Legal Affairs
2024

Third International Workshop
on the Indemnificationof Damage in the Eventof a Nuclear Accident

Workshop Proceedings
Bratislava, Slovak Republic
18-20 October 2017

NE A

Nuclear Law

Third International Workshop
on the Indemnification of Damage in the Eventof a Nuclear Accident
Workshop Proceedings
Bratislava, Slovak Republic
18-20 October 2017

© OECD 2024
NEA No. 7429
NUCLEAR ENERGY AGENCY
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membership consists of 34 countries: Argentina, Australia, Austria, Belgium, Bulgaria, Canada,
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The mission of the NEA is:– to assist its member countries in maintaining and further developing, through international
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FOREWORD

Foreword

The First International Workshop on the Indemnification of Damage in the Event of a Nuclear
Accident was organised by the OECD Nuclear Energy Agency (NEA) in co-operation with the
French authorities and held in November 2001 in Paris, France. Its purpose was to integrate third
party liability and compensation issues into an essentially technical emergency exercise (theInternational Nuclear Emergency Exercise INEX-2000, a simulated nuclear accident at theGravelines Nuclear Power Plant in France). The emphasis of the workshop was placed on themanner in which the 1960 Paris Convention on Third Party Liability in the Field of Nuclear
Energy 1 and the 1963 Brussels Convention Supplementary to the Paris Convention 2 would apply
to the indemnification of damage incurred by victims in states parties to those conventions as
a result of a nuclear accident scenario.
The Second International Workshop on the Indemnification of Damage in the Event of a
Nuclear Accident was held in Bratislava, Slovak Republic, in May 2005. The workshop,
co-organised by the NEA and the Nuclear Regulatory Authority of the Slovak Republic, was basedon two fictitious scenarios aimed at testing the implementation of various third party liability
regimes with a special focus on an assessment of the indemnification measures that would betaken if a nuclear accident occurred in a state party to the 1963 Vienna Convention on Civil
Liability for Nuclear Damage, 3 and more specifically a state party to both the Vienna Convention
and the 1988 Joint Protocol Relating to the Application of the Vienna Convention and the Paris
Convention. 4
The Third International Workshop on the Indemnification of Damage in the Event of a
Nuclear Accident (the “workshop”) was again held in Bratislava, Slovak Republic, in co-operation
with the Nuclear Regulatory Authority of the Slovak Republic in October 2017. This workshop
assessed the implementation of currently applicable international nuclear liability conventions
in conjunction with, inter alia, non-convention states regimes, assuming all the modernised
international instruments have come into force. The exercise therefore focused on theimplementation of the following instruments: i) the Paris Convention and the Brussels
Supplementary Convention, both as amended by the 2004 Protocols; 5 ii) the Vienna Convention

1

Convention on Third Party Liability in the Field of Nuclear Energy of 29th July 1960, as amended by the
Additional Protocol of 28th January 1964 and by the Protocol of 16th November 1982 (1960), 1519 UNTS
329 (Paris Convention or PC).

2

Convention of 31st January 1963 Supplementary to the Paris Convention of 29th July 1960, as amended by
the Additional Protocol of 28th January 1964 and by the Protocol of 16th November 1982 (1963), 1041 UNTS
358 (Brussels Supplementary Convention or BSC).

3

Vienna Convention on Civil Liability for Nuclear Damage (1963), IAEA Doc. INFCIRC/500, 1063 UNTS 266,
entered into force 12 Nov. 1977 (Vienna Convention or VC).

4

Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention (1988),
IAEA Doc. INFCIRC/402, 1672 UNTS 293, entered into force 27 Apr. 1992 (Joint Protocol).

5

On 12 February 2004, the contracting parties to the Paris Convention and to the Brussels Supplementary
Convention adopted two Protocols to respectively amend each of these Conventions (jointly referred toas the “2004 Protocols”), which entered into force on 1 January 2022. In this report, the Paris Convention
as amended by the 2004 Protocol is referred to as the “Revised Paris Convention” or the “RPC”, unofficial
consolidated text provided in: NEA (2017), “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, by the Protocol of 16
November 1982 and by the Protocol of 12 February 2004”, NEA Doc. NEA/NLC/DOC(2017)5/FINAL. The
Brussels Supplementary Convention as amended by the 2004 Protocol is referred to as the “Revised

THIRD INTERNATIONAL WORKSHOP ON THE INDEMNIFICATION OF DAMAGE IN THE EVENT OF A NUCLEAR ACCIDENT, NEA No. 7429, © OECD 2024

3

FOREWORD

and the 1997 Protocol to amend the Vienna Convention; 6 iii) the Joint Protocol; and iv) theConvention on Supplementary Compensation for Nuclear Damage. 7
The workshop was organised around seven substantive sessions: 8•

Session 1: Notification of an accident and evacuation process;•Session 2: Determining the damage to be compensated;•

Session 3: Proving the causal link;•

Session 4: Identifying the liable entity;•

Session 5: Claims handling;•

Session 6: Resolving disputes;•

Session 7: Amounts available.

Discussions focused on the legal aspects of compensating victims having suffered nuclear
damage due to a nuclear incident occurring at a land-based nuclear power plant, which would
cause transboundary damage. More than 170 participants from 33 countries (of residence)
attended the workshop, including non-NEA member countries such as the People’s Republic ofChina (China), Croatia, India, Nigeria, the Philippines, Singapore, South Africa, Ukraine and theUnited Arab Emirates. Participants came from public and private sectors representing
governments, regulatory authorities, academia, the judiciary, operators, suppliers, law firms,
the European Commission (EC) and the International Atomic Energy Agency (IAEA).
Prior to the workshop, a questionnaire was developed to prepare the sessions and gather
information on the implementation of the international nuclear liability instruments and thenational legislation from convention and non-convention states (the “questionnaire”). 9 The
main purpose of the questionnaire was to identify the laws and regulations applicable in eachcountry in the event of a nuclear accident at a land-based nuclear power plant (no nuclear
transport-related issues were addressed), and to have an overview of how the legal systems aredesigned and would operate, especially when there are no treaty relations between the state inwhose territory the nuclear accident occurred and the state in whose territory nuclear damage
is suffered.
The Secretariat received responses to the questionnaire from 29 countries. 10 Country
responses to the questionnaire have been summarised for each specific session of the workshop.
This report was approved by the Nuclear Law Committee on 7 October 2022 by written
procedure and prepared for publication.

Brussels Supplementary Convention” or the “RBSC”, unofficial consolidated text provided in: NEA(2017), “Convention of 31 January 1963 Supplementary to the Paris Convention of 29 July 1960, as
amended by the Additional Protocol of 28 January 1964, by the Protocol of 16 November 1982 and by theProtocol of 12 February 2004”, NEA Doc. NEA/NLC/DOC(2017)6/FINAL.
6

Protocol to Amend the 1963 Vienna Convention on Civil Liability for Nuclear Damage (1997), IAEA Doc.
INFCIRC/566, 2241 UNTS 302, entered into force 4 Oct. 2003 (1997 Protocol to Amend the Vienna
Convention or Revised Vienna Convention). For the purposes of this report, the “Vienna Conventions”
will hereinafter refer to the Vienna Convention and the Revised Vienna Convention jointly.

7

Convention on Supplementary Compensation for Nuclear Damage (1997), IAEA Doc. INFCIRC/567, 36
ILM 1473, entered into force 15 Apr. 2015 (CSC).

8

The detailed programme of the workshop is reproduced in Annex 1 to this report.

9

The questionnaire is provided in Annex 2 to this report.

10 For more information, see an overview of the replies to the questionnaire provided in the Opening
Session of this report.

4

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ACKNOWLEDGEMENTS

Acknowledgements

The Nuclear Energy Agency (NEA) would like to thank the Slovak Nuclear Regulatory Authority
for hosting the Third International Workshop on the Indemnification of Damage in the Event ofa Nuclear Accident. The NEA would also like to thank Mr Martin Pospíšil (Slovak Nuclear
Regulatory Authority) and Mr Christian Raetzke (CONLAR Law Firm) for their commitment andcontribution in preparing and moderating the workshop.
The conception, drafting and overall co-ordination of the report was led by Ms Elena deBoissieu, Legal Adviser at the NEA in the Division of Nuclear Law (DNL), along with Mr Sotiris
Konstantis, former NEA Legal Adviser. This report would not have been possible without thestrong and enthusiastic support of the many NEA member and partner countries. The NEA is
thankful for the valuable contribution of those countries that provided replies to thequestionnaire of the Third International Workshop on the Indemnification of Damage in the
Event of a Nuclear Accident:

Countries
Australia

Austria

Belgium

CanadaChina

Czechia

FinlandFranceGermany

GreeceHungary

India

Ireland

Italy

Japan

Luxembourg

Netherlands

Nigeria

Philippines

PolandPortugal

Romania

Slovak Republic

Slovenia

SwedenTürkiye

United Kingdom

UkraineUnited States

The NEA extends its gratitude in particular to the speakers and chairs of the Third
International Workshop on the Indemnification of Damage in the Event of a Nuclear
Accident for their valuable contribution at the workshop and insightful comments during thereview process of the report:

Name

Organisation*

Country

Mr Andrea Gioia

International Atomic Energy Agency

AustriaProf. Monika Hinteregger

Karl-Franzens-University of Graz

Austria

Mr Marc Beyens

ENGIE Electrabel

Belgium

Mr Roland Dussart-Desart

FPS Economy, SMEs, Self-employed and Energy

Belgium

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ACKNOWLEDGEMENTS

Name

Organisation*

Country

Ms Colleen Demerchant

Natural Resources Canada

CanadaMr Jacques Hénault

Natural Resources Canada

CanadaDr Petr Záruba

Independent Legal Advisor

Czechia

Ms Fiona Geoffroy

Électricité de France

FranceMs Helena Kazamaki

ABBFranceMr Patrick Reyners

Former Head of the NEA Legal Affairs

FranceMs Florence Touïtou-Durand

Alternative Energies and Atomic Energy Commission

FranceProf. Ulrich Magnus

University of Hamburg

Germany

Prof. Vanda Lamm

Hungarian Academy of Sciences

HungaryProf. Yvonne Scannell

Trinity College Dublin

Ireland

Prof. Taro Hokugo

Ministry of Education, Culture, Sports, Science andTechnology

Japan

Mr Toshimitsu Homma

Nuclear Regulation Authority

Japan

Prof. Shinsuke Toyonaga

Nuclear Damage Compensation and Decommissioning
Facilitation CorporationJapan

Mr Kamil Adamczyk

Ministry of Energy

PolandMs Beata Sparażyńska

Ministry of Energy

PolandMr Konstantin Kryazhevskikh

Rusatom Energo International

RussiaMr Juraj Chochol

KOOPERATIVA poisťovňa, a.s.

Slovak Republic

Mr Alain Quéré

Swiss Nuclear Pool (SPN)

Switzerland

Mr Mark Tetley

Insurance Expert

United Kingdom

Mr Will Morris

Nuclear Risk Insurers Ltd.

United Kingdom

Mr Omer F. Brown, II

Omer F. Brown, II Law Office

United States

Commissioner Stephen G. Burns

Nuclear Regulatory Commission

United States

Mr Ben McRae

Department of Energy

United States

Dr Patricia Milligan

Nuclear Regulatory Commission

United States

Ms Ximena Vásquez-Maignan

Nuclear Energy Agency

Nuclear Energy Agency* The organisations mentioned in the table are those to which the speakers belonged when the Third International Workshop on the
Indemnification of Damage in the Event of a Nuclear Accident was held.

Finally, many current and former members of the NEA greatly contributed to the development
and thorough revision of this report, including Ms Chiara Petroli and Ms Robyn Jordan. In addition,
the editorial and graphic support provided by Laurie Moore and Elisabeth Villoutreix, as well as
the thorough revision and valuable comments by Carlo Piovano, are gratefully acknowledged.

6

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LIST OF ABBREVIATIONS AND ACRONYMS

List of abbreviations and acronyms

ADR

Alternative dispute resolution

CNSC

Canadian Nuclear Safety Commission

CRPPH

Committee on Radiological Protection and Public Health (NEA)DNL

Division of Nuclear Law (NEA)

DOE

Department of Energy (United States)

EC

European Commission

ECURIE

European Community Urgent Radiological Information Exchange

EPA

Environmental Protection Agency

EU

European Union

FEMA

Federal Emergency Management Agency

FNEP

Federal Nuclear Emergency Plan

IAEA

International Atomic Energy Agency

ICRP

International Commission on Radiological Protection

IEC

Incident and Emergency Centre

NEA

Nuclear Energy Agency

NIAC

Nuclear Insurers Association of Canada

NLC

Nuclear Law Committee (NEA)

NRC

Nuclear Regulatory Commission (United States)

OECD

Organisation for Economic Co-operation and Development

RLZ

Federal Radiological Situation Centre (Germany)

SNSA

Slovenian Nuclear Safety Administration

TEPCOTokyo Electric Power Company

UN

United Nations

US

United States

WPNEM

Working Party on Nuclear Emergency Matters (NEA)

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TABLE OF CONTENTS

Table of contents

Introductory session............................................................................................................................. 13
Summary of welcome addresses .................................................................................................... 13
Opening session .................................................................................................................................... 15
Setting the scene ............................................................................................................................... 15
Insurance of nuclear risks: overview of nuclear insurance system ........................................... 20
Discussion session ............................................................................................................................ 23
Overview of responses to the questionnaire ................................................................................. 24
Session 1. Notification of an accident and evacuation process ..................................................... 29
Introduction to Sub-session 1: Notification of an accident ......................................................... 29
Notification of an accident: International legal framework ........................................................ 29
Notification of an accident: A practical approach ........................................................................ 33
Discussion session ............................................................................................................................ 34
Overview of responses to the questionnaire ................................................................................. 34
Introduction to Sub-session 2: Evacuation process ...................................................................... 41
Evacuation process: Overview of the applicable frameworks ..................................................... 42
Evacuation process: A practical approach ..................................................................................... 44
Discussion session ............................................................................................................................ 47
Overview of responses to the questionnaire ................................................................................. 47
Session 1 - Conclusions .................................................................................................................... 49
Session 2. Determining the damage to be compensated ............................................................... 51
Introduction ....................................................................................................................................... 51
Determining the damage to be compensated: Evolution of the international nuclear
liability conventions ......................................................................................................................... 51
Determining the damage to be compensated: National legal systems...................................... 55
Determining the damage to be compensated: How detailed is detailed enough? ................... 60
Discussion session ............................................................................................................................ 62
Overview of responses to the questionnaire ................................................................................. 63
Session 2 – Conclusions .................................................................................................................... 70
Session 3. Proving the causal link ...................................................................................................... 73
Proving the causal link: Identifying the persons entitled to claim compensation ................... 73
Proving the causal link: Practical methods to establish the causal link .................................... 77
Discussion session ............................................................................................................................ 82
Overview of responses to the questionnaire ................................................................................. 83
Session 3 – Conclusions .................................................................................................................... 86
Session 4. Identifying the liable entity .............................................................................................. 87
Identifying the liable entity: Different approaches to channelling ............................................ 87
Identifying the liable entity: Applying in practice the exonerations from liability
provided under the nuclear liability conventions......................................................................... 90
Identifying the liable entity: Terrorism as one of the exonerations from nuclear
liability – arguments for further discussion .................................................................................. 94
Identifying the liable entity: Is channelling at risk? ..................................................................... 94

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TABLE OF CONTENTS

Discussion session ............................................................................................................................ 96
Overview of responses to the questionnaire ................................................................................. 97
Session 4 – Conclusions .................................................................................................................. 106
Session 5. Claims handling ................................................................................................................ 107
Claims handling: Is it always the insurer? ................................................................................... 107
Claims handling: How to manage transboundary claims? ........................................................ 111
Discussion session .......................................................................................................................... 113
Overview of responses to the questionnaire ............................................................................... 114
Session 5 – Conclusions .................................................................................................................. 130
Session 6. Resolving disputes ........................................................................................................... 133
Resolving disputes: Alternative Dispute Resolution mechanisms ........................................... 133
Resolving disputes: Identifying the competent court ................................................................ 136
Resolving disputes: Enforcement of foreign judgments ............................................................ 139
Discussion session .......................................................................................................................... 146
Overview of responses to the questionnaire ............................................................................... 147
Session 6 – Conclusions .................................................................................................................. 152
Session 7. Amounts available............................................................................................................ 153
Amounts available: The difference between international nuclear liability
conventions regimes ....................................................................................................................... 153
Amounts available: The reciprocity principle ............................................................................. 157
Amounts available: The impact of providing priority rules ...................................................... 163
Discussion session .......................................................................................................................... 168
Overview of responses to the questionnaire ............................................................................... 169
Session 7 – Conclusions .................................................................................................................. 175
Annex 1. The Programme of the Third International Workshop on the
Indemnification of Damage in the Event of a Nuclear Accident .............................. 177
Annex 2. The questionnaire of the Third International Workshop on the
Indemnification of Damage in the Event of a Nuclear Accident .............................. 185
Annex 3. The Final List of Participants of the Third International Workshop
on the Indemnification of Damage in the Event of a Nuclear Accident ................. 195

List of figures
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.

10

Nuclear insurance pools: Operating system ...................................................................... 21
Has your country ratified an international nuclear liability instrument? ..................... 25
Has your country adopted a nuclear liability law? ............................................................ 26
Under your legal system, is your country required to have an implementation
law or is an international instrument directly applicable? .............................................. 26
Does your country have bilateral agreements with other states that include
provisions on nuclear liability? ............................................................................................ 27
IAEA ERP system .................................................................................................................... 32
Is your country party to the 1986 Convention on Early Notification of a
Nuclear Accident? .................................................................................................................. 35
Does your country have bilateral agreements in the area of notification thatwould apply in case a nuclear accident has transboundary effects? ............................. 36
Does your country have a notification system and/or an emergency
preparedness and response scheme? ................................................................................. 39
Fukushima accident: Radiological situation off-site and corresponding protective
actions ..................................................................................................................................... 44

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TABLE OF CONTENTS

11.
Fukushima accident: Urgent protective actions ................................................................ 45
12.a. Does your national legislation provide for a definition of “nuclear damage”? ............. 64
12.b. Does the definition of "nuclear damage" under the national law reflect theone provided in any of the international nuclear liability conventions? ....................... 64
13.
Does your national legal system provide for definition(s) of heads of damage
that would entitle victims to receive compensation that are more detailed thanthose provided under the international nuclear liability convention(s)? ...................... 65
14.
Does your national legal system designate an authority/commission to provide
for a mechanism to further specify which damage shall be compensated? ................. 66
15.
In accordance with your national legislation, for which of the following typesof damage would victims of a nuclear accident be compensated? ................................. 67
16.
Is there a system to assess the extent of compensation to be paid in order todetermine whether the nuclear damage caused by a nuclear accident on yourcountry’s territory appears to exceed or is likely to exceed a certain threshold?......... 69
17.
Structure of compensation for nuclear damage caused by the Fukushima accident .. 79
18.
Breakdown of compensation for nuclear damage caused by the Fukushima
accident ................................................................................................................................... 80
19.a. Does your national legislation provide a mechanism(s) to determine the causal
link to nuclear damage so that victims avoid bearing the burden of proof before
the courts? .............................................................................................................................. 85
19.b. Does your national legislation provide a mechanism(s) to determine the causal
link to nuclear damage so that victims avoid bearing the burden of proof before
the courts? .............................................................................................................................. 86
20.a. More than one operator may be held liable ..................................................................... 100
20.b. More than one operator may be held liable ..................................................................... 100
21.
Another natural or legal person that may be held liable in addition to or insteadof a nuclear operator ........................................................................................................... 101
22.
Under your national law, the liable operator may be exempt from paying
compensation (or part of it) with respect to:.................................................................... 103
23.
Number of countries providing for each of the grounds for the exoneration of
the liable operator................................................................................................................ 103
24.
Under your national law, the liable operator is entitled to have a right ofrecourse ................................................................................................................................. 106
25.
Number of countries providing for each of the financial security options .................. 115
26.a. Are state-owned operators legally compelled to have insurance or otherfinancial security to cover their nuclear liability? (Percentage) .................................... 117
26.b. Are state-owned operators legally compelled to have insurance or otherfinancial to cover their nuclear liability? (Number of countries) .................................. 117
27.a. Does your country have a national nuclear insurance pool?......................................... 118
27.b. Does your country have a national nuclear insurance pool?......................................... 118
28.a. Does your country have a national nuclear operators’ pooling arrangement ............. 119
28.b. Does your country have a national nuclear operators’ pooling arrangement ............. 120
29.
Responsible for handling compensation claims for nuclear damage ........................... 121
30.
Existence of principles/rules of co-ordination between different financial
security providers ................................................................................................................ 123
31.
Against whom can the victims directly claim compensation ....................................... 124
32.
Combination of different options of entities against whom victims may directly
claim compensation ............................................................................................................ 124
33.a. Possibility of grouping compensation claims (“class actions”) under domestic
legislation .............................................................................................................................. 127
33.b. Possibility of grouping compensation claims (“class actions”) under domestic
legislation .............................................................................................................................. 127
34.a. Possibility of a class action organised by the state ......................................................... 128
34.b. Possibility of a class action organised by the state ......................................................... 129
35.
Transboundary claims handling procedure already set up ........................................... 129

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TABLE OF CONTENTS

36.
37.a.
37.b.
38.

39.a.
39.b.

40.
41.
42.

Bilateral (or multilateral) agreement with neighbouring countries that
addresses transboundary claims handling issues ........................................................... 130
Does your national law provide for an ADR mechanism in case the operator andvictims disagree on the extent of the compensation to be paid for nuclear
damage, as a first step before going to court? ................................................................. 148
Does your national law provide for an ADR mechanism in case the operator andvictims disagree on the extent of the compensation to be paid for nuclear
damage, as a first step before going to court? ................................................................. 148
If you are an affected state and do not have treaty relations with the installation
state, will your courts have jurisdiction under your national law to rule oncompensation for nuclear damage? .................................................................................. 150
If you are an installation state and do not have treaty relations with an affectedstate, will decisions by the affected state’s competent courts (according to theirrespective national law) be enforceable in your country under your national law? .. 152
If you are an installation state and do not have treaty relations with an affectedstate, will decisions by the affected state’s competent courts (according to theirrespective national law) be enforceable in your country under your national law? .. 152
Is there a reciprocity principle provided under your national legislation? .................. 172
Does your national law provide for priority rules for compensation of nuclear
damage? ................................................................................................................................ 173
Does your legislation or regulation provide for emergency assistance payments
to be paid, or establish a mechanism to determine such payments? .......................... 175

List of tables
1. Sections of the questionnaire ...................................................................................................... 24

12

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INTRODUCTORY SESSION

Introductory session

Summary of welcome addresses
Mr William D. Magwood, IV, Director-General of the OECD Nuclear Energy Agency (NEA),
welcomed the participants to the workshop. He pointed out the importance of treaty relations
between countries and the positive impact they have in the event of transboundary damage
caused by a nuclear incident, as they provide a clear framework to compensate victims. In linewith this, Mr Magwood emphasised the need for establishing consistent global nuclear liability
regime(s). He then mentioned the importance of emergency preparedness and evacuation
planning, with particular regard to how practical exercises could help identify the gaps indecision making and communication.
Ms Marta Žiaková, Chair of the Slovak Nuclear Regulatory Authority and Chair of the NEA
Steering Committee for Nuclear Energy (the “NEA Steering Committee”), highlighted how the
TEPCO Fukushima Daiichi Nuclear Power Plant accident (the “Fukushima accident”), beyond being
a severe nuclear safety challenge, also put a spotlight on the issue of the indemnification of
victims of nuclear damage. Ms Žiaková expressed her confidence that the workshop would serve
as a platform for the exchange of opinions, discussions and experiences, and would contribute to
a common understanding of the challenges faced in the areas of nuclear liability andcompensation for nuclear damage.
Ms Zora Mistríková, Manager of Legal and Corporate Affairs, Slovenské elektrárne, Slovak
Republic, emphasised the importance of having a sound and comprehensive legal frameworkfor nuclear liability and claims management for all the stakeholders involved in the generationof nuclear power. More specifically, a clear definition of nuclear damage and the establishmentof liability limits for nuclear operators are key to effective operation and further developmentof the commercial nuclear power plant industry.
Mr Juraj Chochol, Chair of the Slovak Nuclear Insurance Pool/Head of Non-life Department,
KOOPERATIVA poisťovňa, a.s., pointed out that the Fukushima accident demonstrated that theissue of indemnification of nuclear damage in the event of a nuclear incident is of great
importance not only to victims, but to all involved stakeholders, who need to have a clear
understanding of how nuclear liability regimes apply.
Ms Ingrid Brocková, Director General, Directorate General for Economic Cooperation,
Ministry of Foreign and European Affairs of the Slovak Republic, said that exploring the practicalaspects of the application and implementation of international nuclear liability instruments
would allow the participants to discuss compensation issues in detail (e.g. assessment of coverageavailable in the event of a nuclear incident, effectiveness of indemnification measures), andenable them to consider potential improvements to the indemnification regimes currently inplace.
Mr Anton Masár, Vice-chairman of the Board of Directors, Director of the Finances andServices Division, JAVYS a.s. (Slovak National Nuclear and Decommissioning Company),
stressed the importance of having the emergency preparedness and response procedures
already in place in case of a nuclear incident. He also noted the benefit of involving experts indecommissioning activities to discuss the establishment of relevant procedures at the national
level, especially with regard to risk assessment.
Mr Roland Dussart-Desart, Chair of the NEA Nuclear Law Committee (NLC) and Head of theLegal Division at the Belgian FPS Economy, SMEs, Self-employed and Energy, remindedparticipants that the First International Workshop on the Indemnification of Damage in the Eventof a Nuclear Accident (2001) greatly contributed to analysing the disastrous effects of the lack of
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an international framework in the area of nuclear liability at the time of an accident andhighlighted the importance of preventive measures. After the Second International Workshop on
the Indemnification of Damage in the Event of a Nuclear Accident (2005), several important events
took place, among them: (i) the Fukushima accident in March 2011, which showed how evacuationand indemnification processes may be organised in an efficient manner to the benefit of victims;(ii) the establishment of the Group on Nuclear Liability in the European Union by the EC (20112013) with the purpose of assessing possibilities to improve claims handling, increase available
insurance capacity and harmonise nuclear liability amounts within the European Union (EU); and(iii) the entry into force of the CSC in April 2015. Mr Dussart-Desart emphasised that the lessons
learnt from the Fukushima accident and the issues identified by the Group on Nuclear Liability inthe European Union fully justify the need to organise this workshop.

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OPENING SESSION

Opening session

Setting the scene
Ms Ximena Vásquez-Maignan, Head of the NEA Office of Legal Counsel, stressed theimportance of having nuclear liability and compensation regimes in place. On the one hand, anuclear incident can cause detrimental damage to health, property, the environment and theeconomy, with potential transboundary effects. On the other hand, nuclear energy brings
significant benefits, such as low-carbon electricity production and various possibilities for use
in medical diagnosis and industrial and agricultural areas, among others. Therefore, a balanceneeds to be found between the risks which, because of their “potential magnitude and peculiar
characteristics, could lead to far greater damage being suffered in the event of an accident thanwould normally be the case with conventional industrial activities”, 11 and the benefits that theuse of nuclear energy can provide.
Since the rules of ordinary tort law are not suited to deal with particular problems in the
nuclear field, the decision was made to adopt special nuclear third party liability and/or
compensation regimes at national and international levels. These regimes were designed tomaintain this balance in order to ensure adequate compensation for damage suffered by victims
in case of a nuclear incident, and at the same time to protect nuclear power plant investors andsuppliers from ruinous liability claims. Five basic principles underlie such regimes:

Strict liability
The operator of a nuclear installation is strictly liable for nuclear damage to third parties caused
by a nuclear incident occurring at its installation or during transport of nuclear substances toor from that installation. As a consequence, victims of such an accident do not bear the burdenof proof to demonstrate fault or negligence of the operator and shall only establish a causal link
between the nuclear incident and the damage suffered. This is an important deviation fromgeneral tort law principles, “which render a defendant liable for a plaintiff’s damage only where
it can be established that the defendant owed a duty of care to the plaintiff and breached that
duty through negligence or an intentional act or omission. Since it would be virtually impossible
for a claimant to have the necessary technical knowledge of what had taken place in a nuclear
installation or during the course of transport when the accident occurred, and it would be
extremely costly and time consuming to understand the origin of a nuclear incident, strict
liability (also called ‘absolute liability’ in some jurisdictions) provides a large measure of equity
that would not otherwise be available to victims.” 12

Exclusive liability (legal channelling)
The operator of a nuclear installation is exclusively liable for nuclear damage caused to third
parties by a nuclear incident occurring at its nuclear installation or during transport of nuclear
substances to or from such installation. As the only entity legally liable for nuclear damage is theoperator, the liability for damage suffered by third parties is therefore “channelled” directly tosuch operator. For third parties who suffered nuclear damage, “channelling liability to theoperator obviates the need to identify and pursue all defendants who are potentially responsible

11 Schwartz, J. (2010), “Liability and Compensation for Third Party Damage resulting from a Nuclear Incident”,
in NEA (ed.), International Nuclear Law: History, Evolution and Outlook, OECD Publishing, Paris, p. 307.
12 Ibid., p. 310.

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for causing the accident. This is a significant benefit when one considers the difficulty victims
would face trying to obtain the evidence necessary to establish cause after an accident has
occurred. In addition to rendering victims’ claims easier to establish, ‘channelling’ has the effectof sparing investors and suppliers of goods, services and technology from having to defend
complicated and expensive lawsuits to identify the liable entity, or from purchasing third party
liability insurance which, given the restricted market capacity for such coverage, could result inless coverage being available to respond to operators’ needs for same.” 13 In addition, no other law
than nuclear liability law applies in this situation (e.g. tort law), which brings greater legal
certainty for victims and different stakeholders involved in a nuclear incident.

Limitation of liability in amount
Unlike ordinary tort law rules that usually do not limit the compensation amounts to be paid,
certain original international nuclear liability conventions provided for a maximum amount ofliability to be borne by the operator of a nuclear installation. However, several states (e.g. Germany,
Japan and Switzerland) have adopted unlimited liability. The modernised nuclear liability
conventions provide for a minimum liability amount, thus allowing states to adopt unlimited
liability if they choose. 14

Compulsory financial security
To make sure that funds will be available to pay victims’ claims for compensation, nuclear
installation operators are required to financially secure their liability with insurance or any othertype of financial security (i.e. private insurance, mutuals, bank guarantees, operators’ poolingsystem, self-insurance, state guarantee).

