INDIA, CARBIDE MUST EASE THE PAIN

It is almost two years since deadly methyl isocynate gas escaped from the Union Carbide plant in Bhopal, India, killing over 2,000 and injuring many thousands more. From the moment U.S. lawyers landed in India to sign up clients, it was clear that the most likely course of action was a complex legal battle, involving lawyers on two continents, in which there would be no winners. To date, this has been the sad result.

Since Bhopal there have been other international environmental accidents costing many lives with high economic and health costs. The world was stunned by the release of radioactivity that spread across Europe and the world from the Chernobyl nuclear power plant in the Soviet Union, and more recently was shocked by the results of the pesticides that spilled into the Rhine river in Basel, Switzerland, at the Sandoz chemical plant, killing fish and fouling drinking water supplies in Germany, France and the Netherlands.But Bhopal was still the biggest disaster of the three. If the government of India and Union Carbide continue to lock their legal horns, any meaningful assistance is many years away. There have been some attempts at direct negotiations, but the courts have been the principal focus. Who has the right to represent the people of Bhopal? Do Indian or U.S. courts have primary jurisdiction over the cases? Those questions have been answered by decisions and legislation over the past year: the government and courts of India get the first crack at the case, and it could take years and possibly decades before a final judgment will be rendered. On Nov. 22, the government of India filed a $3 billion damage suit against Union Carbide in the district court in Bhopal.

Complex toxic tort cases present many-sided problems that are not easily resolved with a two-sided adversary system. How can courts deal with latent effects of the chemical that won't be known for many years? or the political ramifications? or the role of the subsidiaries, contractors and employees? Can a single court effectively deal with cases that number in the hundreds of thousands?

Fortunately, there are other ways, if the parties seek them out, and it is in both India's and Carbide's interest to continue to do so, even though they haven't worked to date. Precedents do exist. In the U.S. complex liability and insurance coverage in thousands of asbestos cases were negotiated outside of the framework of the court in an innovative approach led by Harry Wellington, the former dean of the Yale Law School. The Swiss government has announced that they will pay compensation for the damage caused by the spill in the Rhine, but the mechanism has not yet been worked out.

The task facing Carbide and India is, in many respects, more difficult. Battle lines havebeen drawn. India argues that Carbide's offer of compensation is far too low. Carbide al leges that perhaps the company wasn't responsible after all, and that sabotage of the plant was involved. India seeks to prevent Carbide from restructuring and selling off its assets so as to protect their claims. Carbide asserts that they were prevented by the government of India

from operating the plant themselves, but instead were required to sell the

plans. All these arguments, regardless of merit, will only polarize the two parties and keep their lawyers busy while the victims get nothing.

Why don't the two sides step back from their legal claims, while reserving them so that nothing is lost, and agree to appoint neutral experts who can use some of the techniques of flexible dispute settlement and structured principled negotiations. The experts could construct a more efficient forum to collect and then pay claims over an agreed time period, consistent with others that have been paid in India. They can agree to provide assistance to the victims in filling out claims forms where required. They can help structure a way to assure that there is money left for illnesses that do not appear for some years. Perhaps both sides can work together to construct a development plan for Bhopal that will provide for housing, education and needed medical care.

Importantly, this forum could be the model for a much needed international environmental dispute settlement center which could be used by both governments and private groups, including corporations, in resolving claims resulting from Cher nobyl, the Rhine spill and others that sadly, but inevitably will follow.

This form of cooperation is in the interest of everyone. In the Bhopal case, Prime Minister Ghandi can demonstrate that he is indeed responsive to the victims of Bhopal, not through posturing in court, but in providing tangible relief. Union Car bide can show that they are indeed responsible members of the international community, and that they recognize that a principled cooperative approach makes the most sense for all multinational corporations doing business in the developing world.

Both India and Union Carbide can do this while reserving their legal positions. According to reports issued prior to the filling of the recent suit in India, the Indian government said that their minimum offer was $600 million and they rejected Carbide's offer of $350 million as far too low. This is admittedly a substantial difference. However, a long drawn out legal battle, with an uncertain result and the continuing international outcry over the lack of any tangible progress should provide incentives to reach an agreement that have been missing.

Bhopal. Chernobyl. The Rhine pesticide spill. Three testaments to the ways in which technology has outpaced society's will or capacity to control. Bhopal was the first of these, and it would be a further tragedy if it turns out to be the last of the three to deal fairly and effectively with the many thousands of people who were so brutally affected the disaster.

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