Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter N.4: Nuclear liability

Wolfgang Wurmnest

I. Justifications for seeking uniformity

More and more countries in Europe and around the world use nuclear energy or are engaged in building new installations as means to satisfy their growing energy needs and to fulfil their commitments to reduce carbon dioxide emissions. The proliferation of nuclear technology around the globe and its intensified use has increased the risk of accidents at a nuclear installation or during the transport of nuclear substances. Major accidents may cause severe damage as the 1986 Chernobyl and the 2011 Fukushima incidents have shown: there is not only direct and immediate damage to property. Even years after the accident victims may suffer damage to health due to the long-term effects of ionizing radiation on the human body. In addition people may need to be relocated to new homes, measures to reinstate an impaired environment have to be taken and farmers and fishermen must be compensated for economic loss resulting from bans on the sale of agricultural products or fish. Nuclear damage will often not be confined to the country in which the accident took place as wind or water spread releases radiation to neighbouring or even more remote countries. The 1986 Chernobyl incident for example caused damage not only in the →Ukraine where the power plant was located, but also in →Austria, →Belarus, →Finland, →Germany, →Poland, →Sweden, Russia (→Russian Federation) and elsewhere. Therefore even countries without nuclear installations on their territory must consider issues of jurisdiction and applicable tort law to ensure an adequate protection of their citizens.

Since the beginning of the commercial use of nuclear technology in the mid-1950s many states were aware of the nuclear risk and the trans-boundary nature of damage caused by major accidents. In addition the view was widespread that the particularities of the nuclear risk calls for an international liability regime which not only unifies the general standards of liability but also addresses the issues of jurisdiction for actions for →damages as well as the recognition and enforcement of judgments abroad (Carlton Stoiber and others, Handbook on Nuclear Law (IAEA 2003) 107).

The drafting of a uniform liability regime involves, however, crucial policy choices: as the damages resulting from a major accident can be of a very high magnitude, the operator of a nuclear installation will not have sufficient funds to fully indemnify all victims. This raises the question as to the amount of his liability. Moreover, an international insurance system has to be organized to increase the amount of available funds for compensation. Finally, the salient question has to be answered if and under which circumstances the taxpayers, either in the p. 1306state in which the incident took place and/or in the state(s) where the damage occurred, will provide additional funds for the compensation of victims. Against this background the design of a uniform liability law thus depends on various factors. One important factor is the willingness of a society to support the growth of the nuclear industry. The higher the support of the state for its nuclear industry, the lower will be the burden of liability for operators of nuclear installations. This is a form of subsidy to the nuclear industry. Another important factor is the general economic situation of a state. For developed states it is for example less burdensome to promise the supply of additional public funds for the compensation of losses than for developing states. Therefore it does not come as a surprise that over the course of the years a variety of international nuclear liability conventions have been concluded.

II. Avenues for promoting uniformity

1. International Atomic Energy Agency

The main body for the unification of nuclear liability law is the International Atomic Energy Agency (IAEA) in Vienna, which was established in 1957. Under the auspices of this organization various international conventions have been negotiated, namely the Vienna Nuclear Liability Convention (Vienna Convention on Civil Liability for Nuclear Damage of 21 May 1963, 1063 UNTS 265) revised by a protocol in 1997 (Protocol to amend the Vienna Convention on Civil Liability for Nuclear Damage of 12 September 1997, 2241 UNTS 270) and the Nuclear Supplementary Compensation Convention (Convention on Supplementary Compensation for Nuclear Damage of 12 September 1997, INFCIRC/567, henceforth SC Convention).

The Vienna Nuclear Liability Convention establishes the liability of the operator of a nuclear installation. The 1997 Protocol broadens the scope of liability, increases the amount of liability of the operator of a nuclear installation and shall provide for enhanced means to secure adequate and equitable compensation (cf preamble of the 1997 Protocol).

The SC Convention supplements the liability system laid down in the Vienna Nuclear Liability Convention with the aim of increasing the amount of compensation for nuclear damage. It establishes a second tier of compensation to complement the operator’s liability so that victims may be compensated out of additional funds provided by the contracting states. Moreover, the SC Convention is designed to link (and in part even to supersede) different (national or regional) liability regimes.