Liability limited in timeTaking into account that health-related effects caused by the emission of ionising radiation may
not develop until long after the nuclear incident has occurred, the legal period during which anaction may be brought by victims is of significant importance. Progressively, certain nuclear
liability conventions have extended such period to the benefit of victims of a nuclear incident.15
Several states adopted nuclear liability legislation that limits the time for submission of claims
for damage caused by a nuclear incident to a period of ten years following such incident, withsome other states having extended such period to thirty years in case of loss of life or personal
injury. In most jurisdictions, there is usually a discovery rule as well, requiring claims to be filed
within two or three years of the discovery of the damage and of the identity of the liable nuclear
operator.

13 Ibid., p. 311.
14 Secretariat note: It is worth mentioning that the Paris Convention provided for a maximum amount (seeArticle 7 of the Paris Convention), but such limit has been removed in the Revised Paris Convention,
which provides a minimum amount (see Article 7 of the Revised Paris Convention). The Vienna
Conventions and the CSC establish minimum amounts (see Article V.1 of the Vienna Convention andthe Revised Vienna Convention; Article 4.1 of the CSC Annex).
15 Secretariat note: The Revised Paris Convention and the Revised Vienna Convention extended theprescription period for loss of life and personal injury claims from 10 to 30 years (see Article 8(a) of the
Revised Paris Convention and Article VI.1 (a) of the Revised Vienna Convention). Article 9 of the CSC
Annex provides for a general ten year prescription period (claims for loss of life and personal injury
included) and states that “[…] If, however, under the law of the Installation State the liability of theoperator is covered by insurance or other financial security or by State funds for a period longer thanten years, the law of the competent court may provide that rights of compensation against the operator
shall only be extinguished after a period which may be longer than ten years, but shall not be longer
than the period for which his liability is so covered under the law of the Installation State.”

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The third party nuclear liability conventions also provide two additional principles, whichwere elaborated to deal with the complexities raised by the potentially transboundary characterof nuclear damage and the management of cross-border compensation claims. 16

Unity of jurisdiction
In principle, jurisdiction over nuclear damage claims lies only with the courts of the state in whose
territory the nuclear incident has occurred. If the place where the incident occurred is not certain,
the courts of the state where the liable operator’s installation is located have jurisdiction.

Applicable law and non-discrimination
The court having jurisdiction will apply the convention(s) to which its state is a party and its
own national laws to claims for compensation of nuclear damage caused by a nuclear incident.
Those laws shall apply to all substantive and procedural matters, without any discrimination
based upon nationality, domicile or residence.
The following international nuclear liability conventions have been adopted, establishingsimilar nuclear liability regimes to deal with the risks associated with nuclear activities, andcontain the above basic principles, which are internationally accepted and usually transposed
into national legislation, whether the concerned state has or has not adhered to one of theconventions:•the Paris Convention, in force since 1 April 1968: There are 16 contracting parties to date(mostly Western Europe). The Paris Convention is supplemented by the Brussels
Supplementary Convention, which establishes a supplementary funding instrument (theso-called “three-tier compensation” system) for the 13 contracting parties. The 2004
Protocols to amend these Conventions were adopted to provide more funds to a larger
category of victims for a broader scope of damage. They entered into force on 1 January
2022;

•

the Vienna Convention, in force since 12 November 1977: There are 45 contracting parties
to date (mostly Central/Eastern Europe, Asia, South/Central America). 17 The Vienna
Convention was amended by the 1997 Protocol to Amend the Vienna Convention andthere are 16 contracting parties to date.18 Like the Revised Paris Convention, the Revised
Vienna Convention provides more funds to more victims for more types of damage; and•the CSC, in force since 15 April 2015: There are 11 contracting parties to date.19 The CSC
provides a global liability-compensation regime (i.e. provides basic principles andsupplementary funding based on a two-tier system).

16 Secretariat note: These principles apply between states that have treaty relations, i.e. have signed thesame international nuclear liability convention(s).
17 The Vienna Convention is open to all member states of the United Nations or of any of the specialised
agencies or of the IAEA by accession.
18 The Revised Vienna Convention is open for ratification, acceptance or approval by all states.
19 The CSC is open to ratification, acceptance of approval from a state which is a party to either the Vienna
Convention or the Paris Convention, or a state which declares that its national law complies with theprovisions of the CSC Annex, provided that, in the case of a state having on its territory a nuclear
installation as defined in the IAEA 1994 Convention on Nuclear Safety, it is a contracting state to that
Convention.

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In addition, the Joint Protocol constitutes a “bridge” between the Paris Convention and theVienna Conventions and ensures that, in relations between the contracting parties to theProtocol, there is a “mutual extension of the operator’s liability under one Convention to damage
suffered in territories of Parties to the other Convention.”20 There are 34 contracting parties to
the Joint Protocol to date.
The evolution of the nuclear liability regimes can be summarised in three main phases:•

The first phase corresponds to the development of nuclear energy (adoption of the Paris
Convention, the Brussels Supplementary Convention and the Vienna Convention);•

The second phase covered the post-Chernobyl nuclear accident21 era and resulted in acomprehensive review of nuclear liability regimes, including the then existing nuclear
liability instruments. It also resulted in the enhancement of the basic principles of nuclear
third party liability and compensation regimes, including: (i) higher amounts ofcompensation; (ii) a broader definition of nuclear damage to cover categories such as
damage to the environment and economic loss; and (iii) updated jurisdiction rules to granta state’s exclusive jurisdiction over claims arising from an incident occurring in its
exclusive economic zone. A longer prescription period was also provided for loss of life or
personal injury. Some new international legal instruments were adopted (the Joint
Protocol and the CSC), while the existing regimes were amended to incorporate theenhanced principles (the Revised Vienna Convention, the Revised Paris Convention, theRevised Brussels Supplementary Convention);•

The third phase corresponds to the post-Fukushima Daiichi Nuclear Power Plant accident
period. The following main lessons learnt can be identified in this regard: (i) relying on
the general principles of law in a situation where a nuclear incident occurs would not be
for the benefit of victims, as time is of the essence regarding compensation for
nuclear damage; (ii) the legal preparedness to deal with the consequences of a nuclear
incident is as important as the emergency preparedness and response; (iii) when anuclear incident occurs, the legal framework allowing for an efficient and adequate
indemnification of victims must be in place – there is no time to start enacting basic laws
once the incident has occurred; (iv) a country should adhere to one or several nuclear
liability convention(s) that would govern its relationship with its neighbouring countries
and their nationals who may be affected by a nuclear incident.

Following the Fukushima Daiichi accident, the IAEA member states identified a number ofactions that would promote the safe and secure use of nuclear energy. Specifically, the IAEA Action
Plan on Nuclear Safety22 encouraged the IAEA member states to work towards establishing a
global nuclear liability regime that addresses the concerns of all countries that might be affectedby a nuclear accident with a view to providing appropriate compensation for nuclear damage. The

20 Pursuant to Article II of the Joint Protocol, if there is a nuclear incident in a Paris Convention state,
victims in the Vienna Convention states will be compensated in the same way as victims in the Paris
Convention state and vice versa. It effectively extends the geographical scope of both Conventions andis open to states that are parties to the Vienna/Revised Vienna Conventions or the Paris/Revised Paris
Convention. For more information, see IAEA (2013), The 1988 Joint Protocol Relating to the Application of theVienna Convention and the Paris Convention – Explanatory Text, IAEA International Law Series No. 5, IAEA
Doc. STI/PUB/1593, IAEA, Vienna, Section 3.1.
21 The accident at the Chernobyl nuclear power plant in 1986 was the most severe in the history of thenuclear power industry. For more information on the Chernobyl accident, see Burns, S. (2022), “The
impact of the major nuclear power plant accidents on the international legal framework for nuclear
power”, in NEA (ed.), Principles and Practice of International Nuclear Law, OECD Publishing, Paris, pp. 87-89.
22 The IAEA Action Plan on Nuclear Safety was approved by the IAEA Board of Governors on 13 September 2011and endorsed by the IAEA General Conference during its 55th regular session on 22 September 2011. IAEA
(2011), “Draft IAEA Action Plan on Nuclear Safety”, Report by the Director General, IAEA Doc. GOV/2011/59GC(55)/14, endorsed by the IAEA General Conference in Resolution, “Measures to strengthen international
cooperation in nuclear, radiation, transport and waste safety”, IAEA Doc. No. GC(55)/RES/9 (22 Sept. 2011).

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plan also requested the IAEA International Nuclear Liability Experts Group (INLEX) 23 torecommend actions to facilitate achievement of such a global regime. In August 2012, INLEX
finalised its recommendations in this regard. 24
On 28 August 2013, a Joint Statement on Civil Liability for Nuclear Damage (Joint Statement) 25
was signed between the United States (US) and France. On 6 September 2013, a G20 Leaders’
Declaration was issued. 26 On 1 November 2013, a Franco-Russian Nuclear Power Declaration 27 wasadopted. All these initiatives encouraged multilateral co-operation towards achieving a global
nuclear liability regime and called for countries to have treaty relations by joining one or several
nuclear liability conventions.
In April 2014, the Steering Committee for Nuclear Energy held a policy debate on progress
towards a global nuclear liability regime, which stressed the importance of achieving greater
globalisation and harmonisation of nuclear liability regimes in order to ensure adequate andtimely compensation for damage to persons and property resulting from a nuclear incident and topromote consistent treatment of potential victims and operators worldwide. They encouraged NEA
member countries with nuclear power programmes and other consenting countries to adhere to oneof the enhanced nuclear liability regimes and to adopt consistent legislation if they have notalready done so.28 During the 59th IAEA General Conference in September 2015, the IAEA member
states adopted a resolution29 that: encourages member states to work towards theestablishment of a global nuclear liability regime; notes that the Paris Convention, the Vienna
Convention, the Brussels Supplementary Convention, the Joint Protocol and the CSC can provide
the basis for establishing a global regime based on the nuclear liability principles; stresses theimportance of having effective and coherent nuclear liability mechanisms in place at thenational and international levels; recognises that nuclear liability principles, including strict
liability, should apply to nuclear incidents; and notes that nuclear liability principles can benefit
from the enhancements relating to a broader definition of nuclear damage, expanded jurisdiction
and increased compensation, and from the best practices recommended by INLEX.
The Fukushima accident can therefore be regarded as a wake-up call for the international
community to stress the importance of legal preparedness. Japan was already prepared to deal
with the consequences of a nuclear incident before the Fukushima accident occurred: although
Japan was not party to any international nuclear liability conventions at the time of the accident,
its legislation provided a comprehensive legal framework compatible with the guiding
principles of the international nuclear liability regimes (i.e. the 1961 Japanese Act on

23 INLEX was established by the IAEA Director-General in September 2003 to: (a) explore and advise on
nuclear liability issues; (b) enhance global adherence by nuclear and non-nuclear states to an effective
nuclear liability regime; and (c) assist in the development and strengthening of the national nuclear
liability legal frameworks in IAEA member states. For more information on INLEX, see IAEA (n.d.)International Expert Group on Nuclear Liability (INLEX), www.iaea.org/about/organizationalstructure/offices-reporting-to-the-director-general/office-of-legal-affairs/international-expert-groupon-nuclear-liability-inlex (accessed 30 June 2023).
24 2012 “Recommendations on how to facilitate achievement of a global nuclear liability regime, as
requested by the IAEA Action Plan on Nuclear Safety”, available at: www.iaea.org/sites/default/files/17/11/actionplan-nuclear-liability.pdf (accessed 30 June 2023). At its 22nd meeting held on
6-8 September 2022, INLEX elaborated the “Statement of the International Expert Group on Nuclear
Liability (INLEX): Benefits of Joining the Global Nuclear Liability Regime”, available at: www.iaea.org/
sites/default/files/22/10/inlex-22nd-meeting0922.pdf (accessed 30 June 2023).
25 2013 “Joint Statement on Liability for Nuclear Damage” by France and the United States, available at:www.energy.gov/node/4813282 (accessed 30 June 2023).
26 “G20 Leaders’ Declaration”, Saint Petersburg Summit, 5-6 September 2013, available at: www.oecd.org/
g20/summits/saint-petersburg/Saint-Petersburg-Declaration.pdf (accessed 30 June 2023).
27 Franco-Russian Nuclear Power Declaration is provided in NEA (2013), Nuclear Law Bulletin, No. 92, OECD
Publishing, Paris, pp. 209-210.
28 For more information, see NEA (2016), Five Years after the Fukushima Daiichi Accident, OECD Publishing,Paris.
29 IAEA (2015), General Conference Resolution: “Measures to strengthen international cooperation in
nuclear, radiation, transport and waste safety”, IAEA Doc. GC(59)/RES/9, adopted on 17 Sept. 2015.

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Compensation for Nuclear Damage) 30 and allowed the Japanese government to take thenecessary actions immediately after the Fukushima accident to start indemnifying victims fornuclear damage quickly and efficiently.
The existence of a comprehensive legal framework related to nuclear liability is also necessary
to develop nuclear energy, as public acceptance implies that the public understands the liability
and compensation regime that will apply in case of a nuclear incident, whether at the national or
the international levels. Stakeholders involved in nuclear power programmes (operators,
investors, suppliers, etc.) require a clear and comprehensive legal framework that will ensure legal
certainty and will make it possible to carry out risk assessments and determine the financial
consequences. Nuclear insurers also require harmonisation of national legislation to allow thepooling system for insurance and reinsurance, and clear definitions to determine the insurance
coverage in case of an incident. Therefore, states (whether nuclear or not) are encouraged toinclude in their national legislation the internationally accepted nuclear liability principles and toadhere to at least one nuclear liability convention, with the aim of ensuring adequate andharmonised compensation to victims, facilitating international nuclear trade and ensuring similar
treatment of nuclear operators.

Insurance of nuclear risks: overview of nuclear insurance system
Mr Mark Tetley, insurance expert and lecturer at the NEA nuclear law educational programmes,
provided a detailed overview of the nuclear insurance system, the purpose of which is to ensure
the risk transfer – shifting the risk of loss (i.e. the financial impact of an event) from one person toanother. In the nuclear business, it is necessary to secure business continuity, which may require
the sharing or transfer of risk in different ways.
Insurance is fundamentally a contractual relationship between the person insured and an
insurer against payment of a premium. The insurer undertakes to indemnify the insured person
in case an insured event occurs. The main characteristic of this event is its fortuity (i.e. an
unknown event). Any insured event must be fortuitous and it must not be immediately predictable.
Insurance only provides protection in circumstances where the loss is accidental; policies do notcover the consequences of normal operation of a business, especially when the loss arises froman activity it has been specifically authorised to undertake. Such losses would be considered to be
inevitable and beyond the scope of insurance. In addition, the insured person must have an
insurable interest. The legal doctrine of insurable interest requires that the person to be coveredby insurance have a current financial interest, recognised in law, in the thing or event to be
insured.
In the context of a nuclear incident, there is a potentially large-scale unknown event thatneeds to be covered by insurance or a financial security in order to make sure that payment ofclaims for nuclear damage is swift, effective and equitable. There are several players in theinsurance industry, but essentially the financial risk is transferred to an insurer or a number of
insures (i.e. co-insurance) who re-transfer(s) part of the risk or the risk as a whole to a reinsurer(s),who might possibly seek to obtain insurance for its activities from another reinsurer(i.e. retrocession). In the case of a nuclear incident, this system of insurance/reinsurance/
retrocession needs to be contractually tight and effective to avoid any unnecessary delay incompensating victims.
There are two types of insurance available for nuclear power plants: on-site material damage
insurance (to insure the operator’s assets) and off-site third party liability insurance. Operators of
nuclear installations who are required by their national law to provide a compulsory financial
security to cover their nuclear third party liability in case of a nuclear incident have several options
to insure themselves (e.g. mutual insurance companies, captive insurance companies, selfinsurance, traditional insurer/reinsurer market, financial market, operators’ pooling system).
Nuclear third party liability insurance is for the most part provided by national nuclear
insurance pools, which were established to accompany the development of the civil nuclear

30 For more information on the Japan’s nuclear liability legal framework, see NEA (2012), Japan’s Compensation
System for Nuclear Damage: As Related to the TEPCO Fukushima Daiichi Nuclear Accident, OECD Publishing, Paris.

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industry and to remedy the lack of capacity of insurance companies to provide an adequate
solution by themselves. Pool members offer their capacity on a net retention basis, which is an
important feature that helps the members manage their worldwide capacity. The main objectiveof a pool is to provide insurance to their local operators, and if the capacity of the local pool is not
sufficient, it can usually get reinsurance from foreign pools. Pools have many advantages, such as:
considerable cover capacity; solid financial backing given the wide range of participants; theability of their members to manage major incidents; and their expertise and knowledge in the
nuclear field. 31 The pools operating system is provided in the following diagram:

Figure 1. Nuclear insurance pools: Operating system
Member 1

Insurance ofinstallations incountry B

Member 2
Pool

etc.

country B

Member 1

Member 1

Member 2

Member 2
Pool
Member 3

country A

reinsurance

Poolcountry C

Member 3

reinsurance

etc.

etc.
Insurance ofinstallations incountry A

Insurance ofinstallations incountry C

Source: Swiss Pool for the Insurance of Nuclear Risks, in Tetley, M.G (2017) “Insurance of Nuclear Risks”,
presented at the Third International Workshop on the Indemnification of Damage in the Event of a Nuclear
Accident, Bratislava, October 2017.

Another party that plays a key role in the whole process is the state. The state usuallyintervenes if the risk cannot be covered, for example in case of unlimited liability, events thatcannot be insured (e.g. war), or events that can only be insured partially (e.g. terrorism, whichis generally subject to sub-limits).
The insurance coverage of a nuclear operator may be created by mixing different types ofavailable financial securities (e.g. mix of open market insurance solutions, mutual insurance,
nuclear pools insurance, captive insurance and site monetary retention), based on considerationsof “risk appetite”, statutory obligations, costs, cover consistency, solvency, market spread andclaims handling efficiency. Nuclear insurance normally covers all the activities of the nuclear fuelcycle, including nuclear transport, with the exception of uranium mining and radioactive sources,
which require special arrangements and are usually covered by other types of insurance.
From the perspective of an insurer, the following prerequisites are needed for a nuclear
insurance of a nuclear installation to be put in place: (i) adherence to a nuclear third party liability

31 For more information on the nuclear pools operating system, see Reitsma, M.S. and M.G. Tetley, (2022),“Insurance of nuclear risks”, in NEA (ed.), Principles and Practice of International Nuclear Law, OECD Publishing,Paris, pp. 447-451.

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convention and/or acceptable domestic legislation in the nuclear field; (ii) technical risk
acceptability (technical conditions of a nuclear installation) and adequate regulatory control(i.e. existence of a local independent regulator); (iii) participation of a local insurer and freedom toreinsure externally; (iv) hard currency payment and exchange control freedom; and (v) acceptable
sovereign rating with no trade restrictions.
At the outset of the civil nuclear industry, the decision was made to adopt specific nuclear
liability conventions that had been drafted to accommodate the rise of the civil nuclear industry
in the 1950s, and the specific risks this new industrial sector brought. In exchange for having an
obligation of an absolute and strict liability, nuclear operators received a temporal and financial
limit to their liability that enabled them to approach the private insurance market to transfer therisks. The concept that an operator has a liability exclusively channelled to it, while restricted inmost dimensions, has permitted the involvement of private insurance in the development of thecivil nuclear industry. Nuclear site liability insurance policies are designed to follow the relevant
national nuclear legislation that establish the scope of the operators’ liability depending onwhether the operator’s country is party to one of the nuclear liability conventions, or has alegislation that adheres to the principles embodied in these conventions. In order for thechannelling principle to be fully applicable, all general insurance policies have radioactive
contamination exclusions, as nuclear liability is covered by specific nuclear insurance policies.
Regarding the relationship between the basic principles of the nuclear liability regimes andthose relating to insurance, the following issues may be emphasised:

Requirement for financial security
The legal imperative imposed on nuclear operators to provide financial cover is the incentive tobuy insurance.

Liability channelling
Taking into account that all nuclear liability is channelled to the site operator, there is aradioactive contamination exclusion clause in all insurance policies to ensure this channelling.
This allows the insurers to avoid accumulation of loss exposure that may be generated by theco-existence of different insurance policies. In addition, a general waiver of rights of recourse
granted to suppliers and contractors is usually provided (but this is not absolute).

Strict liability
Strict liability provides direct and rapid access to insurance funds and offers certainty of a
maximum exposure to insurers. Weakening this principle (e.g. by providing a statutory right ofrecourse against suppliers) may compromise this principle, make the insurance community
reluctant to provide cover because of the risk exposure and ultimately may have detrimental
effects on the quick and efficient compensation of victims.

Liability limited in time
This notion entails restricting the operator’s liability to a period of ten years (or 30 years for lossof life and personal injury provided in the revised nuclear liability conventions). However, theprivate insurance market may be reluctant to extended the period of indemnification beyond ten
years because of the causality issue (e.g. how can a case of cancer be determined to be due to anuclear accident more than ten years after the accident?).

Liability limited in amountA financial limit of liability provides a maximum cost to the operator for any nuclear incident
and allows nuclear insurers to have certainty as to the extent of their coverage.

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Clear definitions
Clear definitions of nuclear damage and other key terms give clarity to the scope of insurance
cover.

Jurisdiction clarity
The insurers’ capital is generally exposed in the country of the liable operator only. This also
provides more legal certainty and helps to attract the insurance market players.
Nowadays, the nuclear insurance industry faces many challenges, among them the coverageof terrorism, which is, unlike an act of war, not exempted from the scope of application of thenuclear liability conventions. Insurers generally charge an additional premium to cover terrorism.
With respect to new technologies development, insurers have to address cyber operational risks
where the absence of a liable entity may cause problems.
With regard to the enhanced requirements embodied in the 2004 Protocols, there is no moreissue for insurers to provide the maximum cover required under these conventions(i.e. EUR 700 million), but insurers might sometimes find it problematic to cover the extended
scope of nuclear damage on the whole (even though there are significant improvements,
especially regarding the cover of environmental damage), 32 and in general they may be reluctant
to provide cover for the extended prescription period of 30 years for loss of life and personal injury.
As a conclusion, there is a need for a comprehensive legal framework that includes animmediate, long term and secure claims handling system, both at the national and international
levels, to ensure continuity and consistency of compensation to victims. There is also a need toensure the consistency of the legal liability framework as a whole, including national legislation,
conventions, insurance policies and market practices.
The nuclear insurance market needs long-term stability and certainty. The current
insurance market can sustain a large-scale nuclear incident, and should ultimately provide thefull cover consistent with the scope of application of the revised nuclear liability conventions,because it is a private market that is constantly evolving to accommodate the needs of thenuclear industry. 33

Discussion session
Clarification was requested on why the availability of nuclear insurance cover is conditioned by
the existence of a cap to the nuclear liability of an operator, taking into account that suchinsurance cover will anyway be limited in amount due to the limited capacity available at thenuclear insurance market. It was explained that the insurance policy requires a financial
security limit, which corresponds to a determined value for each insured interest and represents
a key component in attracting capital in insurance.
Regarding the impact that the absence of radioactive contamination exclusion clauses inconventional insurance policies may have on the principle of legal channelling, it appeared thatthe main purpose for introducing such clauses was the need to control the exposure to risks incase of a nuclear incident. Therefore, it was decided to designate a single entity liable for nuclear
damage (i.e. the nuclear operator) so the insurers can avoid dealing with multiple claims fromdifferent sources and eventually protect themselves from the risk of bankruptcy. The existence ofradioactive contamination exclusion clauses in insurance contracts provides the insurance
market with certainty and helps attract capital to the industry.

32 See Article 1 (a)(vii) of the Revised Paris Convention.
33 For more information on the state of the nuclear liability insurance market today, see European
Commission, Directorate-General for Energy (2020), Study on the insurance, private and financial markets inthe field of nuclear third party liability: Final report, No. ENER/D2/2017-562, Publications Office of the EU,
Luxembourg.

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OPENING SESSION

Another question was raised relating to the challenges nuclear insurers may face whileassessing the technical risks of a nuclear installation in view of providing an insurance cover.
The technical assessment is one of the critical parts of the overall nuclear insurance risk
assessment. The technical state of a nuclear installation may directly impact certain limits in
the insurance cover and/or the premium, depending on the extent of the risk that insurers arewilling to accept. There is co-operation between nuclear insurance pools that enables insurers
to have access to surveys performed by nuclear engineers in charge of assessing the technicalstate of nuclear installations. It gives insurers a clear overview of the technical risks involved.
With regard to the exact amount of compensation paid to victims following the Fukushima
accident, it was highlighted that TEPCO (the operator liable) established a dedicated webpage
where updated information on the amount of compensation paid out is provided. 34 The nuclear
insurance cover was not triggered by TEPCO because earthquakes and tsunamis are non-insurable
risks in Japan. As a consequence, a state guarantee under a governmental indemnity agreement
was triggered.

Overview of responses to the questionnaire
The questionnaire was divided into ten sections, covering a wide variety of legal issues, ranging
from general information on the national legal regime of the responding country (e.g. theimplementation of the international nuclear liability conventions, or the adoption of thereciprocity principle) to more specific questions (e.g. the existence of alternative dispute
resolution mechanisms, or the existence of provisions regarding claims handling in the eventof a nuclear incident).
The questionnaire was structured as follows:

Table 1. Questionnaire sections
Section 1

National legal regime – General information

Section 2

Notification of an accident

Section 3

Evacuation process

Section 4

Determining the damage to be compensatedSection 5

Proving the causal link

Section 6

Identifying the liable entity

Section 7

Financial securities

Section 8

Claims handling

Section 9

Resolving disputes

Section 10

Amounts available

The questionnaire proposed an accident scenario, distinguishing between installation states(i.e. states within whose territory a nuclear power plant that caused a nuclear incident is situated)
and affected states (i.e. states other than the installation states, which have no nuclear power
plants and in which territories nuclear damage is suffered). The purpose of this distinction was tochannel the responses given by each country depending on whether they had nuclear power
plants in their territory. Taking into account that in spite of the proposed distinction, many
countries replied to both scenarios (i.e. as installation states, but also as affected states), responses
to the questionnaire were processed without taking into account this distinction.

34 For more information, see TEPCO (n.d.), “Compensation for Nuclear Damages”, www.tepco.co.jp/en/hd/
responsibility/revitalization/compensation-e.html (accessed 30 June 2023).

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Among the responding countries: 35•

Twelve countries are contracting parties to the Revised Paris Convention, and nine ofthem have also ratified the Revised Brussels Supplementary Convention;•

Eight countries are contracting parties to the Vienna Convention, and two of them arealso contracting parties to the Revised Vienna Convention;•

Five countries are contracting parties to the CSC, with one of them being also party to
the Vienna Convention and the Revised Vienna Convention;•

Fourteen countries are contracting parties to the Joint Protocol;•

Finally, five countries are non-convention states, which have not ratified any of theexisting international nuclear liability conventions. 36

Figure 2. Has your country ratified an international
nuclear liability instrument?

14
12
9

8
5

5

2
PC/RPCBSC/RBSC

VC

RVC

CSC

JP

None

Source: NEA.

Twenty-four responding countries said that they have adopted a specific nuclear liability
law in their domestic legislation, and more specifically:•

All countries having nuclear power plants in their territory (the “nuclear countries”)
confirmed the existence of such a law 37 in their national legal order;

35 The countries who replied to the questionnaire are: Australia, Austria, Belgium, Canada, China, Czechia,
Finland, France, Germany, Greece, Hungary, India, Ireland, Italy, Japan, Luxembourg, the Netherlands,
Nigeria, Philippines, Poland, Portugal, Romania, Slovak Republic, Slovenia, Sweden, Türkiye, the United
Kingdom, Ukraine, and the United States.
36 Secretariat note: Austria and Luxembourg both signed the 1960 Paris Convention and the 1963 Brussels
Supplementary Convention as well as the 1964 Additional Protocol the 1982 Protocol to amend thesetwo Conventions. Neither country has ratified any of these instruments.
37 Secretariat note: China is considered as being one of these countries. The Nuclear Safety Law enteredinto force in 2018 (available in NEA (2018), Nuclear Law Bulletin, No. 100, OECD Publishing, Paris, pp. 119138) provides in its Article 90 for strict and exclusive liability of the operator. Third party liability matters
are governed by two Replies of the State Council adopted in 1986 and 2007, which adopt the principles
laid down in the international nuclear liability conventions. For the English translation of both Replies,
see NEA (n.d.), China: Nuclear legislation, www.oecd-nea.org/jcms/pl_24008 (accessed 30 June 2023).

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OPENING SESSION•

Five non-nuclear countries responded that a nuclear liability law has not been adopted
in their national legislation. Among these countries, Greece, Portugal and Türkiye 38 have
ratified the Revised Paris Convention, while two other countries, Australia and Ireland,
are non-contracting states.

Figure 3. Has your country adopted a nuclear liability law?
NO

5

YES

24
0

5

10

15

20

25

30

Source: NEA.

In answering the question regarding the incorporation of an international instrument within
their national legal system (either via an implementing law, or through a direct application):•

Eighteen countries replied that an implementing law needs to be adopted at thenational level for the international instrument to apply;•

Six countries replied that in accordance with their national legislation, international
instruments apply directly in their national legal order;•

Three countries (i.e. the Netherlands, Ukraine and the United States) offered a morenuanced approach, according to which both methods are possible. In the Netherlands,
international law is directly applicable, but some aspects of such law may be subject toimplementing legislation. In the United States, some provisions of the CSC are directly
applicable (e.g. Article XIII on jurisdiction), while other provisions shall be construed
based on the relevant national legislation (e.g. the Price-Anderson Act). 39

Figure 4. Under your legal system, is your country required to havean implementation law or is an international instrument directly applicable?
2
3

Implementing law
Direct applicability
Both

6
18

N/A

Source: NEA.

38 Secretariat note: On 8 March 2022, a new Nuclear Regulatory Law No. 7381 (Official Gazette of 8 March
2022, no. 31772) entered into force in Türkiye. In addition to providing a regulatory framework fornuclear energy and ionising radiation activities, section five of the law addresses nuclear third party
liability matters (available in NEA (2022), Nuclear Law Bulletin, No. 108/109, OECD Publishing, Paris,
pp. 139-143).
39 Price-Anderson Act of 1957, 42 USC Section 2210 (Price-Anderson Act).

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OPENING SESSION

Finally, the majority of the responding countries (twenty-four in total) mentioned that they
have not signed any bilateral agreement including provisions on nuclear liability. Only four
countries (i.e. Finland, 40 France, 41 Germany 42 and Nigeria) effectively concluded such agreementswith certain countries.

