York, and Ohio [the United States forums] for
Government, in a process of "Indianization," restricted the that matter, have a minimal interest in the safety
amount of foreign materials and foreign consultants' time which of products which are manufactured, regulated
could be contributed to the project, and mandated the use of and sold abroad by foreign entities, even though
Indian materials and experts whenever possible. (Dutta Aff. at 35). development or testing occurred in this country.
In an alleged ongoing attempt to minimize foreign exchange
losses through imports, the Union of India insisted on approving In re Richardson-Merrell, Inc., 545 F. Supp. at 1135 (footnote
equipment to be purchased abroad, through the mechanism of a omitted). The Sixth Circuit confirmed this view of the public
"capital goods license." (Dutta Aff. at 48-50). interests, stating:

The Indian Government, through its Ministry of Petroleum and


Chemicals, allegedly required information from UCIL regarding
The interest of the United Kingdom in this
all aspects of the Bhopal facility during construction in 1972 and
litigation is great. The drug was manufactured
1973, including "information on toxicity" of chemicals. (Dutta
under a British license by British companies
and was marketed and prescribed in the United The impropriety of [applying American
Kingdom. The alleged injuries took place in standards of product safety and care] would be
England and Scotland and the plaintiffs are even more clearly seen if the foreign country
citizens and residents of those countries. When involved was, for example, India, a country
a regulated industry, such as pharmaceuticals in with a vastly different standard of living, wealth,
this case and passenger aircraft operations resources, level of health care and services,
in Piper Aircraft, is involved, the country where values, morals and beliefs than our own. Most
the injury occurs has a particularly strong significantly, our two societies must deal with
interest in product liability litigation.... Though entirely different and highly complex problems
no single factor should be determinative in of population growth and control. Faced with
ruling on a forum non conveniens motion, the different needs, problems and resources in our
nature of the product and its status as regulated example India may, in balancing the pros and
or not must be considered. cons ... give different weight to various factors
than would our society.... Should we impose our
Dowling, 727 F.2d at 616. standards upon them in spite of such differences?
We think not.
The Indian government, which regulated the Bhopal facility, has
an extensive and deep interest in ensuring that its standards for Harrison at 4-5. This Court, too, thinks that it should avoid
safety are complied with. As regulators, the Indian government imposing characteristically American values on Indian concerns.
and individual citizens even have an interest in knowing whether
extant regulations are adequate. This Court, sitting in a foreign The Indian interest in creating standards of care, enforcing them
country, has considered the extent of regulation by Indian or even extending them, and of protecting its citizens from ill-use
agencies of the Bhopal plant. It finds that this is not the is significantly stronger than the local interest in deterring
appropriate tribunal to determine whether the Indian regulations multinationals from exporting allegedly dangerous technology.
were breached, or whether the laws themselves were sufficient to The supposed "blackmail" effect of dismissal by which plaintiffs
protect Indian citizens from harm. It would be sadly paternalistic, are troubled is not a significant interest of the American
if not misguided, of this Court to attempt to evaluate the population, either. Surely, there will be no relaxing of regulatory
regulations and standards imposed in a foreign country. As standards by the responsible legislators of the United States as a
another district court stated in the context of a drug product response to lower standards abroad.[24] Other concerns than bald
liability action brought by foreign plaintiffs in this country, fear of potential liability, such as convenience or tax benefits,
bear on decisions regarding where to locate a plant. Moreover, the
purported public interest of seizing this chance to create new law
is no real interest at all. This Court would exceed its authority
*865 Each government must weigh the merits were it to rule otherwise when restraint was in order.
of permitting the drug's use.... Each makes its
own determination as to the standards of degree The Court concludes that the public interest of India in this
of safety and duty of care.... This balancing of litigation far outweighs the public interest of the United States.
the overall benefits to be derived from a This litigation offers a developing nation the opportunity to
product's use with the risk of harm associated vindicate the suffering of its own people within the framework
with that use is peculiarly suited to a forum of of *866 a legitimate legal system. This interest is of paramount
the country in which the product is to be used.... importance.[25]
The United States should not impose its own
view of the safety, warning, and duty of care
required of drugs sold in the United States upon
a foreign country when those same drugs are
sold in that country. C. The Applicable Law.