The Vienna Nuclear Liability Convention and the SC Convention are open to all states in the world and could thus serve as a basis for a unification of the law at the global level. Compared to nuclear agreements for specific nuclear matters such as the Convention on the Early Notification of a Nuclear Accident of 26 September 1986 (1439 UNTS 276) and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency of 26 September 1986 (1457 UNTS 133), which have both been ratified by over 100 states, the unification effect reached so far by the liability conventions is rather limited (Norbert Pelzer, ‘On Global Treaty Relations: Hurdles on the Way towards a Universal Civil Nuclear Liability Regime’ (2008) 6 EurUP 268, 270 f). The Vienna Nuclear Liability Convention has 40 contracting parties, including →Argentina, Belarus, →Brazil, →Egypt, Russia, →Saudi Arabia and the Ukraine. Of the EU Member States, ten have joined this convention (→Bulgaria, →Croatia, →Czech Republic, →Estonia, →Hungary, →Latvia, →Lithuania, Poland, →Romania and →Slovakia). The 1997 Protocol has so far been ratified by only 13 states, amongst them three EU states (Latvia, Poland and Romania). The SC Convention has thus far been ratified by nine states in the world (Argentina →Ghana, →India,→Japan, →Montenegro,, Morocco, Romania, the United Arab Emirates and the →USA) and is in force since 15 April 2015 (the latest status of both conventions and the 1997 Protocol to the Vienna Nuclear Liability Convention is available at <www.iaea.org>).

It is important to note that not all nuclear power states in the world are bound by international conventions. →Canada, →China, →India, →Japan, both Koreas, Pakistan and →South Africa for example have so far not joined any of the international liability regimes. Some states have, however, aligned their national laws in part with selected liability standards laid down in the Vienna Nuclear Liability Convention. Also the USA did not adhere to an international treaty system for a long time as it was the first state that had codified a comprehensive nuclear liability regime, the Price-Anderson Act of 1957 (Price-Anderson Nuclear Industries Indemnity Act, 42 U.S.C. ch p. 130723; revised in 2005). This changed in 2008, when the USA joined the SC Convention, which came into force on 15 April 2015

2. Organisation for Economic Co-operation and Development

The second international organization active in the field of uniform liability rules is the Organisation for Economic Co-operation and Development (OECD) in Paris. The debates on the elaboration of a nuclear liability convention started at the end of the 1950s under the auspices of its forerunner, the Organisation for European Economic Co-operation (OEEC). As the OEEC was established as a body for the administration of the Marshall Plan for the reconstruction of Europe after the Second World War (which was opposed by the Soviet Union and the states within its zone of influence), from the outset the focus of the negotiations was on the creation of a regional system primarily for Western European states. Within the framework of the OEEC/OECD the Paris Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960 (956 UNTS 263) was adopted which was later amended by the Additional Protocol of 1964 (Additional Protocol of 28 January 1964 to the Convention of Third Party Liability in the Field of Nuclear Energy, 956 UNTS 335), the Protocol of 1982 (Protocol of 16 November 1982 to amend the Convention on third party liability in the field of nuclear energy, as amended by the Additional Protocol of 28 January 1964, 1519 UNTS 329) and the Protocol of 2004 (Protocol of 12 February 2004 to amend the Convention on Third Party Liability in the Field of Nuclear Energy, as amended by the Additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, <www.oecd-nea.org/law/paris_convention.pdf>) (henceforth Paris Nuclear Liability Convention). This liability regime was strengthened by the Brussels Convention Supplementary to the Paris Convention (Convention of 31 January 1963 Supplementary to the Convention on Third Party Liability in the Field of Nuclear Energy, 1041 UNTS 358), which was revised by Protocols of 1964 (Additional Protocol of 28 January 1964 to Amend the Convention of 31 January 1963 Supplementary to the Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, 956 UNTS 335), 1982 (Protocol of 16 November 1982 to Amend the Convention of 31 January 1963 Supplementary to the Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960 as amended by the Additional Protocol of 28 January 1964, 1650 UNTS 446) and 2004 (Protocol of 12 February 2004 to Amend the Convention of 31 January 1963 Supplementary to the Paris Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as amended by the Additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, <www.oecd-nea.org/law/brussels_supplementary_convention.pdf>). These conventions are open to OECD states only. Other states may join if all contracting parties agree to an accession.