Figure 5. Does your country have bilateral agreements withother states that include provisions on nuclear liability?

24

4
Yes

1
No

N/A

Source: NEA

40 Agreement with the Government of the Russian Federation and the Government of the Republic ofFinland for Co-operation in the Peaceful Uses of Atomic Energy, entered into force on 6 Apr. 2015 (FTS
32/2015). Agreement on Co-operation in the Field of Peaceful Uses of Atomic Energy Between the
Government of the Kingdom of Saudi Arabia and the Government of the Republic of Finland, enteredinto force on 3 June 2017 (FTS 48/2017).
41 Agreement between the Government of the French Republic and the Government of the RussianFederation on Third Party Liability for Nuclear Damage Caused in Connection with Deliveries from the
French Republic for Nuclear Installations in the Russian Federation of 20 June 2000.
42 Agreement between the Federal Republic of Germany and the Swiss Confederation on Third Party
Liability in the Field of Nuclear Energy of 22 October 1986 (Federal Law Gazette [Bundesgesetzblatt] [BGBl.]
II 1988, p. 598). Agreement between the Government of the Federal Republic of Germany and theGovernment of the Russian Federation on nuclear liability in connection with deliveries from theFederal Republic of Germany for nuclear facilities in the Russian Federation of 23 June 1998 (BGBl. II
1998, p. 2365).

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SESSION 1. NOTIFICATION OF AN ACCIDENT AND EVACUATION PROCESS

Session 1
Notification of an accident and evacuation process

Introduction to Sub-session 1: Notification of an accident
Ms Florence Touïtou-Durand, Head of Legal Affairs, French Alternative Energies and Atomic
Energy Commission (CEA), member of the NLC Bureau and Chair of Session 1, mentioned that
the Chernobyl and Fukushima accidents demonstrated that major nuclear and radiologicalaccidents can have immediate as well as long-term consequences not only in the territory of
the installation state, but also within the territories of the affected states. The Chernobyl
accident had radiological consequences of an unprecedented scale, far beyond the territories of
the USSR’s neighbouring countries. After the accident, discussions were initiated within the
IAEA for the purpose of strengthening international co-operation in the development and useof nuclear energy. The intention was to make the states bear the obligation in the event of a
nuclear incident to notify, as quickly as possible, other states for which there is a risk of harmful
radiological consequences.
The notification system first aims at minimising the radiological consequences of a nuclear
incident in the states that could be affected. It also aims at developing international
co-operation and providing assistance and robust emergency responses, which help enhance
the public trust in the peaceful use of nuclear energy. Among the current issues in the area of
notification of a nuclear incident, the following may be highlighted: the necessity to ensure thedissemination of information in a timely, accurate and reliable manner taking into account the
new information technologies and means of communication; establishing a proper mechanism
for dissemination of information on the outset of a nuclear incident, which constitutes animportant driver for the simplification and efficiency of compensation of nuclear damage,especially regarding the basis under which the preventive measures may be decided andundertaken. What is the purpose of the notification process? What kind of events or occurrences
should the public be notified of? To whom should the notification be addressed? What kind of
information should be provided? How should this information be provided? These were someof the questions addressed in this session.

Notification of an accident: International legal framework
Mr Andrea Gioia, Senior Legal Officer at the Office of Legal Affairs, IAEA, provided an overview
of the international legal framework applicable to the notification of a nuclear accident. This
framework is composed of binding international legal instruments, but also of non-binding
instruments that often complement the binding ones and help states comply with theirinternational obligations in this field. The most important international legal instrument in thearea of notification of nuclear incidents is the 1986 Convention on Early Notification of a Nuclear
Accident (the “Early Notification Convention”) 43 adopted in the aftermath of the Chernobyl
accident. This Convention establishes a notification system for a nuclear accident from whicha release of radioactive material occurs or is likely to occur, and which has resulted or may
result in an international transboundary release that could be of radiological safety significancefor another state. The Early Notification Convention was adopted together with its “twin”
43 Convention on Early Notification of a Nuclear Accident (1986), IAEA Doc. INFCIRC/335, 1439 UNTS 276,
entered into force 27 Oct. 1986 (Early Notification Convention).

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SESSION 1. NOTIFICATION OF AN ACCIDENT AND EVACUATION PROCESS

convention – the Convention on Assistance in the Case of a Nuclear Accident or Radiological
Emergency (the “Assistance Convention”), 44 which sets out an international framework for
co-operation among its contracting states and with the IAEA to facilitate prompt assistance andsupport in the event of nuclear accidents or radiological emergencies. These two Conventions
constitute the main international legal instruments for emergency preparedness and responsein the event of a nuclear accident, and aim at strengthening the international response to anuclear accident by providing a mechanism for rapid information exchange.
The scope of application of the Early Notification Convention (Article 1 of the Convention)
covers any accident involving the following facilities or activities:•

any nuclear reactor wherever located;•

any nuclear fuel cycle facility;•

any radioactive waste management facility;•

the transport and storage of nuclear fuels or radioactive wastes;•

the manufacture, use, storage, disposal and transport of radioisotopes for agricultural,industrial, medical and related scientific and research purposes; and•the use of radioisotopes for power generation in space objects,

from which a release of radioactive material occurs, or is likely to occur, and which has resulted,
or may result, in an international transboundary release that could be of radiological safetysignificance for another state. It is worth noting that the Early Notification Convention is meant
to cover only releases, or the likelihood of such releases, that could have transboundary effects.
In the event of such an accident involving facilities or activities of a state party to the Early
Notification Convention, or of persons or legal entities under its jurisdiction or control, thatstate party must, in accordance with Article 2 of the Convention: (a) forthwith notify, directly or
through the IAEA, the states that are or may be physically affected, and the IAEA, of the accident,
its nature, time of occurrence and exact location; (b) promptly provide, directly or through the
IAEA, to the same states, and to the IAEA, specific information relevant to minimising theradiological consequences in those states. Regarding the information to be provided, Article 5of the Convention specifies that the following shall be provided:•

time, exact location and nature of the accident;•

facility or activity involved;•

assumed or established cause and foreseeable development of the accident relevant for
the transboundary release;•general characteristics of the radioactive release;•current and forecast meteorological and hydrological conditions relevant for forecasting
the transboundary release;•results of environmental monitoring relevant to the transboundary release;•off-site protective measures taken or planned;•

predicted behaviour over time of the radioactive release,taking into account that such information may be used without restriction, except when provided
in confidence by the notifying party. In addition, Article 3 of the Convention provides a nonbinding commitment (i.e. on a voluntary basis) of a state party which stipulates that “with a view
to minimizing the radiological consequences, states parties may notify in the event of nuclear
accidents other than those specified in Article 1.” At the time when the Convention was adopted,
this provision was mainly inserted in the Convention to cover, in particular, activities and facilities

44 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986), IAEA Doc.
INFCIRC/336, 1457 UNTS 134, entered into force 26 Feb. 1987 (Assistance Convention).

30

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SESSION 1. NOTIFICATION OF AN ACCIDENT AND EVACUATION PROCESS

relating to nuclear weapons and nuclear tests. Article 3 may have a broader application dependingon each state party’s decision (e.g. Japan notified the IAEA on the Fukushima accident even though
the accident did not have any transboundary effects).
With regard to the process of exchange of information, each state party is requested inaccordance with Article 7 of the Convention to inform the IAEA and other states parties (directlyor through the IAEA) about its competent authorities and points of contact responsible for issuing
and receiving the notification and information referred to in Article 2 of the Convention. The IAEA
has to maintain an up-to-date list of such authorities and points of contact, as well as the pointsof contact of relevant intergovernmental organisations. Since 2001, there have been regularmeetings of these points of contact because, unlike other conventions within the auspices of the
IAEA, the Early Notification Convention does not have a regular peer review mechanism.
Other functions of the IAEA are underlined in Article 4 of the Convention: it has to forthwith
inform states parties, IAEA member states, other states that may be affected and relevantintergovernmental organisations of a notification received pursuant to Article 2 (a) of theConvention; and promptly provide any state party, member state or relevant intergovernmentalorganisation, upon request, with the information received pursuant to Article 2(b) of theConvention. The practice has gone beyond what is stipulated in the Convention regarding therole of the IAEA, as the 2011 IAEA Action Plan on Nuclear Safety has entrusted the Agency with
an important new function: “to provide [IAEA] Member States, international organizations andthe general public with timely, clear, factually correct, objective and easily understandable
information during a nuclear emergency on its potential consequences, including analysis ofavailable information and prognosis of possible scenarios based on evidence, scientificknowledge and the capabilities of Member States.” 45
The Early Notification Convention is part of a wider international legal framework for
emergency preparedness and response (EPR), which comprises:•

The Convention on Assistance in the Event of a Nuclear Accident or Radiological
Emergency;•

EPR provisions in the Convention on Nuclear Safety (Article 16) 46 and in the Joint
Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive
Waste Management (Article 25); 47•

Bilateral agreements between neighbouring states;•

Non-binding instruments, such as a number of safety standards; and•Operational arrangements and mechanisms.

45 IAEA (2011), “Draft IAEA Action Plan on Nuclear Safety”, supra, note 22.
46 Convention on Nuclear Safety (1994), IAEA Doc. INFCIRC/449, 1963 UNTS 293, entered into force 24 Oct.
1996 (CNS).
47 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste
Management (1997), IAEA Doc. INFCIRC/546, 2153 UNTS 357, entered into force 18 June 2001 (Joint
Convention).

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SESSION 1. NOTIFICATION OF AN ACCIDENT AND EVACUATION PROCESSThe IAEA EPR system is summarised in the following diagram:

Figure 6. IAEA ERP system

Source: IAEA.

Among the IAEA Safety Standards, the most important are:•Preparedness and Response for a Nuclear or Radiological Emergency (GSR Part 7): among
the general requirements, Requirement 2 provides, inter alia, for the adoption of legislationand the establishment of regulations “for effectively governing the provision of prompt
and adequate compensation for victims for damage due to a nuclear or radiologicalemergency”;•

Arrangements for Preparedness for a Nuclear or radiological Emergency (GS-G-2.1);•

Criteria for Use in preparedness and Response for a Nuclear or Radiological Emergency(GSG-2).

The IAEA Operational Arrangements that directly relate to notification of a nuclear accident
are:•

The Operations Manual for Incident and Emergency Communication (IEComm): It
provides detailed information and communication details, including information fordeveloping and implementing practical operational procedures in an incident/emergency;•

The IAEA Response and Assistance Network (RANET): It establishes provisions on
facilitation and co-ordination of assistance upon request;•

The Joint Radiation Emergency Management Plan of the International Organizations(JPLAN): It governs co-ordination of inter-agency response.

Finally, the IAEA Incident and Emergency Centre (IEC), established in 2005, implements all
IAEA functions related to the EPR.

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Notification of an accident: A practical approach
Commissioner Stephen G. Burns, US Nuclear Regulatory Commission, provided a practicalperspective of the notification of an accident in the United States. Within the US government,
there are many organisations that are in charge of responsive measures to nuclear incidents.
The US Nuclear Regulatory Commission (NRC) is responsible for co-ordinating the response toincidents at commercial nuclear power plants, while the US Federal Emergency Management
Agency (FEMA), under the Department of Homeland Security, would co-ordinate the overall
federal response to incidents with off-site consequences. State and local governments would
have primary responsibilities for determining and implementing such measures and notifying
the public. In the event of a transboundary nuclear incident affecting another country, the US
has bilateral agreements with neighbouring countries in the area of notification which containprovisions on prompt notification of events consistent with Article 9 of the Early Notification
Convention.
For nuclear incidents at commercial nuclear power plants involving another country, the
NRC is designated as a National Competent Authority under the Early Notification Convention,and is therefore in charge of co-ordinating the entire notification process to the IAEA. The US
Department of Energy (DOE) would be primarily responsible for national research laboratories
and other DOE nuclear facilities (such as enrichment facilities), and would also be considered
as a National Competent Authority. At the same time, radioactive sources are normallyregulated by the NRC or one of the NRC “agreement states” (i.e. individual state governmentsthat have been delegated regulatory authority under the federal Atomic Energy Act of 1954, 48 as
amended). However, orphan or banned radioactive sources would be under the responsibility of
the Environmental Protection Agency (EPA), which would be considered as a National
Competent Authority. The Department of State would lead communications to the highest levelof foreign governments. 49
Principles and guidance for emergencies are defined in the NRC’s Incident Response
Program (Management Directive 8.2). 50 A more detailed desk procedure guides the NRC
emergency operations center international liaison desk officer.
Regarding the currently existing notification challenges, which did not exist at the time of theThree Mile Island 51 or Chernobyl accidents, the possibility of instantaneous communication via
social media may significantly affect the notification process. As an example, several pictures
taken at the onset of a fire caused in 2015 by a failed transformer at the Indian Point nuclear power
plant near New York City and resulting in the shutdown of a reactor, were posted online on social
media before the competent authorities could learn about the incident and caused panic within
the public. 52 A similar situation with an immediate transmission of information via social media
occurred with the Leningrad nuclear power plant steam leak incident in Russia in 2015. 53

48 Atomic Energy Act of 1954, as amended, 42 USC 2011 et seq.
49 For more information on the tasks and responsibilities of the authorities involved, see FEMA (2023),“Nuclear/Radiological Incident Annex to the Response and Recovery Federal Interagency OperationalPlan”.
50 NRC (2023), “NRC Incident Response Program”, Management Directive 8.2, DT-23-10.
51 Secretariat note: The Three Mile Island Unit 2 reactor partially melted down on 28 March 1979. This was
the most serious accident in the US commercial nuclear power plant operating history, although its
small radioactive releases had no detectable health effects on plant workers or the public. For more
information on the Three Mile Island accident, see Burns, S. (2022), “The impact of the major nuclear
power plant accidents on the international legal framework for nuclear power”, in NEA (ed.), Principles
and Practice of International Nuclear Law, OECD Publishing, Paris, p. 83.
52 For more information regarding this incident, see DiSavino, S. and L. Lambert, “Transformer fire causes
shut-down of nuclear reactor north of New York City”, Reuters (10 May 2015), available at:www.reuters.com/article/us-usa-nuclearplant-incident/transformer-fire-causes-shut-down-ofnuclear-reactor-north-of-new-york-city-idUSKBN0NU
0RN20150510 (accessed 30 June 2023).
53 For more information on this event, see Stewart, W. “Russians flee Chernobyl-style plant over fears ofradioactive leak”, Express (21 Dec. 2015), available at: www.express.co.uk/news/world/628592/ChaosRussians-flee-Chernobyl-style-plant-radioactive-leak (accessed 30 June 2023).

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Today, there is better communication thanks to several methods that may be used to convey
information, but ensuring that communication is accurate and complete constitutes a real
challenge. The notification system provided in the Early Notification Convention adopted in 1986
may be challenged, especially with regard to the availability of information, due to significant
strides in technological advances in communication since the Convention was originally adopted.
However, the Early Notification Convention remains adaptable to the new means ofcommunication and still has relevance despite significant improvements in communication
technologies over the past decades. With regard to the Assistance Convention, even though it was
designed as a vehicle to request assistance for major accidents (e.g. severe radiation exposure), it
might be more practically and frequently used for smaller radiological incidents. The UnitedStates has not itself requested assistance through this Convention, but has offered assistance on
several occasions.
In conclusion, the spirit of the notification and emergency response conventions is still
relevant today, but the methods by which the information is shared must evolve along withtechnological progress. Awareness of challenges regarding information availability through social
media and other means should be constantly assessed. Effective co-ordination at national andinternational levels is key to the transmission of reliable, accurate, and timely information.

Discussion session
Concerning the need to amend the Early Notification Convention to take into account newcommunication technologies and to reflect the recently expanded responsibilities of the IAEA in
the area of notification, it was noted that the Early Notification Convention does not specify themeans whereby the state party has to notify, meaning the Convention can be considered flexible
in this respect. There are also a number of supplementary operational agreements to theConvention, such as the IEComm, which includes a chapter on communications with the IAEA
Incident and Emergency Centre outlining various means of communication that may be used(including the internet). The current version of the IEComm 54 specifies that electronic mail,facsimile and telephone represent both primary and routine emergency communication channels.
A protected IAEA website called USIE – Unified System for Information Exchange in Incidents andEmergencies 55 - is continuously available as a primary channel for communication. Therefore,
notification and request for assistance forms established by the Early Notification Convention canbe easily transmitted to the IAEA via USIE and then to the concerned regulators. Basically, an
incident could be communicated to the IAEA IEC via any means of communication, and the IEC
would come back to the person who communicated this information to clarify all the details.
With regard to the existence of any exact parameters for notification (e.g. parameters
identified at the time of construction of a nuclear power plant that might lead to an incident) in
the Early Notification Convention, it was noted that even though the Convention contains a listof details which are to be notified, it is up to the state party that notifies to interpret its
obligations under the Convention and determine what it has to notify, and to what extent.

Overview of responses to the questionnaire
Multilateral and Bilateral Agreements in the Area of Notification for Nuclear Accidents
with Transboundary Effects
All the responding countries informed that they are parties to the Convention on Early Notification.

54 IAEA (2020), Operations Manual for Incident and Emergency Communication, IAEA, Vienna.
55 For more information on USIE, see IAEA (2015), Unified System for Information Exchange in Incidents
and Emergencies, https://iec.iaea.org/usie/actual/LandingPage.aspx (accessed 30 June 2023).

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SESSION 1. NOTIFICATION OF AN ACCIDENT AND EVACUATION PROCESS

Figure 7. Is your country party to the 1986 Convention on Early Notificationof a Nuclear Accident?
NO

0

YES

29

0

5

10

15

20

25

30

35

Source: NEA.

The majority of the responding countries reported that they concluded bilateral agreementswith their neighbouring countries in the area of notification of nuclear accidents withtransboundary effects. Examples:•

Canada: On 20 February 2014, the Canadian Department of Health and the US DOE signeda Statement of Intent regarding “Nuclear and Radiological Emergency Management andIncident Response Capabilities”;•

Germany: Bilateral agreements on the exchange of information on nuclear installations
located in border regions were concluded with eight neighbouring countries. Joint
commissions and expert groups have been set up with Austria, Belgium, Czechia, France,
the Netherlands and Switzerland; 56•

Hungary: Bilateral agreements were concluded with Austria, Croatia, Czechia, Germany,
Romania, Serbia, the Slovak Republic, Slovenia, and Ukraine. 57

It is worth mentioning that Luxembourg concluded bilateral agreements on informationexchange in case of incident with radiological effects with Belgium and France. 58
At the EU level, the European Community Urgent Radiological Information Exchange(ECURIE) 59 has been set up to facilitate early notification and information exchange in the eventof a radiological or nuclear emergency. All countries that are members of the European Union (“EUmember states”) as well as Switzerland, Norway, Montenegro, the Republic of North Macedonia
and the United Kingdom participate in the ECURIE system. They must promptly notify the EC ifthey decide to take measures to protect their population in the event of an emergency. The EC
must then make this notification available to all other member states. In addition, Nordic
countries, i.e. Denmark, Finland, Iceland, Norway and Sweden, have jointly established the
NORDIC manual (NORMAN) for co-operation between their respective regulators in response to

56 For more information, see Chapter 17(iv) “Consultation with Neighbouring Countries” in: Federal Ministry
for the Environment, Nature Conservation and Nuclear Safety (BMU) (2019), “Report by the Federal
Government for the Eighth Review Meeting of the Convention on Nuclear Safety in March/April 2020”.
57 For more information on the bilateral agreements signed by Hungary in this field, see Hungarian Atomic
Energy Authority (n.d.), “International Relations”, www.oah.hu/web/v3/HAEAportal.nsf/web?open
agent&menu=03&submenu=3_6 (accessed 31 Aug. 2023).
58 See, for example, the Law of 27 April 2006 concerning the approbation of the Agreement between thegovernment of the Grand Duchy of Luxembourg and the government of the Kingdom of Belgium
concerning the information exchange in case of an incident or accident which might have radiologicalconsequences, 2006 (Official Journal of the Grand Duchy of Luxembourg [Mémorial A] no. 80/2006).
59 For more information on ECURIE, see Council Decision 87/600/Euratom of 14 December 1987 on
Community arrangements for the early exchange of information in the event of a radiologicalemergency, Official Journal of the European Union (OJ) L 371/76 (30 Dec. 1987) and Agreement between theEuropean Atomic Energy Community (Euratom) and non-member States of the European Union on theparticipation of the latter in the Community arrangements for the early exchange of information in theevent of radiological emergency (Ecurie) in Official Journal of the European Union (OJ) C 102 (29 Apr. 2003).

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SESSION 1. NOTIFICATION OF AN ACCIDENT AND EVACUATION PROCESS

and preparedness for nuclear and radiological emergencies and incidents. The manual describes
practical arrangements regarding communication and information exchange to fulfil theobligations provided in the bilateral agreements between the Nordic countries. Thesearrangements also apply to a response to events or threats of malicious use of radioactive material
and threats or malevolent acts concerning nuclear facilities.
In total, seven countries declared that they have not concluded any bilateral agreements inthe area of notification for nuclear accidents with transboundary effects. Among them, there
are countries with nuclear power plants (China, India, Japan), as well as countries with nonuclear power plants (e.g. Australia, Ireland, the Philippines, Portugal).

Figure 8. Does your country have bilateral agreements in the area of notificationthat would apply in case a nuclear accident has transboundary effects?
YES

21

NO

7

N/A

1
0

5

10

15

20

25

Source: NEA.

Notification System and/or Emergency Preparedness Response Scheme
All 29 responding countries confirmed that they have an emergency preparedness response
scheme in place. As a general rule, each country structures such response scheme on the basisof its own internal territorial and administrative organisation, relying on a multitude of entities
and authorities. Therefore, the emergency response plans set out by each country vary. The
responses received may be illustrated as follows:a)Authorities in charge of initial assessment and continuous evaluation of the emergency
situation. Examples:•

Austria: The Federal Ministry of Agriculture and Forestry, Environment and Water
Management is in charge of evaluating the consequences of radiological and nuclear
emergencies and monitoring the environmental impact;•

Germany: The Federal Radiological Situation Centre (RLZ) at the Federal Ministry for theEnvironment, Nature Conservation and Nuclear Safety (now: The Federal Ministry for theEnvironment, Nature Conservation, Nuclear Safety and Consumer Protection)
co-ordinates the emergency response within the Federal government and with the Länder
as well as internationally. The tasks of the RLZ consist of the recording, presentation andassessment of the radiological situation in the area of communication and co-ordination(identification of the adequacy of the implementation of protective measures, informationof the population, and preparation of recommendations for action). 60b) Mandatory close co-operation between local, regional and central authorities within the
country. To achieve this, a clear description of the duties assumed by all relevantorganisations and authorities is necessary. Examples:

60 For more information, see Gesetz zum Schutz vor der schädlichen Wirkung ionisierender Strahlung(Strahlenschutzgesetz – StrlSchG) [Act to protect against the harmful effects of ionising radiation(Radiation Protection Act - StrlSchG)] of 27 June 2017, as amended (BGBl. I, p. 1966).

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SESSION 1. NOTIFICATION OF AN ACCIDENT AND EVACUATION PROCESSc)•Australia: The Australian Emergency Management Arrangements establishes therelationships and co-ordination arrangements between the Australian government andthe states and territories in the event of an emergency. The Australian government has
an overarching Australian Government Disaster Response Plan (COMDISPLAN), which
complements local and regional disaster response plans for Australian states andterritories. 61 Emergency Management Australia (EMA) is the Australian government’s leadagency for disaster and emergency management. It centralises emergency response
across the Australian Commonwealth, states and territories. EMA also incorporates theAustralian Government Crisis Coordination Centre, which has capacity to co-ordinate
responses to all-hazards on a 24/7 basis; 62•

Canada: In case of radiological emergencies in nuclear installations in its territory,
provincial or territorial emergency management organisations and the Canadian Nuclear
Safety Commission (CNSC) (for licensed nuclear facilities), or the Department of National
Defence/Canadian Forces (DND/CF) (for nuclear powered vessels), will normally be thefirst government agencies to receive the initial report. Based on its assessment of theinformation, Health Canada, in consultation with appropriate Federal Nuclear Emergency
Plan (FNEP) partners (including CNSC or DND/CF, as appropriate) will assess the need forchanging the FNEP response level, as required, and notify federal FNEP partners
accordingly. 63 Public Safety Canada (PS) and the Government Operations Centre (GOC) willhandle all other notifications under the Federal Emergency Response Plan (FERP);•

Hungary: The Government Decree 167/2010. (V.11.) Korm. on national nuclear emergency
preparedness and response provides a list of stakeholders that shall be involved in the
Nuclear Emergency Response Plan (NERP), including a wide range of national, regional andlocal authorities along with technical entities each providing their expertise in theirrelevant field of competence (e.g. government co-ordination body, National Public Healthand Medical Officer Service, national water damage response middle direction
organisation, Paks Nuclear Power Plant and Hungarian Academy of Science). 64

Co-ordination of national authorities within the framework of international arrangements.
Examples:•Belgium and Luxembourg: The exchange of liaison officers is a practice followed in theframework of bilateral arrangements in terms of emergency response scheme; 65•

Poland: According to Article 77(2)(2) of the Act of Parliament of 29 November 2000,
national contact points established by the President of the National Atomic Energy
Agency will communicate any information on nuclear or radiological emergencies inthe territory of Poland to the IAEA and the EC; 66

61 See Australian Government (2020), COMDISPLAN 2020, www.homeaffairs.gov.au/emergency/files/plandisaster-response.pdf (accessed 31 Aug. 2023).
62 For more information, see Australian Government (n.d.), “Emergency management”, www.homeaffairs.gov.au/about-us/our-portfolios/emergency-management/about-emergency-management (accessed 31
Aug. 2023).
63 Government of Canada (2014), Federal Nuclear Emergency Plan Part 1: Master Plan, www.canada.ca/
en/health-canada/services/publications/health-risks-safety/federal-nuclear-emergency-master-planpart-1.html#a44 (accessed 31 Aug. 2023).
64 See Section 18 of the Government Decree No. 167/2010. (V. 11.) Korm. on National Nuclear Emergency
Preparedness and Response.
65 See Article 9 of the Agreement between the government of the Grand Duchy of Luxembourg and thegovernment of the Kingdom of Belgium concerning the information exchange in case of an incident or
accident which might have radiological consequences, 2006 (Official Journal of the Grand Duchy of
Luxembourg [Mémorial A] n° 80/2006).
66 Act of 29 November 2000 on Atomic Energy, 2000 (Journal of the Laws of the Republic of Poland of 2001,
No. 3, Item 18 and No. 100, Item 105) (Act of 29 November 2000 on Atomic Energy).

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SESSION 1. NOTIFICATION OF AN ACCIDENT AND EVACUATION PROCESS•

United States: For incidents affecting another country (e.g. Canada or Mexico), the US
Department of State would lead the notification of that country and the IAEA in
accordance with the Convention on Early Notification, and negotiate co-operative crossborder activities. 67d) Designation of the authority to which the nuclear accident will have to be notified.
Examples:e)•Austria: The Federal Alarm Centre at the Austrian Federal Ministry of the Interior
together with the Division on Radiation Protection in the Austrian Ministry ofAgriculture and Forestry, Environment and Water Management have been designatedas contact points for information exchange with regard to the IAEA or the ECURIE;•

Germany: The operator of the nuclear installation where the nuclear accident would
occur shall alert in parallel RLZ, GMLZ, supervisory authorities at a Land’s level, by thecompetent civil protection authority, taking into account the criteria for alerting thedisaster control authority by the operators of nuclear facilities set out by theCommission on Radiological Protection (SSK) and Reactor Safety Commission (RSK). 68
The notification of the RLZ at the Federal Ministry for the Environment, Nature
Conservation and Nuclear Safety (now: The Federal Ministry for the Environment,
Nature Conservation, Nuclear Safety and Consumer Protection) is carried out by thereporting office of the Land via the GMLZ since RLZ is not staffed 24/7. These redundantalerting channels are intentional;•

Slovak Republic: The Nuclear Regulatory Authority of the Slovak Republic is the entity towhich the licence holder will have to report any type of nuclear accident in the
installation. 69

Operational centralisation of the response scheme. Examples:•

France: The Prime Minister ensures, in liaison with the President of the Republic, politicalcontrol and strategic direction of crisis management operations through theestablishment of an Interministerial Crisis Unit (Cellule interministérielle de crise, or CIC),
which brings together all the relevant ministries, as well as the competent nuclear safety
authority (civil or defense), experts in the nuclear field and representatives of the operator.
In addition, an Interministerial Committee for Nuclear and Radiological Crises (Comité
interministériel aux crises nucléaires ou radiologiques) may be established, with theparticipation of various ministries, administrative authorities, and nuclear operators. 70
This Committee is responsible for proposing measures to be taken to the Prime Minister;•

Luxembourg: Execution of the emergency intervention plan in the case of a nuclear
accident falls within the competence of the Prime Minister and Minister of State, theMinister for Home Affairs and the Minister of Health. A crisis cell will be instituted thatwould initiate, co-ordinate and monitor the execution of all the measures intended todeal with the crisis and its effects. It is composed of high-level representatives from therelevant ministries and administration, including the head of the Radioprotection
Division. 71

67 FEMA (2023), supra note 49, p.31.
68 Federal Ministry for the Environment, Nature Conservation, Nuclear Safety and Consumer Protection(2013), “Criteria for alerting the disaster control authority by the operators of nuclear facilities” (RSK/SSK
2013, BAnz AT of 9 Oct. 2014 B1).
69 See Article 27(4) of the Act No. 541/2004 on Peaceful Use of Nuclear Energy and on the Amendment andSupplementing of Certain Acts, as amended.
70 Interministerial Directive of 7 April 2005 on the action of the public authorities in case of an event
causing a radiological emergency (Official Journal of the French Republic [JORF] of 10 Apr. 2005, p. 5).
71 Government of the Grand Duchy of Luxembourg (2021), Emergency Response Plan in the event of a nuclear
accident.

