There are not many countries in the world with this legal possibility

Legal legacy of Bhopal India can sue multinational companies on its territory
news Legal Saturday, January 09, 2016 - 15:05

Around this time 31 years ago lawyers Michael Ciresi and Roberta Walburn* (now with the law firm Ciresi Conlin LLP) were packing their bags to make the journey from Minnesota in the mid-west to India’s Bhopal. Industrial liability was their forte and the duo soon found that word “Bhopal” entered their vocabulary. Their fight against Union Carbide helped to secure India $470 million in compensation, but it also resulted in jurisprudence. The Bhopal gas tragedy is not their only victory for social justice. There are many others, but none perhaps as important as their battle with Big Tobacco in America.

Ciresi and Walburn blasted their way through the impenetrable vaults of the tobacco industry, securing a $7.2 billion settlement for the State of Minnesota and Blue Cross and Blue Shield of Minnesota. More importantly, their efforts resulted in placing millions of documents in the public domain – documents that showed trails of lies, more lies and deaths caused by the tobacco industry.  In appropriate cases, India can bring multinational companies to justice in New Delhi, Walburn and Ciresi told The News Minute’s Chitra Subramaniam in an interview where they speak about their successes and the importance of law as a public service.

1.You represented the Government of India in the Bhopal gas tragedy introducing for the first time, the concept of multinational enterprise liability. What are its salient points?

MC: The reason that we came up with that theory of liability was that Union Carbide (International – UCI)) was the parent company of Union Carbide (India - UCA) and super-imposed a structure of directors and inter-locking responsibilities. Here was the issue – UCI’s defence was that the plant was Indian and its headquarters in the US did not control what was happening in India. In other words they were saying that UCI was not responsible for the actions of its subsidiary.

But Union Carbide India was involved in an ultra-hazardous activity. They were producing methyl isocyanate (MIC), a gas which is one of the most dangerous substances known to man. It was our view that UCI could not absolve itself of liability simply because it was a parent corporation headquartered in the US.  This was especially the case because only the parent corporation—the multinational—had the structure, organization, technology, finances and resources to properly make and implement decisions to avoid such a catastrophic industrial disaster.  We fashioned the theory of multinational enterprise liability based on fundamental legal principles.  For example, we used a well-known case involving dynamite which basically says If I am using dynamite—an ultra-hazardous activity—on my property, it is my responsibility to prevent any damage to the neighbours and I am absolutely liable for any mishaps. It is the Rylands v Fletcher (read here https://en.wikipedia.org/wiki/Rylands_v_Fletcher) case. Based on this and other legal principles, we drafted a complaint where we said a multinational company was has a primary, absolute and non-delegable duty for an ultra-hazardous or inherently dangerous activity.  This was the first time to our knowledge that any such complaint had been filed, in the US or in India, and subsequently its principles were adopted by the Indian Supreme Court and by the United Nations.

2 .How were you contacted from India?

MC: An Indian lady in Minneapolis who knew people in Bhopal got in touch with us. But, when we got to Bhopal, we realised the magnitude of the disaster. We also saw many US law firms looking for clients without the appropriate expertise or resources.  At that point we were not thinking of representing the Indian government. It was beyond that. We felt in all good conscience we should write a white paper to the government of India. We did a due diligence and sent it to the Indian embassy in Washington with a note that whatever they did, the things we had mentioned ought to be considered. In the immediate aftermath, there were 3000 to 4000 deaths but the toll was much higher. We left our note with India’s first secretary in Washington explaining our ideas for  approaching the problem.