The unifying effect of these regional conventions is also of a limited nature. The 1960 Paris Nuclear Liability Convention and its revisions through the protocols of 1964 and 1982 have been ratified by 16 states, including all Western European countries except Austria, →Luxembourg, →Ireland, Cyprus and →Malta. These states consider their national laws to provide a better compensation scheme for victims of nuclear accidents than the international liability regime. The 2004 Protocol to amend the Paris Nuclear Liability Convention is not yet in force as the necessary amount of ratifications has not been reached (the latest status of the amended Paris Convention and the 2004 Protocol is available at <www.oecd-nea.org>). It was negotiated in the aftermath of the 1986 Chernobyl disaster, an incident that demonstrated clearly that the Paris Nuclear Liability Convention’s liability system does not provide sufficient and adequate compensation for nuclear damage suffered in major nuclear incidents. The 2004 Protocol therefore substantially increases the liability caps and enlarges the Convention’s scope of application to nuclear installations for the disposal of waste and installations that are in the course of being decommissioned. Moreover it broadens the types of damages for which victims are entitled to claim compensation. In addition to personal injury and damage to property, the 2004 Protocol entitles victims inter alia to claim compensation for measures to reinstate a significantly impaired environment and for loss of income deriving from a direct economic interest in any use or enjoyment of the environment. These amendments convinced Switzerland to join the Paris Nuclear Liability Convention in 2009. Its accession will become effective when the 2004 Protocol comes into force.

The 1963 Brussels Supplementary Convention bolsters the Paris Nuclear Liability Convention’s p. 1308regime by stipulating that the contracting states have to provide for additional funds in cases where the amounts of compensation to be paid by the installation’s operator under the Paris Convention are insufficient. To keep the Brussels Supplementary Convention and the Paris Nuclear Liability Conventions synchronized, each revision of the Paris Convention went hand in hand with a revision of the Brussels Supplementary Convention (1964 and 1982 Protocols). The ‘post-Chernobyl’ protocol to the Brussels Supplementary Convention of 2004, which increases the amounts of compensation considerably, is not yet in force. The Brussels Supplementary Convention and its 1964 and 1982 amending protocols have been adopted so far by 12 states, most of which belong to the EU (Belgium, Denmark, Finland, France, Germany, Italy, the Netherlands, Norway, Slovenia, Spain, Sweden and the →United Kingdom). From the EU Member States that adhere to the Paris Nuclear Liability Convention, only →Greece and →Portugal have not joined the Brussels Supplementary Convention. Recently Switzerland has also ratified the Brussels Supplementary Convention including all protocols. Its ratification will become effective when the 2004 Protocol to the Brussels Supplementary Convention will enter into force (the latest status of the amended Brussels Supplementary Convention and its 2004 Protocol is available at <www.oecd-nea.org>).

3. International Maritime Organization

For the field of maritime law, a third actor has to be mentioned: the International Maritime Organization (→IMO). In a joint effort, the IAEA, the OECD and the IMO hosted in 1971 an international conference in Brussels, which adopted the 1971 Brussels Civil Liability Convention (Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material of 17 December 1971, 974 UNTS 255).

This convention in essence exonerates maritime players from liability for nuclear damage to ensure that maritime liability rules do not interfere with the liability regime set forth by the Paris and Vienna Nuclear Liability Conventions. One common feature of the Paris and Vienna Nuclear Liability Conventions is the channelling of liability onto the operator of the nuclear installation (infra III.1.). Therefore the 1971 Brussels Civil Liability Convention exempts those persons from liability who by virtue of an international convention or of national maritime transport law rules might be held liable for damage caused by a nuclear incident. The exemption applies if the operator of a nuclear installation is also liable for that damage, be it according to the Paris Nuclear Liability Convention, the Vienna Nuclear Liability Convention or by provisions of national law that correspond to the rules of these conventions (art 1 1971 Brussels Civil Liability Convention). Therefore the shipowner is never liable for nuclear damage caused by the transport of nuclear material unless he caused the damage intentionally. This exoneration from liability does not affect the liability of the operator of a nuclear ship for damage caused by nuclear fuel or radioactive waste produced in such ship (art 3 1971 Brussels Civil Liability Convention). The 1971 Brussels Civil Liability Convention entered into force on 15 July 1975. Today 17 states have joined this convention: Argentina, Belgium, Bulgaria, Denmark, Dominican Republic, Finland, France, Gabon, Germany, Italy, Latvia, Liberia, the Netherlands, Norway, Spain, Sweden and Yemen.

An earlier attempt to unify the law of the liability of operators of nuclear ships was not successful. The Convention on the Liability of Operators of Nuclear Ships of 25 May 1962 ((1963) 57 Am.J.Int’l L. 268) has not yet entered into force and it is very unlikely that this will change in the near future. Under this Convention the operator of a nuclear ship is strictly liable for nuclear damage caused by the ship up to a certain liability cap. Some states, for example Germany, have, however, transposed the general principles of this Convention into their national tort law.