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SESSION 1. NOTIFICATION OF AN ACCIDENT AND EVACUATION PROCESSf)g)

An important role is borne by the nuclear operator of the nuclear installation where thehypothetical nuclear accident occurs. Examples:•

Czechia: The Act No. 263/2016 of Coll. of 14th July 2016 provides for an obligation of theoperator liable to notify any emergency occurring at its nuclear installation to a wide
range of stakeholders (e.g. the State Office for Nuclear Safety, local authorities, warning
the affected general public and ensuring the dissemination of the emergency
information through the appropriate media); 72•

Slovenia: The operator of a nuclear power plant or the licensee of radioactive sources
has to immediately inform the police, the citizens, the Notification Centre of the
Republic of Slovenia (CORS) and the Slovenian Nuclear Safety Administration (SNSA). 73

A critical aspect developed in the emergency response strategy concerns the recovery
process and post-accident management (i.e. returning from an emergency situation to acontrolled and stable status for the nuclear installation, the economic activities and thesocial life in the concerned areas). Examples:•

Canada: The FNEP is developed in accordance with the principle of preparation for thetransition from an emergency situation to recovery. It provides that “[r]esponsibility forrecovery is largely within provincial/territorial jurisdiction. The decision to transition torecovery will be taken by these authorities in the case of an emergency occurring in ornear Canada, and by the federal authorities in the event of a far-field emergency. SomeFNEP partners and FNEP Designated Officials may be involved in support of restoration
efforts of the affected areas”; 74•

France: The National Response Plan for Major Nuclear or Radiological Accidents contains
a strategy for preparing for post-accident management after the recovery period. The
objectives of this strategy are: (i) to protect people from the dangers of ionising radiation;(ii) to provide assistance to people affected by the consequences of the accident; and (iii) toreclaim areas whose economic and social fabric were affected. 75

Figure 9. Does your country have a notification system and/or
an emergency preparedness and response scheme?
NO

0

YES

29
0

5

10

15

20

25

30

35

Source: NEA.

Procedures for disseminating information in the case of a nuclear accident
Similar to the notification procedure, management and dissemination of information in the eventof a nuclear accident requires multilevel co-operation involving authorities and stakeholders
within the country and abroad. Furthermore, it should be noted from the outset that the type of
information that will be disseminated as well as the kind of protective measures that will be takenby the competent authorities on the basis of this information will be precisely dependent uponsuch assessment, which is supposed to be made by a specific authority in each country.

72 See Section 157 of the Act No. 263/2016 Coll. of 14 July 2016, 2016.
73 For more information on the SNSA, see Republic of Slovenia (n.d.), “Slovenian Nuclear Safety
Administration”, www.gov.si/en/state-authorities/bodies-within-ministries/slovenian-nuclear-safetyadministration (accessed 31 Aug. 2023).
74 Government of Canada (2014), Federal Nuclear Emergency Plan Part 1: Master Plan, supra note 63, Section 5.
75 SGDSN (2014), “National Response Plan Major Nuclear or Radiological Accidents” (n° 200/SGDSN/PSE/PSN).

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SESSION 1. NOTIFICATION OF AN ACCIDENT AND EVACUATION PROCESS

Dissemination of information may use different channels depending on the publicconcerned (e.g. local authorities may be responsible for informing the public that is affected, whilecentral government authorities may assume the task of informing the general public). National
competent authorities will assume the task of providing information at an international level.
Examples:•France: The Prime Minister and ministerial authorities, prefectural authorities, nuclear
safety authorities, expert agencies and the operator are involved in the process at thenational level. Each stakeholder will assume a different role in explaining the crisis
management structure, in offering educational information on the situation or eveninformation on how the accident is being handled step by step. At the international level,
the state authorities will take the lead and be in charge of informing the concerned states
and concerned international organisations; 76•

Slovenia: A wide range of institutional stakeholders work together to disseminate
information. Under the Act on the Protection Against Natural and Other Disasters, theEmergency Notification Centre of the Republic of Slovenia along with regional emergency
notification centres shall provide information and communication support to the
management and implementation of protection, rescue and relief (e.g. communicating
urgent information that needs to be published without delay and free of charge under themass media act). The publication of urgent appeals, announcements and other messages
shall have priority in any mass media. 77 The SNSA and the nuclear operator will also be
in charge of drafting press releases, which ultimately will have to be approved by the Civil
Protection Headquarters. In addition, regarding the foreign public, the Government
Communication Office will be in charge of disseminating information; 78•

United Kingdom: Local authorities are the duty holders for the local level response,
including the dissemination of information to the immediate public likely to be affected.
However, the Department for Business, Energy and Industrial Strategy (BEIS) 79 is the Lead
Government Department and would be responsible for national and international
dissemination of information;•

United States: Federal, state and local officials share responsibility for co-ordinating andcommunicating information to the public during a power plant radiological release
incident. State and local authorities have primary responsibility for making protective
action decisions and communicating health and safety instructions to their affected
populations. 80

Several responding countries provided a specific mention of the kind of information thatshall be disseminated by the authorities. Examples:•

Italy: According to Section II of the Chapter X of the Legislative Decree of 17 March 1995,
n. 230, specific information shall be provided to the public concerned, in a timely andrepeated manner. More specifically, it shall include (i) based on available information,
the kind of the emergency and its characteristics: (a) kind, (b) origin, (c) magnitude and

76 Ibid.
77 See Article 55 of the Act on Protection Against Natural and Other Disasters, as amended (Official Gazette
RS No. 64/1994).
78 See Section 5 of Government of the Republic of Slovenia (2021), “Protection Strategy for a Nuclear andRadiological Accident” (No. 84200-2/2021/3).
79 Secretariat note: BEIS existed until 2023 when it was split into the Department for Business and Trade(DBT), the Department for Energy Security and Net Zero (DESNZ) and the Department for Science,
Innovation and Technology (DSIT). Responsibility for national security and investment policy has goneto the Cabinet Office.
80 FEMA (2023), supra note 49.

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SESSION 1. NOTIFICATION OF AN ACCIDENT AND EVACUATION PROCESS(d) likely evolution; (ii) the measures to be adopted; and (iii) the authorities andorganisations to contact for information, advice, assistance and rescue; 81•

Slovak Republic: The licence holder and local authorities are required to immediately
inform the public about (i) the facts regarding the incident or accident; (ii) the actions thatneed to be taken; and, if necessary, (iii) the health protection measures regarding the
public affected. Further information should include information on (a) an incident or
accident, its characteristics, in particular its origin, extent and possible evolution;(b) measures in times of threat, and (c) urgent and follow-up measures to protect the
public. 82

Finally, the means used to communicate information towards the public play a significant
role. Such means need to respond to the urgency of the situation by rapidly spreading information
and reaching out to the entire population. Examples:•

Luxembourg: The information campaign incorporated in the emergency plan provides
three main elements: (i) establishment of a crisis information website 83 to provide
information on nuclear emergencies, radioactivity in general and the nuclear sites locatedclose to Luxembourg in English, French and German; (ii) publication of brochures toinform the population, raise their awareness and prepare them for such an eventuality;(iii) establishment of an office for crisis communication. This office, equipped withpermanent staff, is charged with updating all available information and organisingcommunication during a crisis by making use of modern network communication
platforms; 84•

Sweden: Providing general information to the public is a responsibility of all publicauthorities within their respective areas of competence. The County Administrative
Boards are responsible for informing the concerned population. Urgent information shallbe transmitted by radio as a VMA (Viktigt Meddelande till Allmänheten, i.e. Urgent
Message to the Public), but will also be made available through other national andinternational media, including social media. The main objective of the message is to giveeasily accessible and understandable information to the people affected by the accident;•

United States: The Nuclear/Radiological Incident Annex to the Response and Recovery
Federal Interagency Operational Plans states that in the event of a nuclear emergency,
FEMA’s Integrated Public Alert and Warning System provides significant capability for
public messaging, including capability to broadcast an alert message to all cellular phones
in a given area (as a Wireless Emergency Alert), access to the Emergency Alert System,NOAA All Hazards Weather Radio network, and internet connected alerting tools. 85

Introduction to Sub-session 2: Evacuation process
Ms Florence Touïtou-Durand, Head of Legal Affairs, French Alternative Energies and Atomic
Energy Commission (CEA), member of the NLC Bureau and Chair of Session 1, emphasisedthat the strategy of responding to a major nuclear or radiological accident is based on a synergyof actions, and more specifically: (i) the implementation of protective actions which areintended to promptly deploy in an emergency (especially an emergency management system –EMS); (ii) the return of the nuclear facility to a control state; (iii) communication with the publicthroughout the emergency; and (iv) the preparation of the post-accident management and the

81 See Article 130 of the Legislative Decree No. 230 of 17 March 1995, as amended (Official Journal, GU Serie
Generale n.136 of 13 June 1995).
82 See Article 28(22) of the Act No. 541/2004 on Peaceful Use of Nuclear Energy and on the Amendment
and Supplementing of Certain Acts, as amended.
83 Government of the Grand Duchy of Luxembourg (n.d.), “Info crise”, https://infocrise.public.lu/en.html(accessed 31 Aug. 2023).
84 SGDSN (2014), supra, note 75.
85 FEMA (2023), supra, note 49.

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SESSION 1. NOTIFICATION OF AN ACCIDENT AND EVACUATION PROCESS

protection of people through an evacuation process, among other means. The aim of such a
strategy is to limit public exposure to ionising radiation in the event of a major accident or incase of the threat of an accident.
During the emergency phase, the global strategy is based on three key measures:(i) evacuation, (ii) sheltering in place and (iii) stable iodine administration. The choice of measures
to be implemented and the geographical scope of these measures would depend on the situation.
With regard to the evacuation itself, its purpose is to protect the public as quickly as possible bymoving people to a place where there is no need to implement any protective measures to ensure
their protection against ionising radiation. Therefore, any evacuation process must be determinedin advance through documents, plans that are designed to clarify the organisation in the event of
a nuclear incident, etc. It is decided based on the foreseeable exposure to ionising radiation, but it
may change as the situation progresses. In cross-border areas, co-operation with neighbouring
countries is essential and it aims at achieving harmonised orders and/or guidelines to provide thehighest level of protection. Certain industrial activities and their possible closure following a
nuclear incident may cause damage to property or people and therefore it may be necessary to
implement measures to keep these activities ongoing for the safety of people and/or theenvironment. The sub-session on the evacuation process aims to address these issues.

Evacuation process: Overview of the applicable frameworks
Dr Patricia Milligan, Senior Technical Advisor, Division for Emergency Preparedness andResponse, Office of Nuclear Security and Incident Response, US NRC and member of the Bureauof the NEA Working Party on Nuclear Emergency Matters (WPNEM), provided an overview of theevacuation planning for nuclear power plant accidents in the United States. The importance ofthe protective actions in case of a nuclear incident (such as sheltering, evacuation, food embargo,
use of thyroid blocking drugs), which are designed to reduce doses received from a nuclear
incident, can hardly be underestimated. As of today, there were fortunately very few incidents at
nuclear power plants in the United States that necessitated implementation of protective actions,but certain experience was gained from other events (e.g. grave natural disasters). An effective
evacuation requires a thorough planning of not only the evacuation process itself, but also of its
short- and long-term consequences on people who were evacuated.
In the United States, the legal framework for evacuation is based primarily on the following
regulations and studies:•

the NRC Regulation 10 CFR 50.47(b)(10): Contains a range of protective actions developed
for the plume exposure pathway for emergency. Consideration has been given toevacuation, sheltering and the use of potassium iodide (KI), as appropriate. Evacuation
time estimates have been developed by applicants and licensees. According to thisregulation, the nuclear licensees shall update the evacuation time estimates on a periodic
basis;•

the NUREG 0654/FEMA-REP-1 “Criteria for Preparation and Evaluation of Radiological
Emergency Response Plans and Preparedness is Support of Nuclear Power Plants”: Laysout various criteria for evacuation, including evacuation time estimate analyses, public
notification, traffic planning and impediments to evacuation. All these requirements shallbe considered on an ongoing basis and regularly evaluated through biannual exercises;•

the EPA Protective Action Guide Manual: Describes the correlation between costs/risks
and benefits of evacuation and provides that “the decision to evacuate must weigh theanticipated radiation dose to individuals […] against the feasibility of evacuating […] andthe risks associated with the evacuation itself”; 8686 EPA (n.d.), “Protective Action Guide Manual”, available at: www.epa.gov/radiation/protective-actionguides-pags (accessed 31 Aug. 2023).

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SESSION 1. NOTIFICATION OF AN ACCIDENT AND EVACUATION PROCESS•

Evacuation Time Estimate Studies: NUREG/CR-4831 “State of the Art in Evacuation Time
Estimate Studies for Nuclear Power Plants” 1992; NUREG/CR-6863 “Development of
Evacuation Time Estimate Studies for Nuclear Power Plants” 2004; and NUREG/CR-7002“Criteria for Development of Evacuation Time Estimate Studies” 2011;•

the NUREG/CR-6864 “Identification and Analysis of Factors Affecting Emergency
Evacuations” 2005: Contains a review of 200 evacuations, among which 50 were selected
for additional study. The following lessons can be drawn from these studies: (i) the
evacuation process shall be managed as part of an overall emergency response(i.e. training, preparation, communication) as evacuation does not end when people are
moved beyond the demarcation zone and there is a need to consider what happens toevacuees afterwards; (ii) the scope of the transportation/transit of dependent people
needs to be reconsidered and the response to this shall be broadened;•

the NUREG/CR-6981 “Assessment of Emergency Response Planning and Implementation
for Large Scale Evacuations” 2008: Examines ten evacuations and emergencies in whichalmost eight million people were moved.

All these regulations and studies are updated on a regular basis, especially to take into accountthe outcome of different exercises and lessons learnt from real cases (such as the Fukushima
accident and the 2005 Hurricane Katrina). In addition, the IAEA Safety Guide No. GS-G-2.1“Arrangements for Preparedness for a Nuclear or Radiological Emergency” provides that thefollowing should be taken into account in preparing for evacuation: criteria and decision-making;established evacuation routes and traffic control; access control and protection of property;
arrangements for special population groups and facilities; consideration of farm animals and pets;
provisions to meet the human needs of evacuees.
Concerning the financial aspects of the evacuation process in the United States, the PriceAnderson Act states that the NRC has the obligation to make the determination of an
extraordinary nuclear occurrence. 87
Regarding the NEA activities in the area of evacuation, the NEA Working Party on Nuclear
Emergency Matters (WPNEM) is in charge of gathering lessons learnt from non-nuclear events,
joining forces with the OECD Working Group on Chemical Accidents, the High-Level Risk Forumof the OECD Public Governance and Territorial Development Directorate and the EC’s Joint
Research Centre. This collaboration resulted in the report entitled Towards an All-Hazards Approachto Emergency Preparedness and Response: Lessons Learnt from Non-Nuclear Events, which confirms
similarities in the EPR across sectors, identifies lessons learnt and good practices for the benefitof the international community and demonstrates the value of an all-hazards approach. Moreover,
the NEA organised an International Workshop on the INEX-5 Exercises on Notification,
Communication and Interfaces Related to Catastrophic Events Involving Radiation or Radiological
Materials 88 – a table-top exercise to address emergency management aspects of notification,communication and interfaces between and among countries and international organisations
during the early phase of a release from a nuclear power plant due to a catastrophic natural
disaster.

87 Paragraph 140.83 of the Price-Anderson Act provides that if the Commission determines that both ofthe criteria set forth in paragraphs 140.84 and 140.85 have been met, it will make the determinationthat there has been an extraordinary nuclear occurrence. If the Commission publishes a notice in theFederal Register in accordance with § 140.82(a) and does not make a determination within 90 days
thereafter that there has been an extraordinary nuclear occurrence, the alleged event will be deemed
not to be an extraordinary nuclear occurrence. The time for the making of a determination may be
extended by the Commission by notice published in the Federal Register. Price-Anderson Act, supranote 39.
88 For more information on the International Workshop on the INEX-5 Exercises on Notification,
Communication and Interfaces Related to Catastrophic Events Involving Radiation or Radiological
Materials, see NEA (n.d.), “INEX-5”, available at: www.oecd-nea.org/jcms/pl_27079/inex-5 (accessed 31
Aug. 2023).

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SESSION 1. NOTIFICATION OF AN ACCIDENT AND EVACUATION PROCESS

Evacuation process: A practical approach
Mr Toshimitsu Homma, Senior Advisor for Emergency Preparedness and Radiation Protection
Technical Coordinator, Radiation Protection Policy Planning Division, Radiation Protection
Department, Japanese Nuclear Regulation Authority, and member of the Bureau of the NEA
Committee on Radiological Protection and Public Health (CRPPH), gave an overview of theevacuation process in a nuclear emergency based on the lessons learnt from the Fukushima
Daiichi accident.
The nuclear emergency in the Fukushima Prefecture began on 11 March 2011 following theimpact of a tsunami triggered by the “Great East Japan Earthquake”. It led to prolonged releasesof radionuclides from several units at a multi-unit plant combined with a natural disaster. The
following diagram demonstrates radiological situation off-site and corresponding protective
actions implemented in the early phase of the Fukushima accident:

Figure 10. Fukushima accident: Radiological situation off-siteand corresponding protective actions

Ambient Dose Rate (μSv/h)

25.0

Fukushima (NW: 61km)
Koriyama (W: 58km)
Shirakawa (SW: 81km)
Aizu Wakamatsu (W:100km)
Minami Aizu (WSW: 115km)
Minami Soma (N: 24km)
Iwaki (SSW: 43km)

20.0

From ground contamination
15.0

10.0

5.0

Aizu
Wakamatsu

Koriyama

Minami
Aizu

Ma
r.3
1

Ma
r.2
9

Ma
r.2
7

Ma
r.2
5

Ma
r.2
3

Ma
r.2
1

Ma
r.1
9

Ma
r.1
7

Ma
r.1
5

Ma
r.1
3

Ma
r.1
1

0.0

Fukushima Minami
Soma

30km

Shirakawa

Date

1F
20kmNPP
2F NPP

Iwaki

20km

Source: Homma, T. (2017) "Evacuation Process in Nuclear Emergency – Lessons from Fukushima Daiichi accident”, presented at the Third
International Workshop on the Indemnification of Damage in the Event of a Nuclear Accident, Bratislava, October 2017.

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SESSION 1. NOTIFICATION OF AN ACCIDENT AND EVACUATION PROCESSThe following diagram shows a timeline of key events and respective urgent protective
actions that were taken right after the Fukushima accident:

Figure 11. Fukushima accident: Urgent protective actions

What urgent protective actions were taken?
EventsMarch 11, 14:46 Earthquake
16:45 Notified Nuclear Emergency at Unit 1, 2
Inability of water injection
March 12Pressure in Primary Containment
Vessel increased in Unit 1
15:36 Hydrogen explosion in Unit 1
Risks at multiple units
March 14, 11:01 Hydrogen explosion in Unit 3
March 15, 06:00 Events at multiple units
March 16
Iodine in tap water and milk
Iodine and cesium in vegetation
March 17
Ambient dose rate (170μSv/h) at 30km
north west of Nuclear Power Plant
March 22, Considering support for people
in sheltering area

5

Response

March 11
19:03 Declaration of Nuclear Emergency
20:50 Evacuation within 2km
21:23 Evacuation within 3km (6000 people)
Completed at 1:45 on 12th
March 1205:44 Evacuation within 10km (51000 people)
18:25 Evacuation within 20km (78000 people)
Completed at 14:00 on 15th
March 15, 11:00 Sheltering (20-30km)
March 16, Directed administration of stableiodine during evacuation
March 21
Drinking water restriction
Food restriction
March 25, Request of voluntary evacuationin sheltering area (20-30km)
April 10, Nuclear Safety Commission (NSC)
recommended temporary relocation
April 22, Directed temporary relocation

Source: Homma, T. (2017) "Evacuation Process in Nuclear Emergency – Lessons from Fukushima Daiichi accident”,
presented at the Third International Workshop on the Indemnification of Damage in the Event of a Nuclear Accident,
Bratislava, October 2017.

Evacuations started on 11 March 2011, followed by sheltering, food and drinking water
restrictions and temporary relocation. With regards to the evacuation itself, actions were notalways co-ordinated as the competent authorities experienced major problems in communication
due to the difficulties in activating the off-site response centre, which was damaged during theaccident, the plant conditions and certain insufficiencies in pre-planning. Orders for evacuationand sheltering were modified several times within 24 hours. The extended time of sheltering anda breakdown of the local infrastructure resulted in serious disruptions to people’s lives. There
were major problems in transmitting the evacuation orders from the national government to the
local governments (only three municipalities within the emergency planning zone of
10 kilometres received the orders), but thanks to municipalities’ independent judgement andbased on the information obtained via media, the concerned evacuation orders were issued. Prior
to the accident, municipalities within the 10-kilometre zone (as per the Emergency Planning Zone
in force at that time) had their own emergency plan according to which people had to betransported by bus to a temporary gathering spot. But a wider area evacuation plan across themunicipalities was not prepared. As a consequence, several evacuees were required to moveseveral times from one evacuation area to another in the absence of any accurate information
regarding the duration of evacuation and the exact location (e.g. more than 20% of the overall
number of evacuees were moved more than six times).
Prior to the accident, the criteria for lifting protective actions and the criteria for long-term
protective actions were not available. Initial urgent protective actions put in place were also
modified several times, resulting in changes in sheltering. The competent authorities requested
residents to evacuate on a voluntary basis in certain areas. In addition, they applied theInternational Commission on Radiological Protection (ICRP) concept of optimisation of protection

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below a reference level in the Emergency Exposure Situation 89 and established a Deliberate
Evacuation Area comprising areas beyond the 20 kilometres of the evacuation zone where theannual cumulative dose after the onset of the accident would potentially reach 20 mSv. As a resultof the environmental monitoring conducted beyond the restricted area, specific locations wereidentified with a potential exposure to doses for residents above 20 mSv within one year from theaccident. These locations were designated as specific spots recommended for evacuation in a
Governmental Guideline issued in June 2011 (in total, 300 houses were concerned). In August 2011,
the government prepared requirements for lifting evacuation orders for certain areas based on
the safety status of the nuclear power plant, the decrease of the air radiation dose rate and therestoration of the public service functions and infrastructure. In September 2011, lifting of theevacuation-prepared area between 20 to 30 kilometres was implemented.
In terms of radiological impact, and thanks to the precautionary evacuation measures that
reduced the exposure to ionising radiation, the average effective doses to adults who were
evacuated in March 2011 were estimated to be less than 6 mSv in the first year after the accident
and, to those evacuated in April to June 2011, less than 10 mSv in the first year. The doses received
in the Deliberate Evacuation Area were significantly impacted by the delays in evacuation in theearly phases. Approximately 2 200 patients and elderly people stayed in hospitals and nursing
homes within the 20 kilometres evacuation zone. No medical support was provided during
evacuation of these people or at shelters, resulting in the deterioration of the physical conditionof many patients. More than 50 patients died either during or soon after the evacuation in March
2011. The overall criteria of the restricted zones (conditions for lifting evacuation orders,parameters for decontamination, etc.) were rearranged in December 2011 on the basis of thenuclear power plant conditions (i.e. reactor core shutdown was completed). The first lifting of anevacuation order was made in April 2014 and concerned a low-contamination area. As of March
2020, all evacuation orders were lifted except for so-called “Difficult to Return” zone (i.e. the zone
where the overall exposure dose is estimated at 50 mSv or less a year). 90 Nevertheless, and as of
October 2017, the percentage of returning people was still low due to difficulties to access medical
and infrastructure services, and people’s concern about radiation conditions and the safety of thenuclear power plant. As of October 2017, there were still 57 000 people evacuated out of the initial
160 000 evacuees.
Although no direct health effects of radiation were discernible, the mortality risk wassignificantly higher in the first month of the triple disasters. This excess risk of death is attributed
to indirect health impacts. The Disaster Related Deaths (the “DRDs”, which can be defined as
deaths which occurred due to aggravation of injury as a result of the Great East Japan Earthquake,and who qualified for condolence money pursuant to the Act on Payment of Condolence Money
due to the natural disaster) in Fukushima accounted for 60% of all DRDs (2 147 out of 3 591 in total)
within the first 72 months after the earthquake (as of March 2017).
The following key lessons may be drawn based on the experience gained from the
Fukushima accident:•

necessary arrangements should be established for implementing precautionary urgent
protective actions before a release on the basis of the nuclear power plant conditions;•advance preparation for the safe evacuation of special facilities is necessary(e.g. designation of medical teams and hospitals, means of transportation);•sheltering indoors should be conducted only for a short period until either safe
evacuation or termination of sheltering is possible;•

predefined criteria based on operational intervention levels concerning relocation andother early measures are needed to ensure a timely response;

89 ICRP (2009), Application of the Commission’s Recommendations for the Protection of People in Emergency
Exposure Situations, ICPR Publications 109. Ann. ICPR 39 (1).
90 Secretariat note: The restricted area still subject to evacuation orders as of 31 March 2021 is available at:www.meti.go.jp/english/earthquake/nuclear/roadmap/index.html (accessed 31 Aug. 2023).

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timing and support for evacuation need to be optimised to reduce radiation exposure,
avoid negative health effects arising from evacuation or relocation, and provide
necessary medical and psychological assistance; and•strategies and arrangements for lifting evacuation orders are key to reducing humanhealth effects.

It is important to improve emergency response arrangements based on past experience, andto continuously improve arrangements in practice through exercises.

Discussion session
A question arose regarding what entity should be primarily responsible for paying evacuationrelated costs to compensate victims in accordance with the nuclear liability conventions in theframework of the preventive measures. Should it be the operator? The local authorities? The
government? Based on the example of the United States, the operator pays certain fees to thestate to set up and maintain emergency preparedness plans; therefore, the planninginfrastructure should come from the operators. When an event occurs, it enrols in the generalinsurance fund, but the operator pays for the entire infrastructure and co-ordinates the entire
evacuation plan with the state. There is additional money that may be available according to
FEMA upon certain conditions.
With regard to the impact and/or potential pressure exercised by certain media on thecompetent authorities regarding the question as to whether an evacuation order should be
issued when an event occurs (even low-level dose radiation incidents), it appeared that thisrepresents a real issue for the competent authorities as some of the media do not check theaccuracy of the information they deliver (the facts are often verified at a later stage), which leads
to a situation where the authorities are put into disadvantageous conditions. There is a need tochange the way the low-level dose radiation incidents are discussed and to figure out how thecompetent authorities can get the attention of people more effectively.
Finally, concerning the issue of the people’s behaviour during evacuation and the need toapply penalties or sanctions against those who do not follow the evacuation orders, the lessons
learnt from past events demonstrate that people usually behave well during disasters andtypically follow the instructions given. However, it might be difficult to control things at the
beginning of an accident; therefore, the behaviour of people and other stakeholders (such as thestate and competent authorities) may raise certain liability issues at a later stage before courts.

Overview of responses to the questionnaireWith regard to the evacuation process, the responding countries were invited to identify theauthorities that would make decisions with respect to evacuation measures and impose
restrictions (on harvesting, production and consumption of food products, etc.) following a nuclear
accident. On the basis of the responses received, the following elements appear to be shared by
the responding countries in their approaches to implementing such measures:a) Complementarity between competent authorities. This may concern:i)

Close co-ordination between national authorities in charge of protective measures. As
an example:–

Austria: The Federal Ministry of Agriculture and Forestry, Environment and Water
Management (BMLFUW) in co-ordination with the Federal Ministry of Health and
Women’s Affairs (BMGF) are responsible for decisions on protective measures in caseof a nuclear/radiological emergency. The competency for the control of food lies with

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the BMGF. In addition, based on the Radiation Protection Act, a joint decision about theprohibition of placing food on the market will be taken by the BMLFUW and the BMGF. 91
Assistance from technical agencies providing their expertise to national or local
authorities, implementing protective measures. Examples:ii)–

Canada: Recommendations for evacuation would be issued by the provincial
authorities responsible for public safety. These recommendations would be based on
the CNSC guidelines limiting public exposure to radiation of no more than 1 mSv/year
from nuclear facilities. 92 Food restrictions would be issued by the Canadian Federal
government under its Food and Drug Act as a responsibility of Health Canada. 93
Overall, the Canadian Guidelines for Intervention During a Nuclear Emergency would
serve as a framework for the restrictions to be applied; 94–

Sweden: Under the Civil Protection Act (2003:778) and the Civil Protection Ordinance(2003:789), the leader of the rescue services in place is in charge of making decisions
with respect to evacuation and other immediate measures. The County Administrative
Boards are responsible for carrying out the evacuation operations in their own county
area. It is also their responsibility to plan and implement other public protective
measures, including sanitising an affected area. They will be assisted by the Swedish
Radiation Safety Authority, the Swedish Food Agency, the Swedish Board of
Agriculture and the National Board of Health and Welfare, which are also relevant
competent regulatory bodies.
Close co-operation between national and local authorities. Examples:iii)–

Netherlands: Under the Act of 21 February 1963 laying down rules on the release of
nuclear energy and the use of radioactive materials and equipment emitting ionisingradiation (the “Nuclear Energy Act”) and the Act of 11 February 2010, containing
provisions on fire services, disaster and crisis management and medical assistance(the “Security Regions Act”), in the case of a nuclear incident occurring at a nuclear
power plant, the competent minister has the authority to take special measures,e.g.: (i) denying access to the affected area; (ii) evacuating people, animals or goods,(iii) confiscating goods and animals that are likely to have been contaminated;(iv) accelerating drainage of contaminated water; and (v) decontaminating people anddistributing protecting substances. Mayors and the Chairman of the security region(i.e. division of the territory of the Netherlands in case of an emergency), have toco-operate in the execution of these measures. The Chairman of the security region
can take such measures as well, but must report them to the competent minister who
can take substitutional measures or order their repeal; 95–

Poland: Pursuant to Article 89 of the 2000 Atomic Energy Act, decisions on
intervention measures for nuclear emergencies with consequences not occurringoutside one region are taken by regional governors (wojewoda). In emergencies of

91 For more information on the emergency plans in Austria and a compendium of protective measures incase of accidents at nuclear power plants, see Ministry of Climate Action and Energy (n.d.),“Strahlenschutz”, available at: www.bmk.gv.at/themen/klima_umwelt/strahlenschutz.html (in German
only) (accessed 31 Aug. 2023).
92 See Sections 13, 14 and 15 of the Radiation Protection Regulations (SOR/2000-203) (Canada Gazette,
Statutory Instruments, Vol. 134, No. 13 of 21 June 2000).
93 Canadian Food and Drug Act, as amended (R.S.C., 1985, c. F-27).
94 Health Canada (2003), Guidelines for Intervention During a Nuclear Emergency.
95 See Articles 46 to 49(d) of the Act of 21 February 1963 laying down rules on the release of nuclear energy
and the use of radioactive materials and equipment emitting ionising radiation, 1963 (Stb. [Bulletin of acts,
orders and decrees] 1963, No. 82) (Nuclear Energy Act). See Part 2 of the Act of 11 February 2010 containing
provisions for the fire services, disaster management, crisis management and medical assistance, 2010
(Stb. 2010, No. 145) (Security Regions Act).