Harrison v. Wyeth Laboratories, 510 F. Supp. 1, 4 Gilbert and Piper explicitly acknowledge that the need of an
(E.D.Pa.1980), aff'd mem., 676 F.2d 685 (3d Cir.1982). India no American court to apply foreign law is an appropriate concern on
doubt evaluated its need for a pesticide plant against the risks a forum non conveniens motion, and can in fact point toward
inherent in such development. Its conclusions regarding dismissal. Gilbert, 330 U.S. at 509, 67 S. Ct. at 843; Piper,454
"[q]uestions as to the safety of [products] marketed" or U.S. at 260, 102 S. Ct. at 268. Especially when, as here, all other
manufactured in India were "properly the concern of that factors favor dismissal, the need to apply foreign law is a
country." Harrison at 4 (emphasis omitted). This is particularly significant consideration on this type of motion. Piper at 260, n.
true where, as here, the interests of the regulators were possibly 29, 102 S. Ct. at 268, n. 29. A federal court is bound to apply the
drastically different from concerns of American regulators. The choice of law rules of the state in which an action was originally
Court is well aware of the moral danger of creating the brought; even upon transfer to a different district, "the transferee
"double-standard" feared by plaintiffs and amicus district court must be obligated to apply the state law that would
curiae. However, when an industry is as regulated as the chemical have been applied if there had been no change of venue." Van
industry is in India, the failure to acknowledge inherent Dusen v. Barrack, 376 U.S. 612, 639, 84 S. Ct. 805, 821, 11 L. Ed.
differences in the aims and concerns of Indian, as compared to 2d 945 (1964). Thus, this Court, sitting over a multidistrict
American citizens would be naive, and unfair to defendant. The litigation, must apply the various choice of law rules of the states
district court in Harrison considered the hypothetical instance in in which the actions now consolidated before it were
which a products liability action arising out of an Indian accident brought.[26] Rather than undertake the task of evaluating the
would be brought in the United States. The court speculated as choice of law rules of each state separately, the Court will treat
follows: the choice of law doctrine in toto. The "governmental interest"
analysis, employed by many jurisdictions, requires a court to look
to the question of which state has the most compelling interest in
the outcome of the case. India's interest in the outcome of the
litigation exceeds America's, see supra at 44-58. The lex loci The Court thus finds itself faced with a paradox. In the Court's
delicti analysis used in other jurisdictions indicates that the law of view, to retain the litigation in this forum, as plaintiffs request,
the state where the tort occurred should be applied. The place in would be yet another example of imperialism, another situation in
which the tort occurred was, to a very great extent, India. Other which an established sovereign inflicted its rules, its standards
states apply the "most significant relationship" test, or "weight of and values on a developing nation. This Court declines to play
contacts" test, which evaluate in which state most of the events such a role. The Union of India is a world power in 1986, and its
constituting the tort occurred. The contacts with India with courts have the proven capacity to mete out fair and equal justice.
respect to all phases of plant construction, operation, malfunction To deprive the Indian judiciary of this opportunity to stand tall
and subsequent injuries are greater in number than those with the before the world and to pass judgment on behalf of its own people
United States. Thus, under any one of these three doctrines, it is would be to revive a history of subservience and subjugation from
likely that Indian law will emerge as the operative law. An Indian which India has emerged. India and its people can and must
court, therefore, would be better able to apply the controlling law vindicate their claims before the independent and legitimate
than would this United States Court, or a jury working with it. judiciary created there since the Independence of 1947.
This public interest factor also weighs in favor of dismissal on the
grounds of forum non conveniens. This Court defers to the adequacy and ability of the courts of
India. Their interest in the sad events of December 2-3, 1984 at
the UCIL plant in the City of Bhopal, State of Madhya Pradesh,
Union of India, is not subject to question or challenge. The
CONCLUSION availability of the probative, relevant, material and necessary
evidence to Indian courts is obvious and has been demonstrated in
It is difficult to imagine how a greater tragedy could occur to a this opinion.
peacetime population than the deadly gas leak in Bhopal on the
night of December 2-3, 1984. The survivors of the dead victims, Therefore, the consolidated case is dismissed on the grounds
the injured and others who suffered, or may in the future suffer of forum non conveniens under the following conditions:
due to the disaster, are entitled to compensation. This Court is
firmly convinced that the Indian legal system is in a far better
position than the American courts to determine the cause of the
tragic event and thereby fix liability. Further, the Indian courts 1. Union Carbide shall consent to submit to the
have greater access to all the information needed to arrive at the jurisdiction of the courts of India, and shall
amount of the compensation to be awarded the victims. continue to waive defenses based upon the
statute of limitations;
The 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 2. Union Carbide shall agree to satisfy any
consolidated case. The additional presence in India of all but the judgment rendered against it by an Indian court,
less than handful of claimants underscores the convenience of and if applicable, upheld by an appellate court
holding trial in India. All of the private interest factors described in that country, where such judgment and
in Piper and Gilbert weigh heavily toward *867 dismissal of this affirmance comport with the minimal
case on the grounds of forum non conveniens. requirements of due process;

The public interest factors set forth in Piper and Gilbert also favor
dismissal. The administrative burden of this immense litigation 3. Union Carbide shall be subject to discovery
would unfairly tax this or any American tribunal. The cost to under the model of the United States Federal
American taxpayers of supporting the litigation in the United Rules of Civil Procedure after appropriate
States would be excessive. When another, adequate and more demand by plaintiffs.
convenient forum so clearly exists, there is no reason to press the
United States judiciary to the limits of its capacity. No American SO ORDERED.
interest in the outcome of this litigation outweighs the interest of
India in applying Indian law and Indian values to the task of
resolving this case.

The Bhopal plant was regulated by Indian agencies. The Union of


India has a very strong interest in the aftermath of the accident
which affected its citizens on its own soil. Perhaps Indian
regulations were ignored or contravened. India may wish to
determine whether the regulations imposed on the chemical
industry within its boundaries were sufficiently stringent. The
Indian interests far outweigh the interests of citizens of the United
States in the litigation.

Plaintiffs, including the Union of India, have argued that the


courts of India are not up to the task of conducting the Bhopal
litigation. They assert that the Indian judiciary has yet to reach
full maturity due to the restraints placed upon it by British
colonial rulers who shaped the Indian legal system to meet their
own ends. Plaintiffs allege that the Indian justice system has not
yet cast off the burden of colonialism to meet the emerging needs
of a democratic people.