4. Towards a global or at least a European liability regime?

This brief overview of the international treaty law has shown that it is very difficult to create a truly uniform solution at the global level. As not even all major nuclear power states have joined one of the major two liability regimes, the Vienna and the Paris regime, there is little hope that considerable progress will be made in the near future to unify the law substantively. It is, however, expected that the number of states joining the international regime will slowly increase over the coming years. There is hope that the recent ratification of the Nuclear Supplementary Compensation p. 1309Convention by the United States will encourage other states to join this convention, which is open to all states regardless of whether they are parties to any other international nuclear liability regime (Norbert Pelzer, ‘On Global Treaty Relations: Hurdles on the Way towards a Universal Civil Nuclear Liability Regime’ (2008) 6 EurUP 268, 272). If a state that is not a party to the Paris or the Vienna Nuclear Liability Convention wants to join the Nuclear Supplementary Compensation Convention it must, however, ensure that its national legislation is consistent with certain minimum standards laid down in the annex to the SC Convention as far as those provisions are not directly applicable in that contracting state.

Given that the major effects of most nuclear accidents usually occur on the continent where the nuclear facility or installation is located, there might be better chances to unify the law on a regional basis. A regionalized system would facilitate compromises with regard to liability caps and additional funds as such policy choices are often based on the standard of economic development of a state or a region. It remains doubtful, however, even within the European Union, whether more uniformity may be reached through international conventions. The current system still reflects the old dividing line of the Cold War: most (but not all) Western European states are party to the Paris Nuclear Liability Convention, whereas many Eastern European states still adhere to the Vienna Nuclear Liability Convention. There is little hope that the European states belonging to one of these conventions will withdraw from it and join the alternative system in the near future (Ulrich Magnus, ‘Probleme des internationalen Atomhaftungsrechts’ in Dietmar Baetge, Jan von Hein and Michael von Hinden (eds), Die richtige Ordnung: Festschrift für Jan Kropholler zum 70. Geburtstag (Mohr Siebeck 2008) 595, 601).

To link the Vienna and the Paris regime, the Joint Protocol (Joint Protocol relating to the application of the Vienna Convention on Civil Liability for Nuclear Damage and the Paris Convention on Third Party Liability in the Field of Nuclear Energy of 21 September 1988, 1672 UNTS 293) was elaborated. This protocol ‘bridges’ the gap between both liability conventions by mutually extending the benefits of one convention to victims located in states of the other convention and by providing for rules that shall limit the simultaneous application of both Conventions. This ‘bridging’ was necessary to close a severe gap in the law. Put simply, the Paris Nuclear Liability Convention applies to nuclear incidents occurring in the territory of a contracting state and to damage suffered in such territory (art 2 Paris Nuclear Liability Convention). The Vienna Nuclear Liability Convention is based on the same principle even if there is no explicit rule on its geographical scope of application. As a consequence, a nuclear incident caused in a Vienna state that caused damage in a Paris state is not covered by either of the conventions and vice versa (Norbert Pelzer, ‘Conflict of Laws Issues under the International Nuclear Liability Conventions’ in Jürgen F Baur and others (eds) Festschrift für Gunther Kühne zum 70. Geburtstag (Verlag Recht und Wirtschaft 2009) 819, 836f). Through the Joint Protocol, victims of a nuclear accident occurring in a Paris state that has caused damage in a Vienna state can be compensated under the Paris regime and vice versa, provided that both states have ratified the Joint Protocol. Thus far 28 states have ratified the Joint Protocol, among them 19 EU Member States (Bulgaria, Bulgaria Czech Republic, Denmark, Estonia, Finland, France Germany, Greece, Hungary, Italy, Latvia, Lithuania, the Netherlands, Poland, Romania, Slovakia, Slovenia, Sweden) (the latest status of the Joint Protocol is available at <www.iaea.org>). Given that not all EU states adhering to one of the basic liability conventions have ratified the Joint Protocol, even this instrument does not ensure uniformity within the EU.

Against this background the European Commission in its Nuclear Illustrative Programme of 2007 raised the idea of ‘developing a harmonised liability scheme and mechanisms to ensure the availability of funds in the event of damage caused by a nuclear accident’ (Commission of the European Communities, ‘Communication from the Commission to the Council and the European Parliament: Nuclear Illustrative Programme’ COM(2007) 565 final, p 23). Until now, the Commission has, however, not pursued this idea further (on a European nuclear liability instrument de lege ferenda Monika Hinteregger, ‘Atomhaftung in Europa – Bestand und Perspektiven’ in Peter Apathy and others (eds), Festschrift für Helmut Koziol zum 70. Geburtstag (Jan Sramek Verlag 2010) 667, 676f).