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wider range, including accidents abroad, the Council of Ministers is responsible formaking such decisions; 96–

United States: The Nuclear/Radiological Incident Annex to the Response and Recovery
Federal Interagency Operational Plans provides that state and local officials have theoverall responsibility for developing and implementing the appropriate protective
action decisions for the public during a radiological emergency at a nuclear power
plant. They are responsible for notifying the public to take protective actions such as
evacuation, sheltering in place, or taking potassium iodide as a supplement, basing
their decisions on the protective action recommendations provided by the nuclear
power plant operator and their own radiological or health organisations. The NRC
provides advice, guidance and support to state and local government officials. Neither
the operator nor the NRC can order the public to take protective actions. 97b) Decision to evacuate shall be based, among other criteria, on the radiological evaluation of
the situation. As an example:•c)Finland: In the event of a nuclear accident, the Radiation and Nuclear Safety Authority(STUK) is responsible for formulating the description of the accidents and the evaluationof the possible radiation impacts to the public. This forms the basis for the preparedness
measures that STUK suggests to other authorities that are responsible for making thedecisions about the emergency preparedness measures. More precisely, the Ministry of
the Interior is responsible for the national co-ordination of the emergency preparedness
measures. The operational lead belongs to the rescue services or the police, depending on
the situation. Evacuation is part of this task. Furthermore, the Finnish Boarder Guard leads
the operation in sea areas. In addition, the Ministry of Agriculture and Forestry is
responsible for setting the limits for the maximum allowed amount of radiation in foodproducts and feed, while the Finnish Food Authority gives orders and guidance concerning
the protection of primary production, food products, feed and water supply in close
co-operation with STUK.

Nuclear operator remains a key stakeholder in the elaboration of protective measures.
Examples:•Slovenia: In case of an emergency event at the Krško nuclear power plant, the operator
shall propose immediate protective measures, which shall be co-ordinated with the
SNSA; 98•

United States: Protective action recommendations shall be provided by the operator of
the nuclear power plant. 99

Session 1 – Conclusionsi.

Existence of a relevant international framework: States shall notify other states of a(potential) transboundary nuclear accident according to the Early Notification
Convention, with the IAEA playing a central role in this exchange of information. The
IAEA’s mission was extended to include the assessment of potential emergency
consequences and prognosis of possible emergency progression after the Fukushima
accident. States shall also have a consistent legal international framework in place tomeet their obligations for the emergency preparedness according to the Assistance
Convention, the Nuclear Safety Convention, the Joint Convention, and the IAEA Safety
Standards, guidelines and operational arrangements;

96 Act of 29 November 2000 on Atomic Energy, 2000, supra note 66.
97 FEMA (2023), supra note 49.
98 Section 9 of Government of the Republic of Slovenia (2021), “Protection Strategy for a Nuclear andRadiological Accident” (n° 84200-2/2021/3).
99 FEMA (2023), supra note 49.

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50

ii.

Challenges: Effective co-ordination is needed nationally and internationally to ensuretransmission of reliable, accurate and timely information to other national authorities
and to the public and avoid the “pollution” of information by social media;

iii.

Requirements for an effective and timely evacuation: Planning, emergency preparedness(e.g. in the United States, based on licensees’ input; the US NRC, FEMA and EPA
assessments, guidelines and regulations; international exercises such as the NEA
international nuclear emergency exercises) and consideration of lessons learnt from
non-nuclear disasters are essential;iv.

Lessons learnt from the Fukushima accident: Evacuate in a timely and safe manner (do moregood than harm); ensure that evacuation arrangements are in place, up to date andrelevant to different intervention levels (safety culture is essential); sheltering must bea short-term solution; psychological assistance is necessary in addition to medical help.

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SESSION 2. DETERMINING THE DAMAGE TO BE COMPENSATED

Session 2
Determining the damage to be compensatedIntroduction
Mr Ben McRae, Assistant General Counsel at the US Department of Energy, member of the NLC
Bureau and Chair of Session 2, highlighted that the concept of “nuclear damage” was one of
the most interesting topics discussed during the negotiations of the Revised Paris Convention
and the Revised Vienna Convention. It appeared that in every country the concept of “nuclear
damage” meant something different. A lot of progress has been made since the original
conventions were drafted with regard to the categorisation of the damage to be covered under
the definition of “nuclear damage” in the revised nuclear liability conventions, which
introduced, in addition to the two “traditional” categories of “loss of life or personal injury” and“loss of or damage to property”, certain types of economic loss, the costs of restoring an
impaired environment and the costs of measures taken to prevent or minimise nuclear damage.
However, such losses and costs constitute nuclear damage only “to the extent determined by
the law of the competent court” 100 – which makes it clear that it is ultimately up to thecompetent court to decide, in accordance with the national law applicable, what exactly iscovered under the definition of “nuclear damage”, and to what extent.

Determining the damage to be compensated: Evolution of the international nuclear
liability conventions
Mr Andrea Gioia, Senior Legal Officer at the Office of Legal Affairs, IAEA, gave an overview ofthe evolution of the international nuclear liability conventions in terms of determining damage
to be compensated. The Paris Convention and the Vienna Convention were both adopted in theearly 1960s and were drafted in similar but not identical terms. The structure of the twoconventions is different with regard to the definition of “nuclear damage”: in the Vienna
Convention, there is a definition of “nuclear damage” integrated in the list of definitions
provided in Article 1 of the Convention, 101 whereas the Paris Convention does not define“nuclear damage” in its list of definitions, but covers it in its Article 3, which governs theoperator’s liability. 102 However, regarding the definition of “nuclear damage”, both Conventions
cover loss of life or personal injury, and loss of or damage to property.

100 See Article 1(vii) of the Revised Paris Convention, Article I.1(k) of the Revised Vienna Convention and
Article I(f) of the CSC.
101 Article I.1(k) of the Vienna Convention defines “nuclear damage” as follows : “'Nuclear damage' means- (i) loss of life, any personal injury or any loss of, or damage to, property which arises out of or resultsfrom the radioactive properties or a combination of radioactive properties with toxic, explosive or otherhazardous properties of nuclear fuel or radioactive products or waste in, or of nuclear material coming
from, originating in, or sent to, a nuclear installation; (ii) any other loss or damage so arising or resulting
if and to the extent that the law of the competent court so provides; and (iii) if the law of the Installation
State so provides, loss of life, any personal injury or any loss of, or damage to, property which arises
out of or results from other ionizing radiation emitted by any other source of radiation inside a nuclear
installation.”
102 Article 3(a) of the Paris Conventions provides that “The operator of a nuclear installation shall be liable,in accordance with this Convention, for: (i) damage to or loss of life of any person; and (ii) damage to or

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The main dissimilarity lies in the fact that the Vienna Convention provides an “open”
definition of “nuclear damage” as it also covers “any other loss of damage to the extent provided
by the law of the competent court”, whereas the definition of “nuclear damage” provided by
Paris Convention is a “closed” one. Both Conventions exclude damage to the nuclear installation
itself and to any property on the same site (which is used or to be used in connection with that
installation). 103 These provisions aim at preserving the limited amount of money available
under the Conventions for payment of damage suffered by third parties. 104 In addition, theVienna Convention also excludes damage to the means of transport upon which the “nuclear
material” involved was at the time of the incident, but the law of the installation state may
provide to the contrary. 105
In order to be covered by the definition of “nuclear damage”, both the Vienna Convention and
the Paris Convention require damage to arise out of or result from the radioactive properties of“nuclear fuel” or “radioactive products or waste” in a “nuclear installation”, a combination ofradioactive properties with toxic, explosive or other hazardous properties of the same. 106 In caseof transport, the above definitions are replaced by “nuclear material” [Article I.1(h) of the Vienna
Convention] and “nuclear substances” [Article 1(a)(v) of the Paris Convention]. Moreover, thedamage arising out of, or resulting from “ionizing radiations emitted by any source of radiation
inside a nuclear installation” is mandatorily covered by the Paris Convention. 107 The Vienna
Convention only includes this kind of damage “if the law of the Installation State so provides”. 108
Both Conventions contain provisions on compensation of damage other than “nuclear
damage”. Article IV.4 of the Vienna Convention allows for the compensation of damage otherthan “nuclear damage” when a “nuclear incident” causes both “nuclear damage” and anotherkind of damage and the two are not reasonably separable. Article 3(b) of the Paris Convention
does the same where the damage or loss is caused jointly by a “nuclear incident” and an incident
other than a “nuclear incident.” Both Conventions also provide that when damage is caused
jointly by a “nuclear incident” covered thereby and an emission of ionising radiation outside
their scope, nothing shall limit or otherwise affect the liability of any person who may be liablein connection with that emission of ionising radiation. The scope of application of theseprovisions is however not the same, as the Paris Convention only excludes damage caused
outside a nuclear installation, 109 whereas the Vienna Convention also excludes damage inside

loss of any property other than 1/ the nuclear installation itself and any other nuclear installation,
including a nuclear installation under construction, on the site where that installation is located; and2/ any property on that same site which is used or to be used in connection with any such installation,
3/ upon proof that such damage or loss (hereinafter referred to as ‘damage’) was caused by a nuclear
incident in such installation or involving nuclear substances coming from such installation, except asotherwise provided for in Article 4.”
103 See Article 3(a) of the Paris Convention and Article IV.5 of the Vienna Convention.
104 Secretariat note: The following definition of a “third party” can be cited: “A ‘third party’ is anyone other thanthe operator of the nuclear installation at which, or in the case of transport in relation to which, theaccident occurs and other than a supplier of goods, services or technology used, or to be used, inconnection with that nuclear installation. A third party includes the employees of the operator of that
nuclear installation, although such employees may be required under their national legislation to seek
redress under a public health insurance, social security, workers’ compensation, or other scheme orsystem relating to occupational accidents or diseases in case of accident or illness.” See Schwartz, J. (2022),“Liability and compensation for third party damage resulting from a nuclear incident”, in NEA (ed.),Principles and Practice of International Nuclear Law, OECD Publishing, Paris, p. 409.
105 See Article IV.5 of the Vienna Convention.
106 See Article 1(a)(i) of the Paris Convention and Article I.1(k) of the Vienna Convention.
107 The definition of “radioactive products or waste” provided in Article 1(a)(iv) of the Paris Convention excludes
only radioisotopes “outside a nuclear installation” which have reached the final stage of fabrication.
108 The definition of “radioactive products or waste” in Article I.1(g) of the Vienna Convention excludes
radioisotopes which have reached the final stage of fabrication without further qualification.
109 See Article 3(b) of the Paris Convention and paragraph 8 of NEA (1982), “Exposé des Motifs”, revised text
approved by the OECD Council on 16 Nov. 1982, OECD Doc. C/M(82)24(Final) (Exposé des Motifs of the Paris
Convention).

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a nuclear installation but not caused by “nuclear fuel” or “radioactive products or waste” asdefined in the Convention, unless otherwise provided by the law of the installation state. 110
As a conclusion, both definitions of “nuclear damage” provided in the Paris Convention andthe Vienna Convention apply to nuclear incidents at nuclear installations and to transport
incidents. The two definitions are broadly similar, but there are some minor differences:•“open” versus “closed” definition: “any other loss or damage” (i.e. nuclear damage otherthan loss of life and personal injury, and loss of, or damage to, property) may be coveredby national law under the Vienna Convention, but not under the Paris Convention;•

damage caused by radioisotopes: damage caused by ionising radiations emitted by “anysource of radiation inside a nuclear installation” is mandatorily covered by the Paris
Convention, but not by the Vienna Convention;•“damage to the means of transport” is mandatorily covered by the Paris Convention, but
not by the Vienna Convention.

The Chernobyl accident questioned the effectiveness of the nuclear liability conventions
existing at that time and challenged the adequacy of these conventions to cope with thetransboundary effects of a major nuclear incident. The negotiations that started in 1989 underthe IAEA auspices to revise the Vienna Convention concluded that the Vienna Convention’s
definition of “nuclear damage” is “ambiguous and inadequate”, 111 especially with respect to thecoverage of environmental damage and various forms of economic loss not necessarily includedin the concept of personal injury or damage to property. The need to bring the Vienna
Convention more in line with the Paris Convention to facilitate the application of the Joint
Protocol was also expressed. The negotiations resulted in the adoption of the Revised Vienna
Convention and the CSC, and led to an opening in 1997 of negotiations regarding there-examination of the Paris Convention concerning, among other issues, its definition of“nuclear damage” in order to bring it in line with the new definition of “nuclear damage” in the
Revised Vienna Convention and the CSC, and facilitate the application of the Joint Protocol. The
Revised Paris Convention was adopted in 2004.
The new definition of “nuclear damage” provided in the Revised Vienna Convention, the
CSC and the Revised Paris Convention 112 covers, in addition to loss of life or personal injury, andloss of or damage to property, five additional heads of damage, each “to the extent determinedby the law of the competent court”, and specifically:•

economic loss arising from death or personal injury or from property damage, insofar
as not included therein;

110 See Article IV.4 of the Vienna Convention and IAEA (2020), The 1997 Vienna Convention on Civil Liability for
Nuclear Damage and the 1997 Convention on Supplementary Compensation for Nuclear Damage – Explanatory
Texts, IAEA International Law Series, No. 3 (Rev. 2), IAEA Doc. STI/PUB/1906, IAEA, Vienna (Explanatory
Texts of the 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention on
Supplementary Compensation for Nuclear Damage), Section 1.2.
111 Ibid., IAEA (2020), The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention
on Supplementary Compensation for Nuclear Damage – Explanatory Texts, Section 2.3.1.
112 See Article I.1(k) of the Revised Vienna Convention, Article I(f) of the CSC and Article 1(a)(vii) of the
Revised Paris Convention.

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SESSION 2. DETERMINING THE DAMAGE TO BE COMPENSATED•

the costs of “measures of reinstatement” 113 of impaired environment, unless such
impairment is insignificant, insofar as not already included as property damage;•loss of income deriving from an economic interest in the use or enjoyment of theenvironment incurred as a result of significant impairment, and insofar as not alreadyincluded as property damage; 114 and•the costs of “preventive measures”, 115 and further loss or damage caused thereby.

In addition, the definition in the Revised Vienna Convention and the CSC also includes a“residual” head of damage, i.e. “any other economic loss, if permitted by the general law on civil
liability of the competent court”. The Revised Vienna Convention no longer excludes “nuclear
damage” to the means of transport, but the CSC still does, “unless the law of the Installation State
provides to the contrary”.
The provisions relating to compensation of damage other than “nuclear damage” remainunchanged. All conventions now mandatorily include within the definition of “nuclear damage”
damage arising out of, or resulting from, ionising radiation emitted by any source of radiation
inside a nuclear installation. With regard to time limitation, the Vienna Convention and theParis Convention provide that rights of compensation are extinguished if an action is notbrought within ten years from the date of the nuclear incident. 116 The Revised Vienna
Convention and the Revised Paris Convention extend the period of extinction to 30 years, but
only for loss of life and personal injury. 117 The CSC Annex keeps the period of extinction at ten
years for all kinds of nuclear damage. Longer periods can only be allowed if, under the law of
the installation state, insurance or other financial security is available. 118
As a conclusion, and with regard to the modernised nuclear liability conventions:•

all those nuclear liability conventions now deal with compensable damage in adefinition of “nuclear damage”;•

they now mandatorily cover damage to the means of transport;•

all definitions now mandatorily cover damage caused by “any source of radiation inside
a nuclear installation”;•

all definitions are now structured as “closed” definitions and are almost identical;

113 Secretariat note: “Measures of reinstatement” are defined as any “reasonable measures” which have been
approved by the competent authorities of the state where the measures were taken, and which aim toreinstate or restore damaged or destroyed components of the environment, or to introduce, where
reasonable, the equivalent of these components into the environment. The law of the state where thedamage is suffered shall determine who is entitled to take such measures. For more information, see
Article I.1(m) of the Revised Vienna Convention, Article I(g) of the CSC and Article 1(a)(viii) of the Revised
Paris Convention.
114 The definition in the Revised Paris Convention requires the economic interest to be “direct”.
115 “Preventive measures” are defined as any “reasonable measures” taken by any person after a nuclear
incident taken by any person after a nuclear incident [Secretariat note: The Revised Paris Convention
adds to this definition the following sentence - “or an event creating a grave and imminent threat ofnuclear damage has occurred”, but the Revised Vienna Convention and the CSC have similar words inthe amended definition of “nuclear incident” (Article I.1(l) and Article I(i), respectively], to prevent or
minimise nuclear damage, subject to any approval of the competent authorities required by the law of
the state where the measures were taken. See Article I.1(n) of the Revised Vienna Convention, Article
I(h) of the CSC and Article 1(a)(ix) of the Revised Paris Convention. “Reasonable measures” are defined
as measures which are found under the law of the competent court to be appropriate and proportionate,having regard to a number of enumerated circumstances. See Article I.1(o) of the Revised Vienna
Convention, Article I(l) of the CSC and Article 1(a)(x) of the Revised Paris Convention.
116 See Article VI of the Vienna Convention and Article 8 of the Paris Convention.
117 See Article VI of the Revised Vienna Convention and Article 8 of the Revised Paris Convention.
118 See Article 9 of the CSC Annex.

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all definitions cover the same new heads of damage, in addition to the two traditional
ones, except that: (i) the Revised Paris Convention requires a “direct” interest in the use
or enjoyment or the environment in order for economic loss deriving therefrom to becompensable; 119 and (ii) the Revised Vienna Convention and the CSC also cover “anyother economic loss, other than any caused by the impairment of the environment, if
permitted by the general law on civil liability of the competent court”. 120

Determining the damage to be compensated: National legal systems
Ms Ximena Vásquez-Maignan, Head of the NEA Office of Legal Counsel, further elaborated on
the topic of damage to be compensated with regard to national legal systems. Time is definitelyof the essence when a nuclear incident occurs. If there is a dispute on the determination of the“nuclear damage” to be compensated, victims will have to submit their case to the competentcourt, and more precisely: (i) if there are treaty relations between the installation state and theaffected state, the competent court will be determined according to the provisions on
jurisdiction of the common treaty and will rule on the exact extent of “nuclear damage” to becompensated; (ii) if there are no treaty relations, the competent court will have to be designatedin accordance with the international private law principles and, once determined, will rule on
the “nuclear damage” to be compensated and its extent.
If there is a dispute on the interpretation or implementation of the definition of “nuclear
damage” provided under an international nuclear liability convention, states parties to the same
convention may submit their case to the relevant court or tribunal, and more specifically: theEuropean Nuclear Energy Tribunal for the Paris Convention and the Brussels Supplementary
Convention contracting parties, the International Court of Justice for the Vienna Convention
parties, 121 and arbitration or the International Court of Justice for the Revised Vienna Convention
and the CSC parties. 122 However, victims have neither time or means (financial or material), nor
mental strength to go to court to get compensated in order to be able to continue with their lives.
What options have been retained by the countries to try to clarify what “nuclear damage” means
in practice and avoid a lengthy discussion between the operator, the victims and the courts? 123
There are very few countries that have designated an authority or commission to further
specify which damage shall be compensated. This is the case of:•Canada, where a Nuclear Claims Tribunal can be established “to examine and adjudicate
claims for damage arising from the nuclear incident as expeditiously as the circumstancesand considerations of fairness permit”: 124•

Romania, where the National Commission for the Control of Nuclear Activities may set
up a special commission to determine the cause and consequences of the nuclear
occurrence, examine and assess nuclear damage, issue recommendations as to thecompensation, assistance and reconstruction measures, and issue recommendations as
to the improvements to the nuclear installation with respect to nuclear and radiation
emission safety; 125 and

119 See Article 1(a)(vii) of the Revised Paris Convention.
120 See Article I.1(k) of the Revised Vienna Convention and Article I(f)(vii) of the CSC.
121 Optional Protocol Concerning the Compulsory Settlement of Disputes (1963), IAEA Doc. INFCIRC/
500/Add.3, entered into force 13 May 1999.
122 See Article XX.A of the Revised Vienna Convention and Article XVI of the CSC.
123 For more information, see an overview of the replies to the questionnaire provided later in this Session.
124 See Sections 36 to 69 of the Nuclear Liability and Compensation Act, 2015 (SC 2015, c. 4, s. 120) (NLCA).
125 Law no. 703/2001 on civil liability for nuclear damage (Official Gazette of Romania, Part I, no. 818 of
19 December 2001). Secretariat note: For more information, see Chirica T. and V. Chiripus (2004), “Third Party
Nuclear Liability Regime in the Romanian Legislation”, 5th International Conference on Nuclear Option inCountries with Small and Medium Electricity Grids, Dubrovnik, Croatia, 16-20 May.

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SESSION 2. DETERMINING THE DAMAGE TO BE COMPENSATED•Slovenia, where a Commission for the Assessment of Nuclear Damage may be set up to
prepare an assessment of the amount of nuclear damage within six months from thedate of the nuclear incident and will “propose the amount, the manner and the
dynamics of the drawing of funds”. 126

The example of Japan is particularly noteworthy. The Japanese Act on Compensation for
Nuclear Damage (the “Compensation Act”), 127 although adopted before the ratification of the
CSC by Japan, reflects all the basic principles of the nuclear liability convention. The Act also
contains provisions governing the Japanese Dispute Reconciliation Committee for Nuclear
Damage Compensation (the “Reconciliation Committee”). The Reconciliation Committee has
two roles: (i) to mediate disputes between victims and the operator; and (ii) to issue guidelines
to define what nuclear damage shall be compensated (the “Guidelines”).
The Reconciliation Committee was established in April 2011, quickly after the Fukushima
accident. 128 Before then, it had already been established once, in 1999 after a criticality accident at
the nuclear fuel processing facility at Tokaimura, and it was dissolved in 2010. The Reconciliation
Committee consists of ten members coming from different fields of expertise, who are appointed
by the Japanese Ministry of Education, Culture, Sports, Science and Technology (MEXT).
Between April 2011 and December 2014, the Reconciliation Committee issued eight nonbinding Guidelines 129 to further determine the scope of nuclear damage to be compensated withregard to the Fukushima accident. Indeed, even though the Compensation Act provides adefinition of “nuclear damage”, 130 it appeared that this was not detailed enough to organisesmooth and efficient compensation to victims for nuclear damage. The Guidelines determine thetype of damage to be compensated. In order to make sure not to include damage that would only
have been exclusively caused by the natural disaster (i.e. the earthquake and the tsunami), theReconciliation Committee took into consideration the damage that was compensated for theTokaimura incident, as no natural event had taken place then. When drafting these Guidelines,“the Committee also took the view that so long as there was a legally sufficient cause between an
item of damage and the accident – namely that it was damage within a scope that is judged as
logically and reasonably arising from the accident based upon the social convention – then it was
included in nuclear damage.” 131 Some damage was difficult to identify due to their ongoing
character (e.g. evacuation or mental anguish – up to what point in time must the victims becompensated?). Another issue was to determine how the compensation must be calculated(i.e. how much money should be paid for each damage). As a general principle, “compensation of
the actual costs incurred is made for evacuation expenses and the like, for example, based on
certification thereof. However, given that the victims of the accident number several tens of
thousands, and given the need for urgent relief, methods could be considered such as allowing areasonably calculated fixed amount of compensation. […] If it were proven that evacuation
expenses or the like were incurred in excess of this fixed amount, then the amount of

126 See Article 13 of the Act on Liability for Nuclear Damage, 2010 (Official Gazette of the Republic ofSlovenia – International Treaties, No. 77/10, 2010) (2010 Act on Liability for Nuclear Damage).
127 Act on Compensation for Nuclear Damage, as amended (Act No. 147 of 1961, as amended by Act No. 19
of 17 April 2009).
128 For more information on the Reconciliation Committee for Nuclear Damage Compensation, see
Nomura, T. et al. (2012), “Japan’s nuclear liability system”, in NEA (ed.), Japan’s Compensation System for
Nuclear Damage: As Related to the TEPCO Fukushima Daiichi Nuclear Accident, OECD Publishing, Paris,
pp. 22-24.
129 For the texts of the Guidelines, see NEA (2012), Japan’s Compensation System for Nuclear Damage: As Related
to the TEPCO Fukushima Daiichi Nuclear Accident, OECD Publishing, Paris, pp. 89-183.
130 “Nuclear damage” is defined in the Compensation Act as any damage “caused by the effects of thefission process of nuclear fuel, or of the radiation from nuclear fuel, etc., or of the toxic nature of suchmaterials […].”
131 See “Preliminary Guidelines on Determination of the Scope of Nuclear Damage resulting from the
Accident at the Tokyo Electric Power Company Fukushima Daiichi and Daini Nuclear Power Plants”, in
NEA (2012), Japan’s Compensation System for Nuclear Damage: As Related to the TEPCO Fukushima Daiichi
Nuclear Accident, OECD Publishing, Paris, pp. 89-101.

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compensation could be increased to an extent that is necessary and reasonable.” 132 Depending on
the type of damage, the Guidelines provide for a formula or approach to calculate thecompensation, or determine the lump sums to be paid.
The three Preliminary Guidelines issued on 28 April 2011 were supplemented on 31 May
2011 by the Secondary Guidelines on Determination of the Scope of Nuclear Damage in order toprovide even further detail regarding nuclear damage to be compensated. On 20 June 2011, theSupplement to Secondary Guidelines was released.
As an example of the content of the Guidelines, the Guideline concerning the damage
suffered due to government instructions to evacuate specifies (i) the affected areas, which
comprise the evacuation areas, the in-house evacuation areas, the voluntary evacuation areas,etc.; and (ii) the evacuees entitled to compensation, who are those individuals who were in an
affected area at a certain period of time, some individuals who were outside of an affected area,etc. People who voluntarily evacuated from areas not subject to evacuation orders were also
entitled to compensation as it was considered that it was reasonable for them to evacuate dueto the lack of information and communication regarding the nuclear incident. The type of
expenses to be compensated are quite similar for the different types of damage, including therumour-related damage. 133 As an example, the expenses to be compensated for damage relating
to government instructions to evacuate are as follows:•

examination expenses of persons and property;•

evacuation expenses;•

temporary access expenses;•

homecoming expenses;•

injury or death;•damage for mental anguish;•business damage;•damage resulting from incapacity to work; and•loss or reduction of property value.

TEPCO received over 2.7 million claims for compensation as of December 2016. 134 Among them,
99.2% were directly solved between TEPCO and the victims, 0.78% were resolved before the ADR
Centre and only 0.01% were submitted before the courts. The fact that most of the claims weredirectly settled between TEPCO and the victims based on the Guidelines demonstrated that
although such Guidelines are not legally binding, they were accepted by all parties as detailed
recommendations issued by independent and objective experts and allowed a quick and efficient
settlement of claims between the victims and the operator.

132 Ibid.
133 The Secondary Guidelines define “rumour-related” as damage referring to “concern about the risk ofcontamination with radioactive material in relation to products or services, due to facts that are widely
known through media reports, leading consumers or trading partners to refrain from purchasing the
product or service, or stop trading in the service or product, resulting in damage. […] The expression
so-called ‘rumour-related’ damage is interpreted in various ways by different people, and is sometimes
used to mean damage arising from psychological concern that induces customers or trading partners
to avoid purchasing/trading in a product or service due to worry about the risk, even though there is norisk due to radioactive material or the like at all. However, when related to a nuclear accident such as
the accident, at the very least it should be regarded as an adverse reaction by the market in order toavoid the risk of contamination with radioactive material, which is not necessarily clear scientifically,
and consequently there is eligibility for compensation as nuclear damage where such avoidance
behaviour can be said to be reasonable.” Ibid., pp. 110-111.
134 As of December 2021, TEPCO received almost 3 million applications. For more information, see TEPCO(2023), Records of Applications and Payouts for compensation of Nuclear Damage, www.tepco.co.jp/en/hd/
responsibility/revitalization/pdf/comp_result-e.pdf (accessed 31 Aug. 2023).

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Prof. Monika Hinteregger, Institute of Civil Law, Foreign and International Private Law, KarlFranzens-University of Graz, provided an example of national legislation on compensation of
nuclear damage. 135 The Austrian Federal Act on Civil Liability for Damages Caused byRadioactivity 136 (AtomHG) reviewed the principles governing liability for damage caused byionising radiation. The AtomHG governs civil liability for damage to persons or property byionising radiation from the operation of nuclear installations, the transport of radioactive material
and the handling of radionuclides. The AtomHG replaced the 1964 Law on Civil Liability for
Nuclear Damage (Atomhaftpflichtgesetz) 137 and entered into force on 1 January 1999. Since there
are no nuclear installations in Austria, the AtomHG focuses on the possibility for Austrian citizens
to sue in Austria for nuclear damage suffered in Austria, rather than on the distribution of damage
in case of a nuclear accident with transboundary effects.
The AtomHG covers two areas of liability: “liability for damage caused by radiation from
nuclear plants and nuclear material and liability for damage caused by radiation fromradionuclides. […] [The] [l]iable persons are the operator of a nuclear plant, the carrier of nuclear
substances and the holder of radionuclides. The liability imposed on the operator of a nuclear
plant and the carrier of nuclear material is unlimited, is irrespective of fault, and does not dependon the occurrence of a nuclear incident. […] The operator of a nuclear plant is the holder of thelicense and any other person who is entitled to control the operation of the nuclear plant and who
actually derives or is at least in the factual or legal position to derive its operating profits.”138 This
rule allows the victims of a nuclear incident to pierce the corporate veil, if necessary. In addition,
victims can sue the provider of services or goods, or a public authority, but only on fault-based
liability and subject to the subsidiarity principle.
The right to sue the supplier is restricted, however, as “[t]he action will be dismissed if the
defendant can prove that an action against the operator will lead within a reasonable period oftime to a decision, that this decision can be enforced, and that there are sufficient funds available
to ensure compensation on behalf of the operator. If this assumption proves false, the case against
the supplier can be reopened. This provision is intended to make sure that responsibility for
nuclear damage stays primarily with the operator, who is in the best position to prevent thedamage and to provide insurance if damage occurs.” 139 Consequently, the operator does not havea right of recourse against any other liable person, unless damage was caused by an act oromission done with the intent of causing harm, or if the right of recourse is expressly provided forby contract.
There is no exclusive jurisdiction of the installation state for nuclear damage in the AtomHG.
Victims are entitled to “bring the action or the motion for a temporary injunction both before
the court in the jurisdiction of which the damage has been caused, as well as before the courtin the jurisdiction of which the damage has occurred. Claims concerning preventive measures
can also be brought before the court where the preventive measures were performed. One main
goal of the [AtomHG] is to make sure that if nuclear damage, though caused in a foreign state,occurs in Austrian territory, an Austrian court will have jurisdiction and the Austrian law will
be applicable. […] However, if nuclear damage has occurred in a foreign territory the situation
is different. If Austrian law is applicable – a fact that is determined by the private internationallaw of the state that has jurisdiction – the plaintiff will only be able to benefit from the Austrian
law insofar as his or her national law would provide for compensation as well. […] The main
target of this provision, apart from the wish of giving an incentive for other states to grant the

135 For more information on Austrian legislation on compensation for nuclear damage, see Hinteregger M.
(2006), “The New Austrian Act on Third Party Liability for Nuclear Damage”, Denver Journal of International
Law & Policy, Vol. 35, No.1.
136 Federal Act on Civil Liability for Damage Caused by Radioactivity, as amended, 1998 (BGBl. I
No. 170/1998) (AtomHG).
137 Bundesgesetz vom 29 April 1964 über die Haftung für nukleare Schäden (Atomhaftpflichtgesetz), (BGBl.
No. 117/1964). This law was substantially amended by Bundesgesetz Erweiterte Wertgrenzen-Novelle
Bundesgesetzblatt Teil I (BGBl. I No. 140/1997), which entered into force on 1 July 1998.
138 Hinteregger M. (2006), supra note 135, p.196.
139 Ibid., pp. 197-198.