Then we got a call from the embassy saying the Attorney General of India would like to interview us. This was on in February or early March 1985. We were the only law firm in the mid-west to be called for the interview. We had a lot of experience in disasters. We were interviewed and then were the ones to be hired. It was at this point that Roberta and I drafted the complaint and came up with the theory of multinational liability. One of the issues was that was the Union Carbide Corporation should be held accountable because the safety release system at the plant, which was designed in the United States, had failed, causing the explosion. It is an absolute duty for corporations to be fully aware of the risks and liabilities of their actions in a case like this. So yes, it was a novel theory of liability that followed the Bhopal disaster. We would like to salute the efforts of two exemplary officers who worked with us in the Bhopal case. One is Shayamal Ghosh and the other is Swashpawan Singh – their dedication and integrity to get to the bottom of this was exemplary.

3. Were you disappointed when Warren Anderson was not tried in India?

MC: For us that whole issue was secondary to what we were pursuing. There were enormous volumes of the ultra-hazardous MCI produced and stored at Bhopal. It is likely that Anderson himself did not know many details, but that did not absolve the company of responsibility.  That was the premise on which we built our case.

4. US Surgeon General Everett Koop said your victory against Big Tobacco resulting in the $7.2 billion settlement was one of the biggest contributions to public health in the latter half of the 20th century. Your thoughts now as you look back?

RW. We agree with what Koop said! The primary reason was that millions of the tobacco company’s secret documents became available to people around the world. People are looking at them all, the time – doctors, epidemiologists, public health officials, scientists  -- and that is the lasting impact of that litigation.

5. Do you consciously take on causes that contribute to a larger public good?

RW: Seeking meaning in what we are doing is very important for me. The tobacco litigation had been going on for decades before we sued, but the industry had never lost a case despite selling such a hazardous product.  Our victory was a profound one for me.  I believe we should all try and make the world a better place not just for ourselves but for the society at large.

MC: We are here for a finite period of time and within that we have to decide that I am devoting myself to this or that. Serving common good is something we all should try and do. I think it is our responsibility to make the world a better place. The school that I went to taught me this. Roberta and I have known each other for more than  30 years and we have always looked at cases where there is a greater goal. We have sued to create a level playing field. This means discovering facts and placing them in the public domain.

6. What were the toughest moments during the tobacco trials?

MC: I think it was the stonewalling by the industry when we were in the pre-trial process. Roberta had the heavy burden of document production and there were days when the delays seemed interminable. But in our gut, we knew we were right.  We had to battle for the documents, especially when the tobacco industry tried to hide behind attorney-client privilege issues.  But at the beginning of the case, we told them we were coming after those documents like bees to honey.  

5. And the fun ones?

RW: We got to have some fun. We had a small team of people who had a blast getting the documents, even though it could be like pulling teeth out! Then, during the trial, the witnesses could be confronted with those documents.

6. Countries like India are major markets for the tobacco industry. It is a legal product, so free trade agreements kick in. How can tobacco control activists deal with this inherent dichotomy between free trade and public health?

MC: Tobacco is a legal product and we weren’t trying to get tobacco banned. For us it was the conduct of the industry, including the sale of a product where there were misrepresentations about the health impact. Our role was to say that we can use law as a force for common good. I am not an expert on free trade but I would think that there are limits to free trade.

7. Following the tobacco battles, there are growing concerns about sugar and sugar lobbies around the world. Is sugar the new tobacco?

MC: No. In tobacco there is no safe threshold. It is not like eating a hamburger or sugar. Sugar is good commodity and it can be used in correct amounts.

9. Is it ethical for journalists to work with stolen documents for greater public good?

MC: Lawyer, as a lawyer I would never work with stolen documents.

10. Following the example from Wikileak’s Julian Assange and later Edward Snowden, whistle blowers are able to place documents in the public domain bypassing newsrooms and governments. What are your views on this?

MC: Let me use an example and the Pentagon papers. They were leaked and published in the New York Times. The Times made a determination that pubic welfare would not to be harmed. Somebody has to be responsible for making a determination about leaking the documents as well as publishing them. The Times carried on its own investigation into the papers – that is where the public interest comes in.

Read about the Master Settlement and Tobacco Legacy documents here

*Walburn and Subramaniam have worked together at the World Health Organisation’s (WHO) tobacco control programme

 

 

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