III. p. 1310Uniform law and private international law

1. No comprehensive international liability system

To understand the interplay between the international liability conventions and the principles of private international law, it is important to note that none of the main international liability regimes (Paris Regime, Vienna Regime and the SC Regime) provides for a comprehensive regime covering all aspects of liability towards third parties for nuclear damage. These instruments merely unify the core elements of liability. The regime set forth by the various conventions rests on the following key principles (Susanne Kissich, Internationales Atomhaftungsrecht: Anwendungsbereich und Haftungsprinzipien (Nomos 2004) 62–86; Carlton Stoiber and others, Handbook on Nuclear Law (IAEA 2003) 109–16; Tom Vanden Borre, ‘Shifts in Governance in Compensation for Nuclear Damage, 20 Years after Chernobyl’ in Michael Faure and Albert Verheij (eds), Shifts in Compensation for Environmental Damage (Springer 2007) 261, 271–8):

  • The liability of the operator of a nuclear installation is designed as strict liability (ie regardless of fault) with few defences for exoneration from liability. The operator is for example not liable if the nuclear accident results from an armed conflict (arts 3, 9 Paris Nuclear Liability Convention; art IV(1), (3) Vienna Nuclear Liability Convention; art 3(3), (5) Annex to SC Convention).

  • The liability for nuclear damage is ‘channelled’ to the operator of the nuclear installation that is the cause of the damage (art 6 Paris Nuclear Liability Convention; art II(5) Vienna Nuclear Liability Convention; art 3 Annex to SC Convention). Thus third parties are for example prevented from suing the supplier of nuclear technology for damages.

  • The liability of the operator is capped (art 7 Paris Nuclear Liability Convention; art V Vienna Nuclear Liability Convention; art 4 Annex to SC Convention). So beyond a certain point the risks of a nuclear accident are socialized.

  • It is compulsory for operators to insure against liability risks to ensure that funds will be made available to third parties (art 10 Paris Nuclear Liability Convention; art VII Vienna Nuclear Liability Convention; art 5 Annex to SC Convention).

  • Jurisdiction for damages actions is exclusively conferred upon the courts of the contracting party within whose territory the nuclear accident occurred (art 13(a) Paris Nuclear Liability Convention; art XI(1) Vienna Nuclear Liability Convention; art XIII(1) SC Convention).

  • In addition the conventions define the losses for which compensation can be claimed (art 3(a) Paris Nuclear Liability Convention; art I(1)(k) Vienna Nuclear Liability Convention; art I(f) SC Convention) and set forth limitation periods (art 8 Paris Nuclear Liability Convention; art VI Vienna Nuclear Liability Convention; art 9 Annex to SC Convention).

Certain issues are not governed by the international regime set forth by the conventions. There is for example no general definition of the legal term ‘operator’. Further, all conventions recognize that ‘the nature, form and extent of the compensation’ as well as the ‘equitable distribution’ of the funds shall be governed by national law (art 11 Paris Nuclear Liability Convention; art VIII Vienna Nuclear Liability Convention; art 11 Annex to SC Convention). Moreover, the contracting states may deviate to a certain extent with regard to the rules harmonized by the Conventions (for example by fixing different liability caps or limitation periods). Finally, states may declare reservations with regard to certain provisions which curtail the unifying effect even further. Germany, for example, has declared that the exoneration of the operator in cases of armed conflicts or similar circumstances will not apply with respect to damage occurring within Germany (§ 25(3) German Law on Nuclear Energy (Gesetz über die friedliche Verwendung der Kernenergie und den Schutz gegen ihre Gefahren (Atomgesetz) of 23 December 1959, BGBl. I 1565, as amended, henceforth AtG).

Given that the various conventions harmonize the law only partially and that each regime has only attracted a limited number of states so far, the current system can be described as patchwork legislation or as a ‘labyrinth’ of treaty law (Tom Vanden Borre, ‘Shifts in Governance in Compensation for Nuclear Damage, 20 Years after Chernobyl’ in Michael Faure and Albert Verheij (eds), Shifts in Compensation for Environmental Damage (Springer 2007) 261, 268). The coexistence of various conventions whose rules are supplemented by national law may lead in trans-boundary cases to different treatment of the victims of nuclear damage as a closer look at the issues of jurisdiction and applicable law shall demonstrate. For reasons p. 1311of space, the focus below will be on the application of the liability regimes that are in force for EU Member States.

