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Transboundary River Pollution and "Consideration ofForeign Law under Applicable Law" A Study Basedon 2000 Baia Mare Accident (summary)MidoriNARAZAKI
Professor of Law, Chuo University

This paper examines the extent of the "consideration foreign state's administrative permission as faces" under applicable law, on the subject of the Baia Mare Cyanide Spill accident in 2000.
In the Baia Mare accident, the gold mine in Romania operated by a joint venture
owned by the REMIN as a scate-ouned enterprise in Romania and the Esmeralda as a foreign-owned company from Australia, has caused serious damage in neighbouring countries
by enormous cyanide spill from its collapsed tailing dam into the rivers Some§ (Szamos),Tizsa and finally Danube.
The gold mine in Romania used a toxic cyanide for gold extraction. The wastewater
was stored in the tailing dam and circulated in facilities. The joint venture operating themine had got all needed administrative and environmental authorizations from Romanian
government before the operation. The tailing dam was already decrepit at the time ofstarting the operation and the closed circulation system had also problems. In end of January 2000 the tailing dam was suddenly collapsed and the cyanide-rich tailing was spilled
into the rivers. The BMTF (Saia Mare Task Force) which investigated into the accident
pointed out in its report that the Environmental Impact Assessment (EIA) by Romanian
government did not fulfill the standards of quality internationally accepted, though themine has complied with Romanian law.
In chis case, the mine operating company pied in defense for justification in a lawsuit in
Hungary that it had granted official permissions and its operation was then normallywithin a scope of that permissions.
The applicable law to the liability of transboundary nuisance, lex loci delicti, would bein this case Hungarian civil law as the law of the state where the damaging effect took
place. It also could be taken into account by courts in this case Romanian administrative
law as the law of the state which granted the official permissions for the operation.
A illegality or unlawfulness of the nuisance as a legal condition of civil liability should
be decided all together with its legal consequences by lex loci delicti, not separately and not[Midori NARAZAKI]Transboundary River Pollution and "Considerationof Foreign Law under Applicable Law" - A Study
Based on 2000 Baia Mare Accident (summary)233

preliminarily decided by the law of the state where the permission was granted.
Taking foreign law into consideration under applicable law is an issue under choice-oflaw rules.

To consider this issue should be distinguished applying a provision of

no-fault-liability from the otherwise lawful activities of specific industries from applying aprovision which defines general fault-liability.
The fact that the operating enterprise had complied with and it operated in accordancewith its governmental authorities' law, could be considered as a factual element of legal
condition of the "lawful activities" in no-fault liability and also make the spill justified forfactual situations under legal condition "not intentionally or accidentally" in general delict
liability, though it should be also considered whether it can be allowed by rules of public
international law.
In the case, Romania refused an enforcement of the judicial decision by Hungarian
court, the plaintiffs did not receive descent compensation by the trial of Baia Mare accident.