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same benefits as the Austrian law, is to protect the Austrian suppliers of nuclear plants, as they
are among the very few suppliers in the world who, in future, will not be protected by legal
channelling.” 140
Regarding the “nuclear damage” itself, the AtomHG extended this term compared to the
Atomhaftpflichtgesetz and, according to the concept of nuclear damage as provided by the revised
nuclear liability conventions, new categories of damage, such as environmental damage or costsof preventive measures, were introduced. The following heads of damage are covered by thedefinition of “nuclear damage” according to the AtomHG:•

loss of life and personal injury (including loss of income, medical expenses comprisingexamination expenses, as well as pain and suffering); 141•loss of property or damage to property 142 [including: (i) decontamination costs; and(ii) costs of measures of reinstatement for environmental damage. There is however nocompensation for “pure” environmental losses, such as natural resources damage]; 143•

costs of preventive measures; 144 and•loss of income and non-economic loss. 145

The operator’s liability under AtomHG does not cover damage to the nuclear installation
itself and to any other nuclear installation situated on the same site, or to any property on thesite of the installation which is used or was used in connection with that installation. The carrier
shall not be liable for damage to the means of transport used to transport the nuclear substances
involved in a nuclear incident. 146
Finally, […] “personal injury due to nuclear radiation ranges from acute radiation exposure, toonly statistically registered damage, to genetic damage which will only come to bear by future
generations. If radiation does not immediately lead to a specific radiation disease, the person
affected by radiation will be in a difficult position to establish the causal link. To ease the burdenof proof in such cases, Section 12(1) [of the AtomHG] establishes a presumption of causality. If an
injured person can submit reasonable evidence of having been physically exposed to nuclear
radiation originating from a nuclear plant, from nuclear material or radionuclides, it will be

140 Ibid., p.200.
141 Section 12 of the Atomhaftpflichtgesetz granted compensation for pain and suffering only on thecondition of long infirmity. Ibid., p.198.
142 Pursuant to Section 11(1) of the AtomHG, compensation for loss of life or personal injury and loss ofproperty or damage to property shall be regulated by the general provisions of tort law. The person who
has suffered such loss or damage is also entitled to claim economic loss arising from these damages. Ibid.
143 As further explained in Hinteregger M. (2006), supra note 135, “If the damage to property presents asignificant impairment of the environment, costs of measures of reinstatement are to be reimbursed,
even if these costs exceed the market value of the impaired good. The plaintiff may ask for advancepayment. The amount exceeding the market value of the impaired good, however, has to be refunded
if restoration to the original condition is not performed within a reasonable amount of time.
Impairment of the environment that is not part of the damage to property does not entitle a victim todamages.” Ibid., pp. 198-199.
144 Liability for nuclear damage also includes the costs of preventive measures taken to remove an
imminent threat of causing damage, provided that such measures are reasonable. The entitlement tothis claim lies with the person who actually has paid the costs. Ibid., p.199.
145 Other loss or damage caused by preventive measures, as well as loss of income deriving from an economic
interest in any use or enjoyment of the environment, incurred as a result of a significant impairment ofthat environment, and any other economic loss, other than any caused by the impairment of theenvironment “are only recoverable if that damage can be classified as loss of income. Even then, the claim
is limited in amount. Together with compensation for nonpecuniary damage, pursuant to section 11,
subsection 3 [of the AtomHG], the amount must not exceed ATS 560 000 (approximately 40 000 Euro) perperson. Nonpecuniary damage will be awarded if a person, due to preventive measures or radioactive
contamination, is forced to undergo a radical and unwanted change of life, for example loss ofaccommodation, job or business.” Ibid.
146 Ibid., p.196.

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presumed that the injury was caused by nuclear radiation, provided that nuclear radiation is
known to be a cause of such damage. The presumption can be rebutted by the defendant by
proving that it is probable that the damage was not caused by nuclear radiation. For the rebuttal
it would be sufficient to show that in the case under consideration other causes were moreprobable than the nuclear radiation. The presumption of causality cannot be applied by a patient
if radionuclides were used for the purpose of medical treatment.” 147
As a conclusion, the Austrian nuclear law differs from the basic principles set forth in the
nuclear liability conventions (apart from the principle of strict liability with mandatory
insurance), and more specifically:•

there are no grounds for exoneration of a nuclear operator from nuclear liability;•

the operator’s liability is unlimited in amount; however, the mandatory insurance
coverage is limited and there is a possibility of “direct action” against the insurer. The
grounds for exoneration provided in the nuclear liability conventions (i.e. damage caused
by a nuclear incident directly due to an act of armed conflict, hostilities, civil war) apply
to the insurance coverage (i.e. they are excluded from the scope of the insurance policies);•

there is no legal channelling, but rather a specific kind of economic channelling, wherea victim can sue the operator on non-fault basis, and the provider of services or goods,
or a public authority, on fault basis and subject to the subsidiarity principle;•

there is no exclusive jurisdiction of the installation state; if nuclear damage is sufferedin Austria, the Austrian law applies regardless of the place where a nuclear incident
occurred;•the definition of nuclear damage follows general tort law principles; and•there is a presumption of proof of causality for personal injury in case of a nuclear incident.

Although the Austrian Parliament has decided not to be a part of the international nuclear
liability regimes for the moment, it demonstrated its interest in the further development of theinternational nuclear liability system. According to Section 30 of the AtomHG, the federal
government is obliged to report regularly to Parliament on the development of the international
instruments on nuclear liability. In a simultaneously adopted resolution, Parliament holds out
the prospect of revising its decision if the international system of nuclear liability improves tosuch an extent that it is able to ensure adequate compensation for Austrian citizens for nuclear
damage. For that purpose, the federal government is further requested to continue participating
actively in international negotiations in order to support the development of this system.

Determining the damage to be compensated: How detailed is detailed enough?
Mr Will Morris, Underwriting Manager, Nuclear Risk Insurers Ltd., stressed that determining
the damage to be compensated in the event of a nuclear incident may be very lengthy, inparticular because of claims that may take years or decades to become apparent (e.g. latentdisease), but also due to litigations and appeals, which can add time to the process. Changes inlaw can lead to additional causes of action and increase the amount of damage, as well as create
further challenges to the insurance industry, such as: class action litigation; “no-win no-fee”
agreements and contingent fees; jury trials; “deep pocket” syndrome (if people know that there
is an insurance in place, they may tend to sue the liable person before courts); and potential“stacking” of policy limits over several years. All these aspects create uncertainty for insurers interms of: (i) pricing – the more uncertainty, the more difficult (and expensive) the price wouldbe; (ii) reserving – when uncertainty around number of losses and time frame leads to “incurred
but not reported” claims (i.e. the claims that might happen but with no certainty); and(iii) capital – when more uncertainty requires higher capital reserves.

147 Ibid., p. 200.

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Insurers use a number of methods to manage this uncertainty: by having a cap on the amountpayable per year and per lifetime; by managing exposure to costs as well as damages; by using
deductibles to encourage risk management; by aggregating claims from one occurrence into one
year; by using triggers (i.e. events that activate coverage under a particular insurance policy) todefine exposure. The common types of triggers are: (i) occurrence (i.e. if the loss occurs in aparticular year) and (ii) claims-made (i.e. if a claim occurs in a particular year). However, there isan extensive litigation regarding “triggers”, and more specifically regarding the question of whensomething can be considered to “occur” (e.g. on first exposure to the injury-causing conditions?
On first manifestation of the injury, or when the injury becomes known? On a continuous basis
during the entire period, thereby triggering all policies covering all years during that period?).
The triggers that may be used by insurers in the Revised Paris Convention (e.g. Articles 1, 3
and 8 of the Convention) 148 seem to be not clear enough in order for them to deal with thisuncertainty. Regarding nuclear legislation in the United Kingdom, 149 the 2016 Nuclear
Installations Order clarified the term “economic loss” which was already covered by the existinglegislation, and provided new heads of damage (e.g. measures of reinstatement, loss of income,preventive measures) which assist insurers by providing further detail on the extent of damage
to be compensated and therefore removes some uncertainty. There are also certain triggers
available for the UK insurers in the 1965 Nuclear Installations Act, according to which thenuclear site licensee has the duty to ensure that no occurrence takes place on the licensed site
involving nuclear matter during the period of the licensee’s responsibility causing injury to any
person. 150 The revised NIA 65 provides some definitions of “occurrence” 151 (e.g. “if nuclear
matter is in a place at a particular time as a consequence of an occurrence […] neither thepresence of the matter in that place at that time nor any effect that the matter produces at thattime is to be treated as a separate occurrence falling within any of those provisions”), but does
not give a full definition, which raises certain challenges, such as the absence of the dividing
line between accidental occurrences and emissions during the normal course of operation(e.g. “intended emissions”), and a clear understanding of the occurrence triggers.

148 Article 1(a)(i) of the Revised Paris Convention provides that a “nuclear incident” means any occurrence or
series of occurrences having the same origin which causes nuclear damage; Article 1(a)(vii) of theConvention states that “'nuclear damage' means […] loss of life or personal injury […], to the extent thatthe loss or damage arises out of or results from ionising radiation emitted by a source of radiation inside
a nuclear installation.” Article 3 of the Convention mentions that “the operator of a nuclear installation
shall be liable […] for nuclear damage […] upon proof that such damage was caused by a nuclear incident
in such installation […].” Article 8 of the Convention provides that “the right of compensation shall be
subject to prescription […] with respect to personal injury […] thirty years from the date of the nuclear
incident.”
149 The UK Nuclear Installations Act 1965 (c. 57), as amended (NIA 65) implemented the Paris Convention into
the national legal system. With regard to the Revised Paris Convention and the Revised Brussels
Supplementary Convention, the United Kingdom had then an extensive consultation process called“Implementation of changes to the Paris and Brussels Supplementary Conventions on nuclear third party
liability – a public consultation” (for more information see www.gov.uk/government/consultations/com
pensating-victims-of-nuclear-accidents) (accessed 31 Aug. 2023). It resulted in the adoption of the Nuclear
Installations (Liability for Damage) Order 2016 (SI 2016 No. 562) and several revisions to the NIA 65.
150 Section 7(1) of the NIA 65 stipulates that: “[…] where a nuclear site licence has been granted in respectof a site, the licensee has the duties set out in subsections (1A) […].” Subsection (1A) provides that “it isthe duty of the licensee to secure that no occurrence involving nuclear matter falling within subsection(1B) causes: (a) injury to any person […].” Subsection (1B) states that “the occurrences referred to in
subsection (1A) are: (a) any occurrence on the licensed site involving nuclear matter during the periodof the licensee’s responsibility […].”
151 This definition initially comes from a court decision Magnohard Limited and Others v the United Kingdom
Atomic Energy Authority and the Scottish Environmental Protection Agency [2004 SC 247, 2003 SLT 1083.9],
holding that an occurrence took place every time nuclear material was disturbed and moved to a newplace.

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Discussion session
A question arose as to whether, in order to ensure the applicability of the new heads of damage
according to the revised nuclear liability conventions (i.e. the Revised Paris Convention, theRevised Vienna Convention and the CSC), there is a need to adopt a specific implementing law instates with monistic legal systems (i.e. legal systems where international law does not need to betransposed into national law because the act of ratifying an international treaty immediately
incorporates that treaty into national law). With regard to the United States, in case of a nuclear
incident outside the United States, the US courts would have jurisdiction according to the CSC
with no need for an implementing law, as the CSC Annex is directly applicable at the national
level. However, regarding the definition of “nuclear damage”, the US courts will have to interpretthe heads of damage as provided in the CSC to determine their extent. In Germany, the situation
is similar: the German legislation implementing the Revised Paris Convention does not containany specific nuclear liability provisions on the new heads of damage. They will therefore beawarded by a competent court on the basis of general civil law rules.
A hypothetical scenario was discussed in which a nuclear incident occurs in the Slovak
Republic, with transboundary damage in Austria. In this regard, a question was raised on how
potential differences in court decisions rendered in both Austria and the Slovak Republic would
be dealt with. It was noted that in the absence of treaty relations, victims in Austria could sue
whoever they want to sue in Austria. The main question is to know whether, in case there areno valuable assets of the operator liable in Austria, a decision of Austrian courts could berecognised and enforced in the Slovak Republic. Taking into account that there are no treaty
relations between the two countries, the principle of exclusivity of jurisdiction provided in the
nuclear liability conventions would not apply, and therefore the Austrian victims would havethe right to sue the operator liable in Austria or in the Slovak Republic. In addition, according to
the EU rules on recognition and enforcement of judgements, 152 an Austrian judgement would
be enforced in the Slovak Republic. However, no consensus was reached regarding the right for
the Austrian victims to sue the liable Slovakian operator. Some considered that such right may
depend on whether the Slovakian law and the nuclear liability convention to which it is party
allow for compensation of nuclear damage suffered outside the territory of the Slovak Republic.
For example, the geographical scope of application of the Vienna Convention (unlike thegeographical scope of the Revised Vienna Convention) is unspecified and does not clearlystipulate whether the Vienna Convention applies to damage suffered in the territories of noncontracting states. 153 Therefore, whether the Austrian victims can sue the liable operator in the
Slovak Republic may also depend on the Slovakian law. Others considered that, if nuclear
damage is suffered in Austria, the Austrian (and not Slovakian) law would apply. Therefore, thisis only a question of enforcement of an Austrian court decision within the EU according to theBrussels I bis Regulation. 154
It was concluded that the issue of the definition of “nuclear damage” remains a complex
topic – even though the revised nuclear liability conventions provide more certainty regarding
to the heads of damage to be compensated, it is ultimately up to the national law and national
courts to decide on the extent of damage to be compensated. However, going to court to decideon the extent of damage to be compensated may be to the detriment of victims, as the wholeprocess could take a lot of time and money. To remedy this situation, the possibility of creating
a commission in charge of working on a detailed definition of nuclear damage in the event of a
nuclear incident (like in Japan) could help. Finally, once a nuclear incident does occur, victims
would need to have money with no delay; therefore, national legislation should provide for
emergency payment to compensate at least certain types of nuclear damage (e.g. evacuation
costs) right after the accident.

152 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),
Official Journal of the European Union (OJ) L 351/1 (20 Dec. 2012) (the Brussels I bis Regulation).
153 Secretariat note: On the geographical scope of application of the nuclear liability conventions, see
Session 3 - Proving the causal link of this report.
154 This matter was discussed later on at the workshop during Session 6 – Resolving disputes of this report.

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SESSION 2. DETERMINING THE DAMAGE TO BE COMPENSATED

Overview of responses to the questionnaire
Definition of nuclear damage
The first question related to the existence of a definition of nuclear damage under the national
legislation of the responding country. In addition, in cases where the responding country confirms
the existence of such a definition under its domestic legislation, it was also invited to clarify
whether this definition would reflect the one provided in the international nuclear liability
conventions to which it is party (if applicable). Of the 29 responding countries, 14 countries
reported that they do not provide for a definition of nuclear damage under their national
legislation. This is particularly true for states that recognise, in light of their domestic legislation,
the direct applicability of several of the provisions in the nuclear liability conventions (seeFigure 12.a). Examples:•

China: There is no definition of nuclear damage under the national legislation. Section 2of the State Council's Reply on the Civil Liability for Damage Arising out of Nuclear
Accident – Guo Han [2007 No.64] mentions only that “(t)he operators shall be liable tocompensate for personal casualties, property losses or environmental damages arisingout of nuclear accidents”; 155•

Germany: The relevant provisions of both the Paris Convention and the Revised Paris
Convention would be directly applicable;•

Slovak Republic: There is no definition of nuclear damage in the national legislation.
Section 2 of the Act No. 54/2015 Coll. expressly states that Article I.1.k of the Vienna
Convention, which provides for the definition of nuclear damage, will apply. Further,
Section 3(1) of the Act specifies that “nuclear damage” means damage resulting andcausally linked to a nuclear incident in accordance with the provisions of aninternational treaty (i.e. the Vienna Convention); 156•

United States: The Price-Anderson Act does not contain an express definition of nuclear
damage. However, application of this Act would reflect and be compliant with thedefinition of “nuclear damage” in the CSC Annex. Under the Price-Anderson Act, thelaw to be applied is the substantive law of the state in which the nuclear incident
occurred, rather than the federal substantive law. 157 Accordingly, certain terms or
determinations, such as “nuclear damage”, are not defined in the Act.

In all, 15 responding countries confirmed that their national legislation includes a definitionof nuclear damage (see Figure 12.b). Examples:•

Hungary: Definition of nuclear damage provided in the national legislation is based
upon the definition in the Vienna Convention; 158•

India: Definition of nuclear damage in the national legislation corresponds to thedefinition given under the CSC; 159•

Sweden: The national legislation includes a definition of nuclear damage based on thedefinition provided in the Paris Convention. 160

155 The text of the State Council Official Reply to Questions on the Liabilities of Compensation for Damages
Resulting from Nuclear Accidents – Guo Han [2007] No. 64 (Guo Han [2007] No. 64) is available at:www.oecd-nea.org/law/legislation/china-guo-han-2007-no64-en.pdf (accessed 31 Aug. 2023).
156 Act No. 54/2015 Coll. of 19 March 2015 on Civil Liability for Nuclear Damage and on its Financial
Coverage and on changes and amendments to certain laws, 2015 (Zbierka zákonov [The Collection ofLaws of the Slovak Republic] no. 18 of 28 March 2015) (Act No. 54/2015 Coll.).
157 Price-Anderson Act, supra note 39.
158 See Article 2(23) of the Act CXVI of 1996 on Atomic Energy (1996 Act on Atomic Energy).
159 See Section 1(g) of the Civil Liability for Nuclear Damage Act, 2010 (No. 38 of 2010) (CLND Act).
160 See Section 7 of the Act on Liability and Compensation for Nuclear Incidents, 2010 (SFS 2010:950).

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Figure 12.a. Does your national legislation provide fora definition of “nuclear damage”?

48%

YES
52%

NO

Source: NEA.

Figure 12.b. Does the definition of "nuclear damage" under the national law reflect the one
provided in any of the international nuclear liability conventions?

4
3

3

3

1
RPC

VC

RVC

1
CSC

NO

N/A

Source: NEA.

A definition of heads of damage more detailed than those provided under the international
nuclear liability convention(s)This question concerned the relevance of having a definition of heads of damage under national
law that would be more detailed than those provided under the international nuclear liability
conventions. A large majority of the responding countries reported that a larger definition is notprovided under their domestic legislation. Only four countries (i.e. Austria, Canada, Czechia andthe Netherlands) replied that their national legal system provides for definitions of heads ofdamage entitling victims to receive compensation which are more detailed than those provided
under the international nuclear liability conventions (see Figure 13), and more specifically:•

Austria: All damage to persons and property is subject to compensation under the civil
law, in accordance with the relevant provisions under the national nuclear legislation.
In principle, all heads of damage must be compensated; 161•

Canada: The psychological trauma linked to bodily injury is recognised as asupplementary head of damage eventually leading to compensation claims; 162

161 See Section 11 of the AtomHG, supra note 136.
162 See Section 14 and following of the NLCA, supra note 124.

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SESSION 2. DETERMINING THE DAMAGE TO BE COMPENSATED•

Czechia: Beyond the heads of damage provided in the Vienna Convention, relevant
national legislation covers damage arising in the form of costs of interventions
necessary to prevent or reduce exposure or restore the original or equivalent state of
the environment, if these interventions were made necessary by a nuclear event andthe nature of the damage thus permits; 163•

Netherlands: Definition of damage under the national civil law is construed on the basisof three provisions that provide for more detailed definition of nuclear damage
compared to the one provided under the Paris Convention. 164

Figure 13. Does your national legal system provide for definition(s) of heads of damage
that would entitle victims to receive compensation that are more detailed
than those provided under the international nuclear liability convention(s)?
10%

14%

YES
NO
N/A

76%

Source: NEA.

Designation of an authority/commission to provide for a mechanism to further specify
which damage shall be compensated
Of the 29 responding countries, 8 countries confirmed the existence of such an authority orcommission under their national legislation (Austria, Canada, India, Japan, the Philippines,
Romania, Slovenia and Ukraine, see Figure 14). Examples:•

Austria: Under the AtomHG, the Court of First Instance will be the competent jurisdiction
for adjudication of claims and applications for interim injunctions under the Act; 165•

Canada: Establishment, upon decision of the government, of a Nuclear Claims Tribunal
is provided under the NLCA, creating an ad hoc jurisdiction to examine and adjudicate
claims for damage arising from the nuclear incident as expeditiously as thecircumstances and considerations of fairness permit.

Establishment of a special commission is provided in the national legislation of some other
responding countries. Differences in the structure of such bodies exist between national
legislation. Examples:•India: the establishment of a Claims Commissioner is provided under its domestic
legislation; 166

163 See Article 34 of the Act No. 18/1997 Coll. of 24 January 1997 on the Peaceful Uses of Nuclear Energy andIonising Radiation and on Amendments and Alterations to Some Acts.
164 See Articles 6:95, 6:96 and 6:106 of the Dutch Civil Code.
165 See Section 22 of the AtomHG, supra note 136.
166 See Section 9 of the CLND Act, supra note 159.

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SESSION 2. DETERMINING THE DAMAGE TO BE COMPENSATED•Romania: The Romanian National Commission for the Control of Nuclear Activities(CNCAN) may set up a special commission to determine the cause and consequencesof the nuclear occurrence; examine and assess nuclear damage; issue
recommendations as to the compensation, assistance and reconstruction measures;and issue recommendations as to the improvements to the nuclear installation in
respect to nuclear and radiation emission safety;•

Slovenia: an ad hoc Commission for the Assessment of Nuclear Damage will beestablished to prepare an assessment within six months from the date of the nuclear
incident that will propose the amount, the manner and the dynamics of the drawing offunds. 167 Members of the Commission shall be appointed by the government upon
proposal of the government (50% of the members); the insurers (25% of the members)
and the operator (25% of the members).

Some countries reported that equivalent mechanisms exist under their national legislation
without necessarily taking the form of an authority or commission. Examples:•

Belgium: The King will set up the criteria for the equitable distribution of funds available
for damage compensation in the event that they do not sufficiently cover all the damage
suffered; 168•

United States: In certain situations, the competent US District Court may appoint a
special caseload management panel to function in a way that would provide for theequitable, prompt and efficient resolution of claims arising out of a nuclear incident. 169

Figure 14. Does your national legal system designate an authority/commission to provide
for a mechanism to further specify which damage shall be compensated?
7%
28%
YES
NO
N/A
65%

Source: NEA.

Extent of the coverage of damage (direct-indirect damage or both)In all, 19 responding countries confirmed that their national legislation provides for thecoverage of both indirect and direct damage. On the contrary, 8 countries reported that theirdomestic law covers direct damage only (see Figure 15).

167 See Article 13 of the 2010 Act on Liability for Nuclear Damage, supra note 126.
168 See Law of 22 July 1985 on civil liability in the field of nuclear energy (Belgian Official Journal [Moniteur
belge] of 31 August 1985, n° 1985011261) (1985 Law).
169 See Article 170.n.(3) of the United States Atomic Energy Act of 1954, as amended, 42 USC 2011 et seq.

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SESSION 2. DETERMINING THE DAMAGE TO BE COMPENSATED

Figure 15. In accordance with your national legislation, for which of the following typesof damage would victims of a nuclear accident be compensated?
19

80
Direct damage only

Indirect damage only

2
Both

N/A

Source: NEA.

Among the countries whose national legislation covers both types of damage, indirect
damage may not be explicitly defined, but its content may be associated to:a) General provisions of tort law. Examples:•

Japan: The concept of “indirect damage” is not explicitly defined in the Civil Code, 170 but
it may be taken out of the definition of “torts” provided in the Code;•Türkiye: There is no legal or judicial definition of the term “indirect damage”. However,
the relevant provisions of the Turkish Code of Obligations No. 6098 recognise indirect
damage such as losses suffered by persons deprived of their means of support as a resultof death and loss of earnings, losses resulting from total or partial inability to work andlosses resulting from the detriment inflicted on economic future in cases of bodily
harm. 171b) Relevant provisions of the international nuclear liability convention, to which the country
in question is party. Examples:•

Belgium and Slovenia: Indirect damage is covered under the national legislation inreference to the relevant provisions of the Revised Paris Convention;•

India: Definition of indirect damage is inbuilt in the definition of “nuclear damage”
provided in the relevant domestic legislation, which is similar to the definition provided
in the CSC. 172

Regarding the type of damage that may be included in the definition of indirect damage, on
the basis of the responses received, it may concern:a) Damage related to loss of life or personal injury. As an example:•

Germany: According to the national law, compensation may cover: (i) reduction of theearning capacity, compensation to surviving dependants; (ii) monetary compensation
for the mental suffering in the case of loss of life; or even (iii) reimbursement of the costsof treatment or financial loss because of temporary or permanent loss of earning
capacity in the case of personal injury. 173

170 Japanese Civil Code, 1896 (Act No. 89 of 27 Apr. 1896).
171 Turkish Code of Obligations, Law No. 6098, 2011 (Official Gazette no. 27836 of 4 February 2011).
172 See Section 1(g) of the CLND Act, supra note 159.
173 See Sections 28-30 of the Atomic Energy Act, as amended, 1959 (BGBl. I 1959 S. 814) (Atomgesetz or AtG).

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SESSION 2. DETERMINING THE DAMAGE TO BE COMPENSATEDb) Damage related to property. Examples:•

Finland: Compensation may cover claims for: (i) costs or repair of the damage object;(ii) other costs arising from the damage; (iii) reduction in values of an object that has
been destroyed or lost; or (iv) loss of income and maintenance; 174•

Hungary: According to the Act on Civil Code, “under the principle of the right to fullcompensation the tortfeasor shall cover: a) any depreciation in value of the property of
the aggrieved party; b) any pecuniary advantage lost; and c) the costs necessary for the
mitigation or elimination of the financial losses sustained by the aggrieved party”. 175

System of assessment of the extent of compensation to be paid
The system to assess the extent of compensation to be paid would make it possible to determine
whether the nuclear damage caused by a nuclear accident on the territory of a country appears
to exceed or is likely to exceed a certain threshold, or to provide the operator, the insurer(s), thecompetent court and/or the installation state with have a rough estimate of the compensation
to be paid.
Of the 29 responding countries, 8 confirmed that their legislation provides for such a systemof assessment (see Figure 16). However, the authority in charge of the assessment may varyfrom country to country. Examples:a) Some countries reported that the competent court will be responsible for making such a
decision. Examples:•

Italy: In the case of multiple claims and when it is expected that the amount ofcompensation may exceed the financial guarantees referred to in Articles 19 and 20 of
the Law 1860 of 31 December 1962 on the peaceful use of nuclear energy, the Presidentof the Court shall order insolvency proceedings to take place and appoint a judge tooversee said proceedings. If it is found that the said financial guarantees are insufficient,
the court shall proportionally reduce the amount for each injured party; 176•

United States: The competent court would impose temporary restrictions on the
distribution of compensation and implement an equitable plan of distribution for all
claimants, where it appears that the statutory liability limit may be exceeded. 177b) Instead, for some countries, it is within the tasks of the public authorities to proceed to thisassessment. Examples:•

Canada: Determination of the extent of compensation would be made prior to therecommendation made to the government to establish a Nuclear Claims Tribunal.
Following the establishment of the Tribunal, the competent Minister would be required
to table a report on the costs and extent of damage in Parliament; 178

174 See Chapter 5, Section 5 of the Tort Liability Act No. 412/1974 of 31 May 1974 (vahingonkorvauslaki,skadesténdslagen Act No. 412/1974).
175 See Section 6:522 of the Act V/2013 on the Civil Code, 2013 (Official Gazette of Hungary [Magyar Közlöny]of 26 Feb. 2013, vol. 31, pp.2382-2663).
176 See Article 25 of the Law on the peaceful use of nuclear energy adopted on 31 December 1962 (Official
Journal, GU Serie Generale n.27 of 30 Jan. 1963) (Law of 31 December 1962, No. 1860). Secretariat note: The
law for ratification and implementation of the 2004 Protocols to amend the Paris Convention and theBrussels Convention Supplementary to the Paris Convention adopted on 23 July 2020 (Official Journal,
GU Serie Generale n.196 of 6 Aug. 2020) (Law of 23 July 2020, no. 97) does not seem to affect Article 25 of
the Law of 31 December 1962 No.1860.
177 See Section 11.h.h of the United States Atomic Energy Act of 1954, supra note 169.
178 See Section 36 et seq. of the NLCA, supra note 124. For the designation of the Minister, see Section 4 of
the NLCA.

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SESSION 2. DETERMINING THE DAMAGE TO BE COMPENSATED•France: If it appears that, as a result of a nuclear accident, the maximum amounts
available are likely to be insufficient to compensate all damage suffered, a decree adopted
by the Council of Ministers and published within six months of the date of the accident
shall record this exceptional situation and determine the arrangements for distributing
the amounts. The amounts available shall be allocated as follows: (i) priority shall be given
to the compensation of personal injuries in a manner to be determined by analogy withthe legislation on accidents at work; and (ii) the remaining amounts after this firstcompensation, if any, shall be allocated among the victims in proportion to any personal
injury still to be compensated and the other nuclear damage suffered; 179•

United Kingdom: The nuclear licensee of an affected installation is required to notify
the appropriate authority if the claims made in respect of cover for an installation reacha notice level. The notice level is when aggregate claims have reached three fifths(i.e. 60%) of the limit of liability for the category of site. Payment of any claims above
this notice level may only be made in accordance with a direction from the appropriate
authority in respect of any particular claim. 180

Figure 16. Is there a system to assess the extent of compensation to be paid in orderto determine whether the nuclear damage caused by a nuclear accident on
your country’s territory appears to exceed or is likely to exceed a certain threshold?