2. Jurisdiction

All conventions provide that jurisdiction for actions for compensation for nuclear damage lies exclusively with the courts of the contracting party within whose territory the nuclear incident occurred (art 13(a) Paris Nuclear Liability Convention; art XI(1) Vienna Nuclear Liability Convention). If the nuclear incident has occurred outside the territory of the contracting parties or if the place of the nuclear incident cannot be determined with certainty, jurisdiction over such actions shall lie exclusively with the courts of the contracting party in whose territory the nuclear installation of the operator allegedly liable is situated (art 13(b) Paris Nuclear Liability Convention; art XI(2) Vienna Nuclear Liability Convention). If, according to these rules, courts of more than one contracting party have jurisdiction, the conventions provide for mechanisms to identify an exclusive forum for all claims against the operator (art 13(c) Paris Nuclear Liability Convention; art XI(3) Vienna Nuclear Liability Convention). Courts in other contracting states must dismiss the action for damages. Thus in cases of damage abroad, victims might have to litigate outside their home state.

The rationale behind the concentration of all proceedings arising out of the same nuclear incident against the operator (or a direct claim against its insurer or guarantor) ‘is the need for a single legal mechanism to ensure that the limitation on liability is not exceeded. Moreover, if suits arising out of the same incident were to be tried and judgments rendered in the courts of several different countries, the problem of assuring equitable distribution of compensation might be insoluble’ (Revised Exposé des Motifs of the Paris Convention, available at <www.oecd-nea.org/law/nlparis_motif.html>, para 54).

Given the coexistence of different instruments, such a concentration of proceedings is, however, not always ensured. Each convention binds only the courts of the contracting states. Victims in non-contracting states or states adhering to another convention that have not ratified the Joint Protocol are not bound by the exclusive jurisdiction rule and may bring their actions for damages before a court that has jurisdiction according to its own procedural law. The following hypothetical examples shall demonstrate the consequences of this position.

Assume that a nuclear accident takes place in Romania and also causes damage in Belgium. In this scenario Belgian victims are entitled to sue either in Belgium or in Romania. As Belgium is a Paris state and Romania is a Vienna state, neither convention applies to the case (both conventions apply only to accidents that occurred in the territory of a contracting state). The Joint Protocol (which mutually enlarges the benefits of one convention to victims located in a contracting state of the other convention) does not apply either, as Romania has ratified it but not Belgium. A court would thus rely on its general procedural law to determine its jurisdiction. As the defending operator of the nuclear installation is domiciled in an EU Member State, the Brussels I Regulation applies, which allows the Belgian victims to sue the operator either at his domicile in Romania (art 2 Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12/1)/art 4 Brussels I Regulation (recast) (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1; →Brussels I (Convention and Regulation))) or at the place where the harmful event occurred (art 5(3) Brussels I Regulation/art 7(2) Brussels I Regulation (recast)). The ECJ has ruled that the place where the harmful event took place covers both, the place where the damage occurred as well as the place of the event giving rise to the damage, so that the defendant may be sued at the choice of the plaintiff in one of those two places (Case C-21/76 SCJEC Handelskwekerij GJ Bier BV v Mines de Potasse d’Alsace SA [1976] ECR 1735, paras 24–5). The victims could therefore bring the action either in Romania (place of the event giving rise to the damage) or in Belgium (place where the damage occurred). It is very likely that the Belgian victims would bring their action before a court in Belgium to avoid out-of-state litigation.

If in the same hypothetical, persons residing in Germany would suffer damage, those victims could only sue in Romania. Germany (Paris Nuclear Liability Convention state) and p. 1312Romania (Vienna Nuclear Liability Convention state) are parties to different liability regimes. Nevertheless as both states have ratified the Joint Protocol, the Vienna Nuclear Liability Convention would apply as Romania was the territory in which the accident took place (art III(2) Joint Protocol). Therefore victims in Germany are compensated under the liability regime of the Vienna Nuclear Liability Convention including its jurisdiction rule. If one widens the lens even further and assumes that the accident also caused damage in Austria and Luxembourg, the operator might face actions before courts of these countries, neither of which are bound by the Paris or the Vienna Nuclear Liability Convention meaning that plaintiffs could rely on art 5(3) Brussels I Regulation/art 7(2) Brussels I Regulation (recast) to sue in their home countries (all examples by Ulrich Magnus, ‘Probleme des internationalen Atomhaftungsrechts’ in Dietmar Baetge, Jan von Hein and Michael von Hinden (eds), Die richtige Ordnung: Festschrift für Jan Kropholler zum 70. Geburtstag (Mohr Siebeck 2008) 595, 606–7). Against this background, a further unification of jurisdiction rules is warranted to avoid forum shopping, which might distort the aim of an equitable distribution of compensation amongst different classes of victims.

3. Applicable law

Issues not governed by the rules laid down in the Paris or Vienna Nuclear Liability Convention must be decided according to national law. The conventions explicitly provide that the nature, form and extent of the compensation shall be governed by the law of the court that has jurisdiction under the respective Convention (art 14(b) Paris Nuclear Liability Convention; arts I(1)(e) VIII Vienna Nuclear Liability Convention). This is usually the court of the country in which the accident took place. The reference to the national law includes the rules of private international law of that state (Revised Exposé des Motifs of the Paris Nuclear Liability Convention, available at <www.oecd-nea.org/law/nlparis_motif.html>, para 60). Thus the competent court will apply its choice-of-law rule for general tort cases or nuclear accidents that it would also apply to cases not covered by the Convention (Ulrich Magnus, ‘Probleme des internationalen Atomhaftungsrechts’ in Dietmar Baetge, Jan von Hein and Michael von Hinden (eds), Die richtige Ordnung: Festschrift für Jan Kropholler zum 70. Geburtstag (Mohr Siebeck 2008) 595, 610).

Within the EU, the →Rome II Regulation (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40) lays down unified conflict rules for non-contractual obligations. The Regulation’s scope does not, however, cover non-contractual obligations arising out of nuclear damage (art 1(2)(f) Rome II Regulation). The drafters of the Rome II Regulation were of the opinion that there was no need of a harmonization of the choice-of-law rules for nuclear damage as this area of law is dominated by uniform law. Moreover, the European Commission seemed to fear that no agreement could be reached on the design of a conflict rule. The exclusion of non-contractual obligations arising out of nuclear damage was therefore explained with ‘the importance of the economic and State interests at stake’ (European Commission, ‘Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligations (“Rome II”)’ COM(2003) 427 final, p 9). In light of the gaps within the international conventions and the fact that those conventions do not cover all varieties of damage caused by nuclear technology (they do not apply to damage caused by the use of radioactive substances for medicinal purposes), the exemption of nuclear damage in its entirety is not justified and has been rightly criticized (Abbo Junker, ‘Die Rom II-Verordnung: Neues Internationales Deliktsrecht auf europäischer Grundlage’ [2007] NJW 3675, 3677; Ulrich Magnus, ‘Probleme des internationalen Atomhaftungsrechts’ in Dietmar Baetge, Jan von Hein and Michael von Hinden (eds), Die richtige Ordnung: Festschrift für Jan Kropholler zum 70. Geburtstag (Mohr Siebeck 2008) 595, 601 and 610).

Without harmonization each court in the EU applies its national choice-of-law rules. The design of these rules differs considerably. Whereas some courts would apply the law of the place of the damage (lex damni), other courts would resort to the law of the place of the dangerous activity or would even allow the plaintiff to unilaterally choose between the law in the country in which the damage occurred or the law of the country in which the action giving rise to the damage took place (see the general overview on trans-boundary environmental p. 1313damage provided by Thomas Kadner Graziano, Gemeineuropäisches Internationales Privatrecht (Mohr Siebeck 2002) 236–57; Christophe Bernasconi, ‘Civil Liability Resulting from Transfrontier Environmental Damage: A Case for the Hague Conference?’ (1999) 12 Hague Yrbk Intl L 35, 74–84).

The lex damni could be applied by English courts (Private International Law (Miscellaneous Provisions) Act 1995 (c 42)) as well as by Irish courts (Paul O’Higgins and Patrick McGrath, ‘Third Party Liability in the Field of Nuclear Law: An Irish Perspective’ (2002) 70 Nuclear Law Bulletin 7, 18). The general choice of law rule for tort cases in Austria calls for the application of the law of the country in which the event giving rise to the nuclear damage occurred, ie where the nuclear accident took place (§ 48(2) Austrian Federal Code on Private International Law (Bundesgesetz über das internationale Privatrecht, BGBl. No 304/1978, as amended)). If the injured party requested it, the court may also apply the lex damni in case the damage occurred in Austria (§ 23(1) Austrian Law on Nuclear Liability (Bundesgesetz über die zivilrechtliche Haftung für Schäden durch Radioaktivität, BGBl. No 170/1998, henceforth AtomHG)). In case the damage has occurred outside Austria but is to be judged under Austrian law, an indemnification is only possible as far as the personal statute of the plaintiff allows so (§ 23(2) AtomHG).