14%

24%

YES
NO
N/A

62%

Source: NEA.

Designation of an authority to take measures of reinstatement
This question relates to the designation of the authorities entitled to take, and competent toapprove, measures to reinstate or restore damaged or destroyed components of the environment.
The majority of the responding countries confirmed that relevant provisions designating thecompetent authorities exist under their domestic legislation. The responses provided reflect thevariety of stakeholders involved and the necessary co-operation among them.
a) Several countries reported that this type of decisions relevant to measures of reinstatement
would be taken at the level of the central government. Examples:•

Slovenia: Under Article 2 of the Act on Liability for Nuclear Damage, only the costs of
those measures of reinstatement of a polluted environment, which are ordered orapproved by the Ministry responsible for the environment in accordance with the Act

179 See Article L. 597-14 of the French Environmental Code issued by Order No. 2012-6 of 5 January 2012
(Official Journal of the French Republic of 6 Jan. 2012, p. 10).
180 See Section 20 of the NIA 65, supra note 149.

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SESSION 2. DETERMINING THE DAMAGE TO BE COMPENSATED

governing the protection of the environment, will be considered as falling under thedefinition of nuclear damage; 181•

United Kingdom: A qualifying public authority (i.e. the responsible public body or public
office holder), is entitled to take measures of reinstatement. Approval of measures is to
be made by the Secretary of State (or court if the decision is appealed). 182 It should be
noted also that payments for claims for reinstatement measures may also be made inqualifying territories outside the United Kingdom, but such claims must have been
approved by the qualifying territory competent authority. 183b) Some countries highlighted that the competence to decide on measures of reinstatement
may be shared between central and regional authorities depending on the politicalorganisation of the State. Examples:c)•Belgium: Environmental issues (e.g. measures to reinstate damaged or destroyedcomponents of the environment) are under the competence of regional authorities; 184•

Canada: Section 18 of the Nuclear Liability and Compensation Act provides thatreasonable costs of remedial measures that are taken to repair, reduce or mitigate
environmental damage that is caused by a nuclear incident are compensable if themeasures are ordered by an authority acting under federal or provincial legislation
relating to environmental protection. 185

Finally, it should also be noted that under the domestic legislation of some countries,
measures of reinstatement may be taken jointly by the person suffering the nuclear damage
and the competent authorities. As an example:•

Austria: Along with the public authorities, it is possible under its national law that theperson suffering nuclear damage to their property take measures of reinstatement of
the environment, if the person liable is unable or unwilling to restore it to its former
condition. 186

Session 2 – Conclusionsi)

The Paris Convention and the Vienna Convention have similar (but not identical) definitionsof nuclear damage. The new heads of damage (provided in the Revised Paris Convention,
the Revised Vienna Convention and the CSC) are almost identical and were considerednecessary to specify the type of damage and implement the Joint Protocol. Negotiations
proved that countries had different views on the type of nuclear damage to becompensated; therefore, conventions ensure that certain “categories” of damage arecovered, leaving to national courts the task to specify which nuclear damage would becompensated in practice;ii) If the operator or insurer, and the victim disagree on the nuclear damage and/or thecompensation amount, the court may intervene, but victims do not have the time, thefinancial and material means and mental strength to follow that process. Very few states
have provided post-accident solutions to detail nuclear damage and speed up thecompensation process minimising law suits, as is the case in Japan;

181 See Article 2(4) of the 2010 Act on Liability for Nuclear Damage, supra note 126.
182 See Sections 11A and 11B of the NIA 65, supra note 149.
183 Ibid., Schedule 1A.
184 See Article 6(1)(II)(1) of the Special Law on Institutional Reforms of 8 August 1980, 1980 (Belgian Official
Journal of 15 August 1980, n° 1980080801).
185 See Section 18 of the NLCA, supra note 124.
186 See Section 11(2) of the AtomHG, supra note 136.

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SESSION 2. DETERMINING THE DAMAGE TO BE COMPENSATEDiii) The Austrian national law reflects the revised nuclear liability conventions’ heads ofdamage (even though it is not a convention state) and, for some, has detailed their scopeand related compensation;iv) Uncertainty with regard to “nuclear damage” (i.e. when insurance is triggered and relatedcompensation amounts) entails higher insurance premiums to cover the risk incurredby the insurers and reluctance to cover those too uncertain heads of damage. The
Revised Paris Convention and the United Kingdom implementing law provide certainty
and predictability to some extent that has allowed the insurance pool to provide
coverage for all heads of damage of the Revised Paris Convention, except the 10-30 years’prescription period.

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SESSION 3. PROVING THE CAUSAL LINK

Session 3
Proving the causal link

Prof. Vanda Lamm, President of the Section of Economics and Law, Hungarian Academy of
Sciences, member of the NLC Bureau and Chair of Session 3, pointed out that the causal link(i.e. the connection between the cause – such as an act, an omission, an event – and its effects) is
an important issue in law in general. Establishment of a causal link is a crucial question in general
tort, criminal and other branches of law. Establishing a causal link between the nuclear incident
and certain types of damage suffered may be a challenge to victims.

Proving the causal link: Identifying the persons entitled to claim compensation
Ms Fiona Geoffroy, Senior Legal Adviser, Électricité de France (EDF), explained how the persons
entitled to claim compensation for nuclear damage are identified while analysing the aspects
relating to causation and the geographical scope of the nuclear liability conventions.
To demonstrate causation in tort law, the claimants must establish that the loss they havesuffered was caused by the defendant: in most common law systems it is called the “but for” test
(i.e. “but for” the defendant's actions, would the claimant have suffered the loss? If yes, thedefendant is not liable. If no, the defendant is liable). “Causation,” in a personal injury case, makes
the crucial link between a person or company’s behaviour and another person’s injury. Even if a
defendant in a negligence case is careless or reckless, he cannot be held liable for injuring theplaintiff, unless his negligent behaviour caused the injury. In some types of personal injury cases,
however, causation is the centre of the case. For instance, in a strict liability case like those
involving product liability or ultra-hazardous activities, the burden of proof is shifted and theplaintiff only needs to prove that the harmful behaviour or product caused damage.
In the very beginning of the nuclear liability conventions, it was acknowledged that there isa need to go beyond the principle of strict liability to establish a specific regime applicable tonuclear liability. In addition to the basic principles of the special nuclear liability regime(s)already mentioned, the nuclear liability conventions cover: (i) nuclear damage suffered bynatural and legal persons in territories covered by the geographical scope of the relevant
conventions; (ii) caused by nuclear incidents at nuclear installations or in the course of transport;and (iii) during the prescription period provided for in those conventions.
The Paris Convention does not apply to nuclear incidents occurring in the territory of noncontracting states or to damage suffered in such territory, unless the national legislation of theoperator liable otherwise provides. 187 The Brussels Supplementary Convention applies to

187 Article 2 of the Paris Convention states that “This Convention does not apply to nuclear incidents occurringin the territory of non-Contracting States or to damage suffered in such territory, unless otherwise
provided by the legislation of the Contracting Party in whose territory the nuclear installation of theoperator liable is situated, and except in regard to rights referred to in Article 6(e).” Article 23(a) of the Paris
Conventions provides that “This Convention shall apply to the metropolitan territories of the Contracting
Parties.” Paragraph 7 of the Exposé des Motifs of the Paris Convention further specifies that the term “territory”
as used in the Convention is understood to include territorial seas. NEA (1982), Exposé des Motifs of the Paris
Convention, supra note 109. In addition, the NEA Steering Committee Recommendation of 25 April 1968
[NE/M(68)1] mentions that “Signatory countries, in adopting measures to apply the Convention, shouldtake into account that the Paris Convention is applicable to nuclear incidents occurring on the high seas

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SESSION 3. PROVING THE CAUSAL LINK

damage suffered in the territory of contracting parties, on or over the high seas on board a shipor aircraft registered in the territory of a contracting party; or on or over the high seas by anational of a contracting party, provided that, in the case of damage to a ship or an aircraft, theship or aircraft is registered in the territory of a contracting party. 188 The Vienna Convention issilent on the geographical scope of its application. 189 The Joint Protocol extends to states
adhering to it the coverage that is provided under the relevant convention (either the Paris
Convention or the Vienna Convention) to which they are not contracting parties. In creating a“bridge” between the conventions, it also provides that only one of the conventions will beapplicable to a nuclear incident to the exclusion of the other. 190
The Revised Vienna Convention provides that it applies to nuclear damage “wherever
suffered”. 191 However, the legislation of the installation state may exclude from the applicationof the Convention damage suffered in a non-contracting state which, at the time of the nuclear
incident: (a) has a nuclear installation in its territory, or in any maritime zones established by itin accordance with the international law of the sea; and (b) does not afford equivalent reciprocal

or to damage suffered on the high seas.” Another Steering Committee Recommendation of 22 April 1977
[NE/M(71)1] further specifies that “The scope of application of the Paris Convention should be extended bynational legislation, to damage suffered in a Contracting State, or on the high seas on board a ship
registered in the territory of a Contracting State, even if the nuclear incident causing the damage has
occurred in a non-Contracting State”. See NEA (1990), Paris Convention: Decisions, Recommendations,Interpretations, OECD Publishing, Paris. Secretariat note: It is worth noting that this latter Recommendation
became obsolete following the entry into force of the Revised Paris Convention for all contracting parties.
See NEA (2020), Exposé des Motifs of the Paris Convention as amended by the Protocols of 1964, 1982 and 2004,
adopted by the Contracting Parties to the Paris Convention on 18 Nov. 2016, NEA Doc.
NEA/NLC/DOC(2020)1/FINAL (Exposé des Motifs of the Revised Paris Convention) and NEA (n.d.), Paris Convention
on Third Party Liability in the Field of Nuclear Energy – Compilation of the Decisions, Recommendations andInterpretations Concerning the Paris Convention, available at: www.oecd-nea.org/jcms/pl_79153/dricompilation-english (accessed 31 Aug. 2023).
188 See Article 2 of the Brussels Supplementary Convention.
189 Section 2.2.3 of Explanatory Texts of the 1997 Vienna Convention on Civil Liability for Nuclear Damage and the1997 Convention on Supplementary Compensation for Nuclear Damage, further explains that, unlike the Paris
Convention (see Article 2 of the Paris Convention), the Vienna Convention does not expressly state thatits scope is limited to nuclear incidents occurring in the territory of contracting states, or to nuclear
damage suffered in such territory, unless the national legislation of the operator liable so provides. It
further specifies the following: “In respect of the place of a nuclear incident, there can be no doubt that,
under Article II, read in conjunction with the definitions of terms such as ‘operator’ and ‘Installation State’in Article I, the 1963 Vienna Convention principally applies to nuclear incidents occurring in the territoryof Contracting Parties; on the other hand, in the case of incidents occurring in the course of transport ofnuclear material, it follows from the same definitions that the Vienna Convention does apply even to
nuclear incidents occurring outside the territory of a Contracting Party, provided that the installation of
the operator liable is located within such territory; moreover, if that installation is not situated within the
territory of any State, the Convention applies if it is operated by a Contracting Party or under its authority.
[…] As for the place where damage is suffered, the absence of an express limitation of its territorial scope
leaves it open to question whether or not the 1963 Vienna Convention allows for coverage of damage
suffered outside the territory of the Contracting Parties and, in particular, in the territory of nonContracting States under the applicable substantive law, which will usually be the law of the Installation
State. […] The major argument against covering damage suffered outside the territory of the Contracting
Parties is that, with limited insurance funds to call on, adding more claimants would reduce the shareavailable for victims in the Contracting Parties, without reciprocal benefits. On the other hand, damage
outside the territory of Contracting Parties may well be suffered by their nationals or by, or on board, ships
or aircraft flying their flags. Moreover, it may be questioned whether leaving victims in non-Contracting
States without compensation is in line with public international law.” IAEA (2020), The 1997 Vienna
Convention on Civil Liability for Nuclear Damage and the 1997 Convention on Supplementary Compensation for
Nuclear Damage – Explanatory Texts, supra note 110.
190 See Articles II and III of the Joint Protocol.
191 See Article I.A of the Revised Vienna Convention.

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SESSION 3. PROVING THE CAUSAL LINK

benefits”. 192 Therefore, the Revised Vienna Convention opts for the opposite approachcompared to the one provided in the Paris Convention: a state should either join the Vienna
Convention or afford reciprocal benefits if it wishes to avail of coverage.
The Revised Paris Convention states that the Convention applies to nuclear damage sufferedin the territory of a contracting party or a non-contracting state (including its territories andmaritime zones) if: (a) it is a party to the Vienna Convention and the Joint Protocol (on thecondition that the concerned Revised Paris Convention state is also a party to the Joint Protocol);or (b) it has no nuclear installations on its territory at the time of the nuclear incident; or (c) it isany other non-contracting state whose nuclear liability legislation affords equivalent reciprocal
benefits and is based on principles identical to those contained in the Revised Paris Convention(i.e. liability without fault of the operator liable, exclusive liability of the operator or a provision to
the same effect, exclusive jurisdiction of the competent court, equal treatment of all victims of a
nuclear incident, recognition and enforcement of judgements, free transfer of compensation,interest and costs). 193 The Revised Brussels Supplementary Convention does not follow the same
expansion of the geographical scope of the Revised Paris Convention, as the claimants from noncontracting states will not have access to the additional fund established by the Revised Brussels
Supplementary Convention. 194

192 See Article I.A.2 and 3 of the Revised Vienna Convention. Section 2.2.3 of Explanatory Texts of the 1997 Vienna
Convention on Civil Liability for Nuclear Damage and the 1997 Convention on Supplementary Compensation for
Nuclear Damage further explains that, “[…] under Article I A.2, the legislation of the Installation State may
exclude coverage of damage suffered not only (a) in the ‘territory’ of nuclear non-Contracting States but
also (b) in ‘any maritime zones’ established by such States ‘in accordance with the international law of thesea.’ The term ‘territory’ used under (a) can be taken to include a coastal State’s internal and territorial
waters. Therefore, the ‘maritime zones’ referred to under (b) are those zones, such as the continental shelfand the exclusive economic zone (EEZ), which are not subject to a coastal State’s territorial sovereignty
but rather to more limited ‘sovereign rights’ and/or ‘jurisdiction’. In view of the fact that such ‘maritime
zones’ can extend to a considerable distance from the coast, it seems important to point out that, under
Article I A.4, any exclusion of damage suffered in such zones ‘shall not extend to damage on board or to aship or an aircraft’. An exclusion pursuant to Article I A.2, could, however, prevent compensation ofdamage suffered on or by artificial islands, installations and structures constructed within a coastal State’s
EEZ or on its continental shelf, as well as other damage not suffered by or on board a ship or aircraft. As
for damage suffered in the territory of a non-nuclear non-Contracting State, or in the maritime zones
established by that State in accordance with the law of the sea, there can be no doubt that the 1997 Vienna
Convention applies thereto. Moreover, inasmuch as the Convention applies to damage ‘wherever
suffered’, damage suffered on the high seas, or in the maritime zones established by the Contracting
Parties, is also covered.” IAEA (2020), The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the1997 Convention on Supplementary Compensation for Nuclear Damage – Explanatory Texts, supra note 110.
193 See Article 2 of the Revised Paris Convention. Unlike Article I.A of the Revised Vienna Convention, Article 2of the Revised Paris Convention does not allow the installation state to exclude damage suffered in nuclear
non-contracting parties based on the fact that nuclear damage is covered wherever suffered. Rather, it
directly lists categories of non-contracting states in which nuclear damage suffered is covered by the
Revised Paris Convention.
194 According to paragraph 6 of the Exposé des Motifs of the Revised Brussels Supplementary Convention, “[…] since
public funds under the Revised Brussels Supplementary Convention are being made available tocompensate nuclear damage and given the nature and origin of those funds, they should only be allocatedto victims in States which have agreed to participate in the supplementary funding system. […] The
Brussels Supplementary Convention will apply to nuclear damage only if it is suffered in any one of thefollowing three situations and subject to the Court of a Contracting Party having jurisdiction according to
the Paris Convention: (a) first, it will apply to damage that is suffered in the territory of a Contracting Party;(b) secondly, it will apply to damage that is suffered in or above maritime areas beyond the territorial sea
of a Contracting Party, as long as it is suffered (i) by a national of a Contracting Party, (ii) on board or by aship flying the flag of Contracting Party, (iii) on board or by an aircraft registered in the territory of aContracting Party or (iv) on or by an artificial island, installation or structure under the jurisdiction of aContracting Party, excluding damage suffered in or above the territorial sea of a State not Party to thisConvention; (c) finally, it will apply to damage that is suffered in or above the exclusive economic zone
(EEZ) of a Contracting Party or on the continental shelf of a Contracting Party in connection with the
exploitation or exploration of natural resources of that zone or shelf.” NEA (2020), “Exposé des Motifs of
the Brussels Supplementary Convention as amended by the Protocols of 1964, 1982 and 2004”, adopted by
the Contracting Parties to the Brussels Supplementary Convention on 23 Dec. 2010, NEA Doc.
NEA/NLC/DOC(2017)4/FINAL (Exposé des Motifs of the Revised Brussels Supplementary Convention).

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SESSION 3. PROVING THE CAUSAL LINKAs regards the CSC, it is silent as to the place of a nuclear incident. Consequently, “its scopeof application depends entirely on the scope of application of the relevant nuclear liability
convention or, in the case of an ‘Annex’ operator, on the scope of application of the Annex.” 195
Concerning the place where the nuclear damage is suffered, the CSC “creates an obligation on thepart of all the Contracting Parties to make public funds available in order to compensate damage
exceeding a given amount which the Installation State must make available at the national level.
As far as the national compensation amount is concerned, Article III.2(a) of the Convention allows
the law of the Installation State, subject to obligations of that State under other conventions on
nuclear liability, to exclude damage suffered in a non-contracting State. […] As for the‘geographical scope’ of the additional funds to be provided by all the Contracting Parties, in cases
where the damage exceeds the national compensation amount, Article V of the CSC states thatthose additional funds cannot be used to cover damage suffered in the territory of nonContracting States.” 196 Application of the CSC is determined by reference to the two different
compensation tiers. As to the first tier, the law of the installation state determines to what extent
nuclear damage suffered in a non-contracting state will be covered, while for the second tier, theConvention prohibits its distribution to compensate nuclear damage suffered in a non-contracting
state, a restriction which is also found in the Brussels Supplementary Convention. This is in linewith the philosophy that a fund comprising public money should be distributed only to victims instates which contribute to that fund.
All nuclear liability conventions provide that they, and the national law applicable thereunder,
shall be applied without any discrimination based on nationality, domicile or residence. 197 Thismeans that, provided damage is suffered within the geographical scope of the conventions, claims
can be brought by nationals of non-contracting states also. Conversely, if damage is sufferedoutside that geographical scope of application, claims cannot be brought even by nationals of thecontracting parties. In the absence of treaty relations between states, victims would most likely
take action before their domestic courts on the basis of their national legislation. Judgements
entered by such courts will then be subject to the rules of private international law as regards their
execution. With regard to non-nuclear states, the risk remains that victims in such countries willattempt to make use of the conventions both before the courts of the installation state and before
the courts of the place where the damage occurred, if they would have not received fullsatisfaction under the relevant convention system.
The execution of judgements of courts that do not have jurisdiction under the relevant
nuclear liability convention may be prevented in the territory of the contracting parties to such
convention. On the other hand, if the operator has assets in the territory of non-contracting
states, such assets could be seized. Nuclear industry has serious difficulties in dealing with the

195 See Section 3.5.3 of the Explanatory Texts of the 1997 Vienna Convention on Civil Liability for Nuclear Damage
and the 1997 Convention on Supplementary Compensation for Nuclear Damage, which further clarifies that“there can be no doubt that the Convention applies if the incident causing damage occurs in an
installation situated in the territory of a Contracting Party, irrespective of whether the operator is liable
under the Vienna Convention, the Paris Convention or the Annex. However, doubts may arise if theincident occurs in the course of transport of nuclear material; depending on the scope of the applicable
nuclear liability regime, the Convention may or may not apply.” IAEA (2020), The 1997 Vienna Convention
on Civil Liability for Nuclear Damage and the 1997 Convention on Supplementary Compensation for Nuclear
Damage – Explanatory Texts, supra note 110.
196 See Section 3.5.3 of the Explanatory Texts of the 1997 Vienna Convention on Civil Liability for Nuclear Damage
and the 1997 Convention on Supplementary Compensation for Nuclear Damage, which further provides that“[…] the supplementary funds envisaged in the Convention are to be used to compensate: (a) all damage
suffered ‘in the territory of a Contracting Party’, including its territorial sea; (b) damage suffered bynationals of the Contracting Parties, or on board or by ships or aircraft registered in such Parties, or on
or by an artificial island, installation or structure under the jurisdiction of a Contracting Party ‘in or
above maritime areas beyond the territorial sea of a Contracting Party’, but ‘excluding damage sufferedin or above the territorial sea of a State not Party’ to the Convention; and (c) damage suffered ‘in or
above the exclusive economic zone of a Contracting Party or on the continental shelf of a Contracting
Party in connection with the exploitation or exploration of the natural resources of that exclusive
economic zone or continental shelf’.” Ibid.
197 See Article 14(a) of the Paris Convention, Article XIII of the Vienna Convention, Article 14(a) of the
Revised Paris Convention, Article XIII of the Revised Vienna Convention, Article III.2 of the CSC.

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SESSION 3. PROVING THE CAUSAL LINK

absence of treaty relations as regards to writing contractual clauses. Nuclear damage sufferedin states that are outside the scope of application of the respective nuclear liability conventions
are generally not covered by insurance policies, which leads to lengthy negotiations with
contractors as to who would bear nuclear liability in case of a nuclear incident. Specificcontractual clauses are put in place to attribute such liability for damage outside the scope of
application of the respective nuclear liability conventions for the duration of the contract.

Proving the causal link: Practical methods to establish the causal link
Prof. Taro Hokugo, Director for Investigation and Planning of R&D Projects, Atomic Energy
Division, Research and Development Bureau, MEXT, Japan, and Prof. Shinsuke Toyonaga,
Attorney at Law, Advisor, Nuclear Damage Compensation and Decommissioning Facilitation
Corporation, Japan, reported on the practical methods to establish the causal link based on thelesson learnt from the Fukushima accident.
At the time of the Fukushima accident, Japan was not party to any of the nuclear liability
conventions. However, the Compensation Act 198 was consistent with the main principles of theinternational nuclear third party liability regime(s). Japan deposited its instrument of
ratification of the CSC on 15 January 2015 without amending the basic provisions of theCompensation Act.
Section 2.2 of the Compensation Act defines “nuclear damage” as damage “caused by theeffects of the fission process of nuclear fuel, or of the radiation from nuclear fuel, etc., or of the
toxic nature of such materials […].” Section 3.1 of the Compensation Act further specifies that“where nuclear damage is caused as a result of reactor operation etc. during such operation, thenuclear operator who is engaged in the reactor operation etc. on this occasion shall be liable forthe damage […].” This results in a no-fault liability borne by the nuclear operator. 199 Moreover,Section 4.1 of the Compensation Act excludes any liability for compensation of nuclear damage
caused by the operation of a nuclear reactor of any party other than the nuclear operator liable forsuch nuclear damage. This corresponds to the principle of legal channelling, with the nuclear
operator alone bearing liability for compensation of nuclear damage.
Apart from providing a definition of “nuclear damage”, the Compensation Act does not specify
the extent of liability for compensation to be borne by a nuclear operator. Consequently, Article
709 of the Japanese Civil Code, 200 which governs general tort liability, and its standard
interpretations apply. Therefore, a nuclear operator is liable for damage caused by “the effects ofthe fission process of nuclear fuel, or of the radiation from nuclear fuel, etc., or of the toxic natureof such materials” and resulting from the operation of a nuclear reactor by such operator, basedon the concept of “reasonable causation.” 201 Taking into account that there are no specific rules
governing the burden of proof with regard to the concept of reasonable causation, victims bear
the burden of proof in accordance with the principles of general tort law.

198 Act on Compensation for Nuclear Damage, as amended (Act No. 147 of 1961, as amended by Act No. 19
of 17 April 2009).
199 However, the nuclear operator is exempted if the damage occurs due to a “grave natural disaster of an
exceptional character” or “an insurrection” such as an armed attack from a foreign country or a civil
war. Ibid., Section 3.1 of the Compensation Act.
200 Japanese Civil Code, 1896 (Act No. 89 of 27 Apr. 1896).
201 Secretariat note: The “reasonable causation” doctrine on tort liability in the Japanese Civil Code provides
that the legal causation is proven only if the consequence is expected from the cause in light of
conventional wisdom. Possibility or the scope of compensation of nuclear damage is decided in the civil
proceedings by determining whether such damage was caused within reasonable causation or not, withits burden of proof borne by claimants.

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SESSION 3. PROVING THE CAUSAL LINKThe Guidelines issued by the Reconciliation Committee 202 following the Fukushima accident
to facilitate voluntary out-of-court settlement of disputes (e.g. standards for determining thescope of nuclear damage to be compensated by the nuclear operator) proved themselves to be a“compensation standard that can be trusted by both victims and nuclear operators. […] theimportance of an out-of-court settlement as a pragmatic means of dealing with the large numberof compensation claims” filed within a short period of time was clearly recognised in the use of
the Guidelines. 203 It was also demonstrated that “compensation standards decided neutrally by
the experts can contribute to promoting an out-of-court settlement between victims and thenuclear operator.” 204 In the Guidelines, the concerned stakeholders were provided with a tool todetermine the extent of the reasonable causation, or methods for calculating compensation
amounts based on the categories of damage. In a situation where numerous compensation claims
are submitted in a short period of time, the Guidelines demonstrated that they constitute“effective measures aimed at avoiding confusion in the settlement negotiations, in promoting afair compensation and in partially decreasing the burden of proof of causation on the victims”205by providing details on which the claimants can rely while proving causation, damage evaluation
and related legal interpretation.
On 28 April 2011, the Reconciliation Committee issued the Preliminary Guidelines detailingthe scope of damage subject to compensation. Shortly after, the Committee issued the Secondary
Guidelines (on 31 May 2011) and the Supplement to the Secondary Guidelines (on 20 June 2011),
thus further enlarging the scope of nuclear damage provided in the previous Guidelines.
On 5 August 2011, the Reconciliation Committee issued the Interim Guidelines that gave an
overview of nuclear damage to be compensated. 206 On 6 December 2011, the Supplement to theInterim Guidelines was issued to address certain difficulties in defining objective criteria todetermine a sufficient causal relationship between the damage and the accident (it mostly
concerned damage associated with voluntary evacuation). On 16 March 2012, the Reconciliation
Committee issued the Second Supplement to the Interim Guidelines concerning Damage related
to Review of Evacuation Areas by Government Instructions, etc. The Third Supplement to theInterim Guidelines issued on 30 January 2013, further specified rumour-related damage andcompensation for mental anguish to victims requiring nursing care. On 26 December 2014, theFourth Supplement to the Interim Guidelines was issued. It further detailed the scope of damage
related to mental anguish and home relocation or prolonged evacuation.
In order to manage an important number of claims related to the Fukushima accident, theNuclear Damage Compensation Dispute Resolution Centre (the “ADR Centre”) was establishedunder the auspices of the Reconciliation Committee to mediate settlements, and began
receiving applications from September 2011. 207 TEPCO, the liable operator, also put in place anorganisation to manage the compensation claims (e.g. compensation counselling office

202 For more information on the Reconciliation Committee and the Guidelines, see NEA (2012), Japan’sCompensation System for Nuclear Damage: As Related to the TEPCO Fukushima Daiichi Nuclear Accident, OECD
Publishing, Paris.
203 See Nomura, T. et al. (2012), “Japan’s nuclear liability system”, in NEA (ed.), Japan’s Compensation System for
Nuclear Damage: As Related to the TEPCO Fukushima Daiichi Nuclear Accident, OECD Publishing, Paris, pp. 15-27.
204 Ibid.
205 Ibid.
206 The categories of damage indicated in the Interim Guidelines are as follows: damage relating togovernment evacuation instructions, etc.; damage relating to the declaration by the government ofmarine exclusion zones, etc., and no-fly zones; damage relating to instructions issued by thegovernment or a government agency restricting the shipment of agricultural, forest or fishery products;
damage relating to any other government instructions, etc.; so-called “rumour-related” damage(general criteria, agriculture/forestry/fisheries, food industry, tourism, manufacturing, services, etc.,
exports); so-called “indirect damage”; damage from radiation exposure; measures for adjustments
between government benefits paid to a victim, and compensation that the victim receives; property
and other damage sustained by local government, etc. For more information, see Matsuura, S. (2012),“The current progress of relief of victims on nuclear damage caused by the Fukushima Daiichi nuclear
power plant accident”, in NEA (ed.), Japan’s Compensation System for Nuclear Damage As Related to the
TEPCO Fukushima Daiichi Nuclear Accident, OECD Publishing, Paris, pp. 29-39.
207 Secretariat note: As of September 2020, 26 097 applications had been received, among which 20 376 cases
had been settled, 2 870 cases had been withdrawn, and 2 208 cases had been terminated. Source: theADR Centre.

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established in Fukushima; compensation counselling and promoting units; public compensation
unit; management and operation assistance unit).
The overall structure of compensation for nuclear damage caused by the Fukushima accident
and respective data related to claims handling are summarised in the following diagram:

Figure 17. Structure of compensation for nuclear damage
caused by the Fukushima accident

CourtsTort-feasor
Total amount of compensation*：
about 7,502 bil Yen
natural persons:
2,956 bil Yen(917,000 settled claims)
voluntary evacuees:
354 bil Yen(1,295,000 settled claims)
corporate bodies and sole Proprietors:
4,395 bil Yen(394,000 settled claims)
Provisional payments:

17,192 settlements outof 22,876 petitions,1982 pending**

401 cases filed*
170 cases pending*

Dispute Reconciliationby the ADR CenterCollective coordination of compensation in some industries

153 bil Yen

Compensation policy*Data as of 13 September 2017**Data as of 29 September 2017

Affected Parties
Total number of claims*:
about 2,789,000
natural persons:
1,023,000
voluntary evacuees:
1,308,000
corporate bodies and sole proprietors:
458,000

Some associations andcooperatives in theaffected industrial fields

Direct claims accepted by the tort-feasor
based on its compensation policy

Guidelines on Determination of the Scope of Nuclear Damage

Ministries in chargeof industrial fields

Dispute Reconciliation Committee for
Nuclear Damage Compensation

Government
Source: Hokugo, T. (2017) "Practical Methods to Establish the Causal Link – Taking an Example of Compensation of 2011
Accident”, presented at the Third International Workshop on the Indemnification of Damage in the Event of a Nuclear Accident,
Bratislava, October 2017.