The law to be applied by a German court depends on the fact where the accident occurred: in a situation where the action is directed against the operator of the nuclear installation causing the damage who is domiciled in another Paris Nuclear Liability Convention state, German law as the lex fori applies (§ 40(1) AtG). Certain legal issues have, however, to be judged according to the law of the contracting state on whose territory the installation is located, eg the questions of who is to be regarded as the operator of the nuclear installation, to which maximum amount this person can be made liable or the length of the limitation period (§ 40(2) AtG). In cases where German courts have jurisdiction to rule on claims for nuclear damage caused by an installation located in a state that is not party to the Paris Nuclear Liability Convention, the general choice-of-law rule for tort claims applies (art 40 Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche of 21 September 1994, BGBl. I 2494, as amended)). According to this rule tort claims are governed by the law of the country in which the liable party has acted, ie the law of the country in which the nuclear accident took place. At the demand of the injured party, the court may also apply the law of the country in which the damage occurred, ie German law.

In summary the lack of harmonized conflict rules for nuclear damage at the EU level does not foster legal clarity and creates too much room for forum shopping to influence the applicable law of damages. When revising the Rome II Regulation, the EU should strike down the exception for non-contractual claims arising out of nuclear damage and introduce a choice-of-law rule that will apply in situations where the claim is not governed by an international liability convention.

4. Recognition and enforcement of judgments

All conventions provide for some general rules to ensure that a judgment rendered in one contracting state that has acquired the effect of res iudicata may be recognized and enforced in another contracting state (art 13(d) Paris Nuclear Liability Convention; art XII Vienna Nuclear Liability Convention). The rules on enforcement apply only to contracting states or non-contracting states that have ratified the Joint Protocol. All other states may determine the recognition and enforcement of foreign judgments according to their lex fori (including EU law). Thus a judgment rendered by a German court that is to be enforced in Austria (which has ratified neither the Paris nor the Vienna Nuclear Liability Convention) will be based on the regime set forth by the Brussels I Regulation, whereas the enforcement of the same judgment in France, which is party to the Paris Nuclear Liability Convention, would be governed by this convention.

Literature

  • Christophe Bernasconi, ‘Civil Liability Resulting from Transfrontier Environmental Damage: A Case for the Hague Conference?’ (1999) 12 Hague Yrbk Intl L 35;

  • Monika Hinteregger, ‘Atomhaftung in Europa – Bestand und Perspektiven’ in Peter Apathy and others (eds), Festschrift für Helmut Koziol zum 70. Geburtstag (Jan Sramek Verlag 2010) 667;

  • Abbo Junker, ‘Die Rom II-Verordnung: Neues Internationales Deliktsrecht auf europäischer Grundlage’ [2007] NJW 367582;

    • Thomas Kadner Grazianop. 1314, Gemeineuropäisches Internationales Privatrecht (Mohr Siebeck 2002);

    • Susanne Kissich, Internationales Atomhaftungsrecht: Anwendungsbereich und Haftungsprinzipien (Nomos 2004);

    • Ulrich Magnus, ‘Probleme des internationalen Atomhaftungsrechts’ in Dietmar Baetge, Jan von Hein and Michael von Hinden (eds), Die richtige Ordnung: Festschrift für Jan Kropholler zum 70. Geburtstag (Mohr Siebeck 2008) 595;

    • Paul O’Higgins and Patrick McGrath, ‘Third Party Liability in the Field of Nuclear Law: An Irish Perspective’ (2002) 70 Nuclear Law Bulletin 7;

    • Norbert Pelzer, ‘On Global Treaty Relations: Hurdles on the Way towards a Universal Civil Nuclear Liability Regime’ (2008) 6 EurUP 268;

    • Norbert Pelzer, ‘Conflict of Laws Issues under the International Nuclear Liability Conventions’ in Jürgen F Baur and others (eds), Festschrift für Gunther Kühne zum 70. Geburtstag (Verlag Recht und Wirtschaft 2009) 819;

    • Carlton Stoiber and others, Handbook on Nuclear Law (IAEA 2003);

    • Tom Vanden Borre, ‘Shifts in Governance in Compensation for Nuclear Damage, 20 Years after Chernobyl’ in Michael Faure and Albert Verheij (eds), Shifts in Compensation for Environmental Damage (Springer 2007) 261.