Pursuant to the Compensation Act, nuclear operators have a duty to secure funds (up to theestablished financial security amount) to allocate to the compensation of nuclear damage.
According to Section 7.1 of the Compensation Act, financial security shall be provided by using
one of the following options: (i) the conclusion of a liability insurance contract for nuclear damage
with insurance companies (a “private liability insurance contract”) and an indemnity agreement
for compensation of nuclear liability with the government (a “government indemnity agreement”);(ii) a deposit of money for the compensation of nuclear damage; or (iii) other measures equivalent
to the above. 208 TEPCO covered its nuclear liability for the Fukushima Daiichi nuclear power plant

208 As further explained in the report on Japan’s Compensation System for Nuclear Damage: As Related to the TEPCO
Fukushima Daiichi Nuclear Accident, “There are no express provisions concerning the requirements formeasures equivalent to (i) and (ii), but these might be a government guarantee, bank guarantee, or
combinations of these measures, the set of a private liability insurance contract and a government
indemnity agreement and a deposit of money. The financial security amount for specific types of nuclear
operation is designated within the range under JPY 120 billion in the cabinet order, which specifies
JPY 120 billion per site for reactor installations whose thermal output exceeds 10 000 kW, andconsequently, all the nuclear power plants in Japan fall in this category. The financial security amount
has been raised as far as possible in each review of the nuclear liability system, approximately every ten
years, in light of factors such as the growth of the insurance market’s underwriting ability. The current
level of JPY 120 billion was raised from the previous level of JPY 60 billion at the time of the 2009 revisionof the Compensation Act.” For more information, see Nomura, T. et al. (2012), supra note 203, p. 19.

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SESSION 3. PROVING THE CAUSAL LINK

from private liability insurance together with a government indemnity agreement, allowing
payments of up to JPY 120 billion. Taking into account that the Fukushima accident was causedby an earthquake and tsunami, compensation for nuclear damage was covered by the government
indemnity agreement. After the accident, TEPCO claimed JPY 120 billion from the government
based on the government indemnity agreement, and effectively received such payment. Finally,should the amount of compensation exceed the financial security amount (which was the casefor the Fukushima accident), Section 16.1 of the Compensation Act stipulates that the government
should provide the operator with the necessary assistance regarding compensation, provided that
it is consistent with the purposes of the Compensation Act.
A breakdown of compensation for nuclear damage caused by the Fukushima accident (as ofAugust 2017) is demonstrated on the following diagram:

Figure 18. Breakdown of compensation for nuclear damage
caused by the Fukushima accident
Breakdown of corporate bodies
and sole proprietors
100%

Indirect damage, etc.

Settled Amount breakdown by nature of victims
Decommissioning

Lump sum compensation of businessdamage and harmful rumor

100%

Shipping riestrictions and harmful
rumor

80%
0%

Others60%
Damage of corporate
bodies and sole
proprietors
Damage of natural
persons

40%
20%
0%

Business damage
bil YenCategory of damage

bil Yen(%)

Business damage

496.3

18.4

Shipping riestrictions and harmful rumor
Lump sum compensation of business damage andharmful rumor
Indirect damage, etc.

1664.2

61.6

Total damage of corporate bodies and sole proprietors

bil YenCategory of nature of victims

bil Yen(%)

Total damage of natural persons

1945.5

25.9

7.6

333

12.3

2700.2

100.0

Breakdown of natural person

100%

Cost of radiation testing
Mental anguish

50%

Total damage of corporate bodies and sole
proprietors

2700.2

Total of others

1672.2

Decommissioning

1186.5

15.8

Total settled amount

7504.5100.0*Settled amount as of 1st August 2017

206.5

Voluntary evacuation

36.0
0%

Incapacity damage
bil YenCategory of damage

bil Yen(%)

Cost of radiation testing

258.8

13.3

Mental anguish1065.2

54.8

Voluntary evacuation

362.6

18.6

Incapacity damage

258.8

Total damage of natural persons

1945.5

13.3
13

100.0

Source: Hokugo, T. (2017) "Practical Methods to Establish the Causal Link – Taking an Example of Compensation of 2011 Accident”, presented
at the Third International Workshop on the Indemnification of Damage in the Event of a Nuclear Accident, Bratislava, October 2017.

Most of the compensation was dedicated to business damage, shipping restrictions andharmful rumours. Regarding natural persons, compensation of mental anguish that accompanied
the evacuation took the lead.
Prof. Shinsuke Toyonaga provided a brief analysis of some of the decisions by Japanese courtsthat applied the Guidelines. Although the Guidelines are not legally binding, they were elaborated
on a neutral ground, and therefore serve as a reference for the damage compensation negotiations
between victims and the nuclear operator. They facilitate settlement negotiations between theparties and promote a fair compensation of damage. In addition, the procedure before the ADR
Centre does not constitute a mandatory step in the process of settling claims because victims of
nuclear damage caused by the Fukushima accident are entitled, at their own discretion, either
individually or as part of a group, to file a claim: (i) directly to the nuclear operator liable, TEPCO;(ii) before the ADR Centre; or (iii) before the Japanese civil courts. Victims can freely choose
between these three options, with no priority among them.

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In total, there have been 404 lawsuits brought against TEPCO before the courts (as of July2017), 235 lawsuits were resolved, and 169 lawsuits were pending. 209 Establishing a causal link
between the accident and damage suffered is one of the main issues regarding all these cases.
For the settlements before the ADR Centre, the Guidelines are used on regular basis as areference standard to determine the damage subject to compensation and establish the causal
link. Courts have different positions with regard to the Guidelines. In some cases, they
confirmed the Guidelines’ approach; in other cases, they expressly stated that they are notbound by the Guidelines and would rule regardless of what is provided therein. In many cases,
they decided to uphold the amount of claimed compensation in excess of the amount provided
in the Guidelines. However, almost all courts adopted the Guidelines approach regarding theestablishment of the causal link.
The following examples of court decisions can be provided to illustrate how the Japanesecourts applied the Guidelines:•

Tokyo District Court Decision of 2 June 2015: This case concerned a claim from a plaintiff
who lived within the evacuation area and evacuated under the government’s
evacuation order. The plaintiff returned to his home once the evacuation order was
lifted. The plaintiff decided to sue TEPCO and claimed: (i) compensation for pain andsuffering during evacuation exceeding the respective amounts for compensation
provided in the Guidelines; (ii) compensation for pain and suffering from living underhigh dose radioactivity; and (iii) compensation for pain and suffering from living near
the Fukushima Daiichi nuclear power plant. The court had to rule on the following
issues: whether compensation for pain and suffering experienced during a nonvoluntary evacuation exceeding the threshold established in the Guidelines could beallocated to the plaintiff and whether the plaintiff is entitled to claim compensation foritems (ii) and (iii) above, provided that such compensation is not allowed in the
Guidelines. The court decided to apply the Guidelines, which were considered as being“reasonable” and rejected the claim as a whole. The court also assumed that the causal
link concept provided in the Guidelines was reasonable and ruled on the basis of theapproach to establish the causal link provided in the Guidelines;•

Chiba District Court Decision of 22 September 2017: This case related to one of the mass
tort lawsuits (46 people). The plaintiffs lived within the evacuation area and evacuatedunder the government’s evacuation order. The plaintiffs returned to their homes after theorder was lifted. The plaintiffs decided to sue TEPCO and claimed: (i) compensation for
pain and suffering during evacuation exceeding the threshold form compensation
established in the Guidelines; and (ii) compensation for pain and suffering from losing
their local community due to the Fukushima accident even though the evacuation order
was lifted. The court had to rule on the following issues: whether compensation for pain
and suffering experienced during a non-voluntary evacuation exceeding the thresholdestablished in the Guidelines could be allocated to the plaintiffs, and whether there wasa causal link between the pain suffered due to the loss of the local community and theaccident, provided that the plaintiffs were entitled to return to their homes once theevacuation order was lifted. The court decided that pain and suffering experienced under(i) do not exceed what is provided in the Guidelines. With regard to item (ii), the court
ruled that there was a causal link between the accident and pain and sufferingexperienced by the plaintiffs due to the loss of the local community. Therefore, for item(i) the court decided to apply the Guidelines approach regarding the causal link; for item(ii), the court ruled that although the Guidelines do not clearly establish a causal link
between the accident and the damage suffered, there was a causal link between thedamage under item (ii) and the accident that had to be compensated.

209 As of February 2023, TEPCO has received in total approximately 3 million claims and has paid about
JPY 10.731.9 billion. Source: TEPCO (2023), Records of Applications and Payouts for compensation of Nuclear
Damage,available
at:www.tepco.co.jp/en/hd/responsibility/revitalization/pdf/comp_result-e.pdf(accessed 31 Aug. 2023). As of November 2020, in total 573 lawsuits have been brought against TEPCO
before the courts, 410 lawsuits were resolved, and 163 lawsuits were pending.

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SESSION 3. PROVING THE CAUSAL LINKAs a conclusion, the Guidelines are commonly used as reference standards in court
procedures to establish the causal link. Based on the example of several court decisions,establishing the causal link beyond what is provided in the Guidelines seems to be possible,
although difficult, and depends on each plaintiff’s situation. Finally, the alternative dispute
resolution mechanism and use of the Guidelines for resolving disputes proved to be excellent
tools to provide quick and smooth compensation to victims in case of a nuclear accident.

Discussion session
A question arose as to whether the lessons learnt from the Fukushima accident were taken into
account to amend the Japanese national legislation, especially given the accession of Japan to
the CSC. In this regard, it appeared that the main changes to the national legislation are related
to the area of civil procedures (e.g. enforcement of foreign judgement, limitation of the court’s
jurisdiction). Concerning the intention to keep the knowledge and the experience that has been
gained in the frame of the organisation set up to deal with compensation claims following the
Fukushima accident, it was explained that the policies, rules and regulations developed to
manage the compensation process would remain, while the human resources employed by
TEPCO may be reduced in the future.
Clarification was requested on whether Article XI of the CSC, which provides that only 50% of
the public funds shall be allocated to transboundary damage, can be considered as
discriminatory. 210 It appeared that this system of allocation of public funds was designed tocompensate transboundary damage (i.e. damage suffered outside the territory of the installation
state) and was meant to attract both nuclear and non-nuclear states. In addition, the reciprocal
benefits principle might also be considered as discriminatory, since a state could decide to offer
as much compensation as it is offered on an equivalent basis. Article III.2 of the CSC makes it clear
that, as a general rule, both the national compensation amount and the supplementary funds tobe made available under the CSC are to be distributed “equitably without discrimination on thebasis of nationality, domicile or residence.” As a consequence, provided that damage is sufferedwithin the “geographical scope” of the Convention, compensation can be obtained by nationals of
non-contracting states also. Conversely, if damage is suffered outside that “geographical scope”,
compensation cannot even be obtained by nationals of contracting parties.
With regard to the Fukushima accident, it was inquired why the tsunami was not treated asa “grave natural disaster of an exceptional character” that would exempt the operator fromliability for compensation. 211 It appeared that the Japanese government considered that theearthquake and tsunami did not correspond to “a grave natural disaster of an exceptional
character”, and concluded that TEPCO should not be exempted from its liability for nuclear

210 Secretariat note: Under Article III of the CSC, compensation in respect of nuclear damage per nuclear
incident must be ensured, up to a certain amount, at the national level by the operator liable, throughinsurance or other financial security, or by the installation state; beyond that amount, supplementarycompensation is to be provided for by all the contracting parties through public funds to be madeavailable in accordance with a specified formula according to Article IV of the Convention. Article XI of
the CSC governs the allocation of the public funds and provides that (a) 50% of the funds will be used
to compensate damage suffered both inside and outside the territory of the installation state,and (b) the remaining 50% will be exclusively used to compensate damage suffered outside the territoryof the installation state, to the extent that it has not already been compensated under (a).
211 Section 3.1 of the Japanese Compensation Act provides that “Where nuclear damage is caused as aresult of reactor operation etc. during such operation, the nuclear operator who is engaged in thereactor operation etc. on this occasion shall be liable for the damage”. However, the nuclear operator isexempted if the damage occurs due to a “grave natural disaster of an exceptional character” or “aninsurrection” such as an armed attack from a foreign country or a civil war (proviso to Section 3.1). See
supra note 198.

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SESSION 3. PROVING THE CAUSAL LINK

damage. 212 The government’s position was confirmed by several court decisions.
Finally, a question arose as to whether claims regarding radiation-related impacts on health(especially with long-term consequences, such as cancer) were already filled by victims, andwhether the Guidelines provide some rules regarding the establishment of the causal link
between the exposure to radiation and developing a cancer. It appeared that, since theevacuation was successful, no resident was exposed to radioactivity to the levels that might
impact health; however, some exceptional cases may occur in the future.

Overview of responses to the questionnaire
Persons eligible to claim compensation for nuclear damage under national legislation
This part of the questionnaire covered the issue of determining the causal link between the
nuclear incident and the nuclear damage suffered by victims who claim compensation, and more
specifically the categories of persons who would be eligible to claim compensation (under thenational law of the responding country) for nuclear damage suffered: (i) within the responding
country’s territory, or (ii) outside the responding country’s territory.
In answering the question related to the persons eligible to claim compensation for nuclear
damage suffered within the country’s territory, all of the 29 responding countries reported that
all natural and legal persons who suffered nuclear damage would be able to claim compensation
under the relevant domestic law. Examples:•

China: The 2007 State Council Official Reply to Questions on the Liabilities ofCompensation for Damages Resulting from Nuclear Accidents – Guo Han [2007] No. 64
stipulates in Section 10 that “(t)he natural persons, legal persons and otherorganisations that have suffered from damages caused by nuclear accidents are eligible
to claim compensation for damages resulting from nuclear accidents”; 213•

Germany: Article 28 of the Atomgesetz provides that compensation claims may be
addressed by the party that was injured, but in the event of the death of this person,
eligibility to claim compensation shall be recognised to (i) the person liable to pay thefuneral costs; (ii) those parties dependent upon the deceased; and (iii) survivors thatwere in a special personal relationship with the deceased; 214•

India: According to Section 14 of the CLND Act, the victims, who may claim
compensation for nuclear damage, subject to their application before the ClaimsCommissioner or the Commission, are defined as follows: (i) a person, who hassustained injury; or (ii) the owner of the property, to which damage has been caused; or

212 As further explained in the report on Japan’s Compensation System for Nuclear Damage: As Related to the TEPCO
Fukushima Daiichi Nuclear Accident, “No clear standards have been established regarding what specific kindof situation would qualify for exemption due to ‘grave natural disaster of an exceptional character’, but it
is interpreted that this exemption means that even if it exceeds the scale of disaster that operators should
specifically envisage to prevent damage under the fault liability principle, this exemption will not apply
unless it is evidently a case where it is totally inappropriate to make nuclear operators bear compensation
liability. Even in the Diet deliberations when the acts were submitted in 1961, it was explained that theexemption was not equivalent to that for a simple ‘act of God’ but could be expressed as a ‘super-act ofGod’ or ‘situations that are completely beyond all imagination’. In the light of such points, the government
has expressed a view that ‘a grave natural disaster of an exceptional character’ is restricted to situations
that are beyond all imagination, which have never been experienced by mankind in history, and that inconsideration of the scale (magnitude) of the earthquakes and the run-up height of tsunami in thedisasters that have previously occurred in the world, the 2011 Great East Japan Earthquake and thetsunami that occurred in conjunction with it (‘the 2011 disaster’) do not qualify on this basis.” For more
information, see Nomura, T. et al. (2012), supra note 203, p. 18.
213 See Section 10 of the Guo Han [2007] No. 64), supra note 155.
214 Atomgesetz, supra note 173.

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SESSION 3. PROVING THE CAUSAL LINK(iii) the legal representatives of the deceased; or (iv) any agent duly authorised by such
person or owner or legal representatives; 215•

Poland: Only the competent minister for environmental matters will be entitled to claim
compensation for nuclear damage to the environment. 216

In answering the question related to the persons entitled to claim compensation in casenuclear damage is suffered outside the territory of the responding country, the majority of the
responding countries reiterated that in such a case, all natural and legal persons could claim
compensation. However, the national laws of a few countries provide differently. Examples:•

Austria: Even though no difference is made between victims in Austria or abroad, fornuclear damage suffered abroad and governed by Austrian law, claims forcompensation may be eligible only if the national law of the claimant provides forcompensation; 217•

China: In case of a nuclear accident causing transboundary damage, claims would be
handled on the basis of the international agreement entered into between China andthe relevant countries. In the absence of such an agreement, the principle of reciprocity
shall apply; 218•

Portugal: Notwithstanding any issues which may arise in specific cases where the Paris
Convention may be relevant, recourse to the general liability rules would be necessary.
Requirements with regard to the causality are established in Article 563 of thePortuguese Civil Code, 219 establishing that the duty to compensate extends to damage,which the injured party would probably not have suffered if the injury had not takenplace (i.e. adequate causality). This encompasses direct and indirect damage and, as arule, there are no subjective limits related to the person who may claim compensation,
as long as this test is met.

Mechanism to determine the causal link to nuclear damage
This question focused on clarifying whether under the national legislation of the responding
country there is a mechanism to determine the causal link to nuclear damage. Existence of sucha mechanism would enable victims to avoid bearing the burden of proof before the courts,
especially with regard to latent damage (e.g. personal injury that appears between 10 and
30 years after the date of the nuclear accident).
The majority of the responding countries reported that such a mechanism is not foreseen
under their national laws, while a few countries confirmed, to the contrary, that their national
legislation provides for such a mechanism (see Figures 19.a and 19.b). Examples:•

Austria: Article 12(1) of AtomHG establishes a presumption of causality (i.e. if an injured
party submits reasonable evidence of having been physically exposed to nuclear radiation
originating from a nuclear installation, from nuclear material or radionuclides, it will be
presumed that the injury was caused by nuclear radiation, provided that nuclear radiation
is known to be a cause of such damage). This presumption can be rebutted by the
defendant by proving that it is probable that the damage was not caused by nuclear
radiation. For the rebuttal, it would be sufficient to show that in the case underconsideration other causes were more probable than nuclear radiation; 220

215 CLND Act, supra note 159.
216 See Article 105 of the Act of 29 November 2000 on Atomic Energy, supra note 66.
217 See Section 23(2) of the AtomHG, supra note 136.
218 See Section 3 of the Guo Han [2007] No. 64, supra note 155.
219 Portuguese Civil Code, 1966 (Decree-Law No. 47344, Official Gazette [Diário da República] No. 274/1966,
Series I of 25 November 1966).
220 See Section 12 of the AtomHG, supra note 136.

84

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SESSION 3. PROVING THE CAUSAL LINK•France: According to Article L. 597-12 of the Environmental Code, a non-restricted list ofillnesses presumed to have been caused by the nuclear accident, unless evidence to thecontrary is provided, shall be defined through specific regulation on the irradiation andcontamination received and on the time elapsed before the illnesses were observed; 221•

India: Section 12 of the CLND Act, 222 along with Rule 6 of the 2011 Civil Liability for
Nuclear Damage Rules, 223 which both concern the adjudication procedure before theClaims Commissioner, incorporate in such procedures the matter of the burden of proof.

Finally, it is worth mentioning the response from Canada, according to which,notwithstanding the absence of a mechanism to determine the causal link to nuclear damage
under the national legislation, a mechanism presumably based on the standard burden of proofof “more likely than ever” has been established by the insurers for damage within the 10-year
claims limitation period. For bodily injuries beyond 10 years and up to the 30-year limitation
period under the NLCA, the government would develop a mechanism to determine thecausation of these damages for the purposes of assessing any claims made under thegovernment’s indemnity agreement with operators to cover such risk. 224

Figure 19.a. Does your national legislation provide a mechanism(s)to determine the causal link to nuclear damage so thatvictims avoid bearing the burden of proof before the courts?
7%

14%

YES
NO
N/A

79%

Source: NEA.

221 See Article L. 597-12 of the French Environmental Code issued by Order No. 2012-6 of 5 January 2012
(Official Journal of the French Republic of 6 Jan. 2012, p. 10).
222 See Section 12 of the CLND Act, supra note 159.
223 See Rule 6 of Civil Liability for Nuclear Damage Rules, 2011, No. 611 (The Gazette of India, Extraordinary,
Section 3(i), 11 Nov. 2011) (2011 CLND Rules).
224 NLCA, supra note 124.

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SESSION 3. PROVING THE CAUSAL LINK

Figure 19.b. Does your national legislation provide a mechanism(s)to determine the causal link to nuclear damage sothat victims avoid bearing the burden of proof before the courts?

Source: NEA.

Session 3 – Conclusions

86

i)

Victims (natural and legal persons) entitled to be compensated under a nuclear liability
convention are identified in accordance with the convention’s geographical scope of application,
which differ from one convention to another and has been extended in time to cover
more victims. Some national laws have explicitly extended their application to damage
wherever suffered (e.g. Germany, the Netherlands). In case of absence of treaty
relations, several problems arise (e.g. non-covered victims do not benefit from thesame compensation process as those under the relevant convention(s); issue of
enforcement of foreign judgements);

ii)

Victims do not need to prove fault but only the causal link, which may be an issue. Somenational laws have provided for presumption of causality mechanisms (for instance,
regarding certain bodily injuries or illnesses, e.g. Austria, Canada, France);iii)

In Japan, nuclear damage caused by the Fukushima accident was compensated basedon non-binding Guidelines which established the causal link between the nuclear
damage therein specified and the accident. It allowed for a prompt compensation of
victims and avoided litigation before courts. Courts accepted the Guidelines as proofof the causal link and applied them.

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SESSION 4. IDENTIFYING THE LIABLE ENTITY

Session 4
Identifying the liable entity

Mr Konstantin Kryazhevskikh, Director Legal and Corporate, Rusatom Energo Internationaland Chair of Session 4, observed that nuclear lawyers are used to dealing with an assumptionthat there is a legal channelling of nuclear liability to the operator in case of a nuclear incident.
However, there are several exceptions to this principle, not only with regard to the nonconvention states, but also regarding the convention states (due to the exceptions provided
either in the nuclear liability conventions themselves, or in the national legislation of certain
convention states concerning, for example, a statutory right of recourse against suppliers).
Therefore, and prior to entering into a contract for supply of goods or services to a particularcountry, nuclear lawyers always need to investigate the national nuclear liability regime in thatcountry in order to assess the nuclear liability risks that may arise in case of a nuclear incident.

Identifying the liable entity: Different approaches to channelling
Mr Ben McRae, Assistant General Counsel at the US Department of Energy and member of the
NLC Bureau, emphasised that from the beginning of the development of the nuclear industry,owners and operators of nuclear installations, as well as suppliers of nuclear goods, services andtechnology were concerned about the ruinous impact that liability claims in the event of a nuclear
incident could have on their businesses and assets. To encourage investment in the nuclear
business, governments introduced the concept of “channelling”, which refers to the principle that
responsibility for nuclear damage resulting from a nuclear incident is focused exclusively on theoperator of a nuclear installation where a nuclear incident occurred. In other words, the operator
of a nuclear installation is the only entity legally liable for such damage, regardless of which act
or omission was the actual cause of the incident. Suppliers, investors and other persons
potentially liable under normal tort law are held harmless and not responsible for compensating
nuclear damage. Channelling is an essential element of the public policy decision to focus oncompensating victims promptly, rather than litigating on fault-based liability.

Channelling of liability
There are two types of channelling – legal and economic. Legal channelling imposes all legal
liability for nuclear damage exclusively on the operator and does not permit any lawsuits against
suppliers, investors or any other persons that might otherwise be legally liable under the ordinary
tort law. Economic channelling does not affect legal liability under the ordinary tort law, but does
require the operator to pay for all monetary judgements resulting from legal liability for nuclear
damage. In other words, while lawsuits can be brought against the operator, suppliers, investors
or any other person, the operator pays for all the nuclear damage for which there is a legal liability.
All nuclear liability conventions include provisions on legal channelling. 225 All countries
with nuclear power plants, except for the United States, tend to incorporate legal channelling
into their national nuclear liability laws. An operator of a nuclear installation is the person
designated or recognised by the state as the operator of the installation (usually, it refers to an

225 See Articles 3 and 6 of the Paris Convention and the Revised Paris Convention; Article II of the Vienna
Conventions; Article 3 of the CSC Annex.

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entity that holds the licence). 226 With respect to a nuclear incident at a nuclear installation, theliable operator is the operator of the installation. The benefits of the legal channelling are as
follows:•

it promotes prompt compensation to victims with a minimum amount of litigation, as
victims need to sue only the operator to get compensated; it also simplifies litigation byfocusing proceeding on one entity – the operator;•

it facilitates the imposition of strict liability on the operator, eliminating the need todemonstrate intent, negligence and other elements necessary for liability under theordinary tort law; victims only need to demonstrate causation between the nuclear
incident and the damage suffered;•it maximises the amount of insured compensation available and facilitates measures toensure the availability of insurance and other financial resources to pay compensation;•it allows insurance companies to concentrate their resources and thereby offer higher
amounts of insurance coverage to the operator, since they do not have to set aside funds
to pay potential claims from suppliers and other persons;•it facilitates commercial arrangements related to design, construction and operation of
nuclear installations; it also minimises potential liability, as there is an impediment to theparticipation of suppliers and investors in nuclear projects in the absence of legal
channelling;•

it reduces prices of nuclear projects, since suppliers and investors do not need to include
a cost component in the final price to cover potential legal liability for nuclear damage.

When it comes to economic channelling, the principle was introduced in the United States
nuclear liability law, the Price-Anderson Act. 227 The Price-Anderson Act was enacted in 1957 andthus predates both the Paris Convention and the Vienna Convention. Adoption of the PriceAnderson Act sparked the discussion that resulted in the elaboration of the principle of legal
channelling and other nuclear liability principles. However, it appeared that it was not politicallyfeasible to change the Price-Anderson Act, therefore economic channelling was maintained in the
United States nuclear law, and the “grandfather clause” referring to the use of economic
channelling in the United States was embedded into the CSC Annex to allow the United States toparticipate in this regime without changing its national legislation.228
According to the Price-Anderson Act, the legal liability of operators, suppliers, investors andother persons is determined according to the tort law of the state where a nuclear incident occurs.
An operator of a nuclear power plant must have insurance or other financial security of
USD 450 million (the so-called “first tier” amount). If nuclear damage exceeds the “first tier”
amount, operators of nuclear power plants must contribute up to USD 121.25 million per nuclear
power plant to a retrospective pooling arrangement, which results in approximately

226 See Article 1(a)(vi) of the Paris Convention and the Revised Paris Convention; Article I.1(c) of the Vienna
Conventions; Article 1.1(d) of the CSC Annex.
227 Price-Anderson Act, supra note 39.
228 As specified in Section 3.3.3 in the Explanatory Texts of the 1997 Vienna Convention on Civil Liability for Nuclear
Damage and the 1997 Convention on Supplementary Compensation for Nuclear Damage, “Under Article 2.1, thenational law of a Contracting Party is deemed to be in conformity with the provisions of Articles 3, 4, 5 and
7 of the Annex if, on January 1995, it contained provisions that: (a) provide for strict liability for substantial
off-site nuclear damage; (b) require the indemnification of any person other than the operator liable in so
far as that person is liable to pay compensation; (c) ensure the availability for such indemnification of atleast 1000 million SDRs in respect of a civil nuclear power plant and at least 300 million SDRs in respect ofother civil nuclear installations. On the basis of this clause, the United States of America is allowed toderogate from the provisions of the Annex relating to the operator’s liability (Article 3), the liability
amounts (Article 4), the financial security which the operator is required to have and maintain (Article 5),
and the liability of more than one operator (Article 7). Moreover, under Article 2.2 and 3, the ‘grandfather’clause allows the United States of America to apply a definition of ‘nuclear damage’ wider than the one
set forth in Article I.1(f) of the Convention, as well as a specific definition of ‘nuclear installation’.” IAEA
(2020), The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention on
Supplementary Compensation for Nuclear Damage – Explanatory Texts, supra note 110.

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USD 12.5 billion (the so-called “second tier” amount). The pooling arrangement constitutes a formof self-insurance by operators. First tier and second tier amounts are used to compensate nuclear
damage. Public liability amount (i.e. the aggregate legal liability for nuclear damage) is limited tothe combined first and second tiers amounts. The US government guarantees the availability offunds corresponding to the first and second tier. If nuclear damage exceeds the public liability
amount (i.e. the total amount available under the first and second tiers), the Price-Anderson Act
provides for the President and the Congress to develop and consider mechanisms to compensate
remaining nuclear damage. In the event of a nuclear incident, all lawsuits are consolidated into
one single class action before the Federal District Court, and the judge is entitled to appoint a
claims commission in charge of deciding on how the money will be allocated.

Right of recourse
The right of recourse represents the legal right of a person (e.g. the operator) to be reimbursed byanother person (e.g. the suppliers) with respect to compensation that the first person has paid tothird parties because of the actions of the second person. Availability of a right of recourse has thepotential to undermine channelling and its benefits, since it provides a possibility to effectivelytransfer responsibility for compensating nuclear damage from the operator to a supplier oranother person. Thus, an important corollary to the channelling principle is that an operator’sright of recourse is restricted within a narrow, well-defined range. In accordance with the nuclear
liability conventions, an operator may exercise a right of recourse only: (i) against the individual
physical person who acts or omits to act with intent to cause damage; or (ii) where and to theextent that such right is expressly provided for by contract. 229
Therefore, at first, the nuclear liability conventions retain the operator's normal right ofrecourse against an individual where the individual acts or fails to act with the intention of
causing nuclear damage. The right of recourse is limited to a right against an individual (i.e. aphysical person) who acts or omits to act with intent to cause damage. There is no right of recourse
against the employer of such person; the principle of respondeat superior is excluded. Secondly, thenuclear liability conventions recognise that contracts often use rights of recourse to allocate risks
between the contracting parties and therefore they neither mandate nor prohibit such contractual
rights of recourse. The nuclear liability conventions provide the opportunity for an operator and a
supplier to negotiate and mutually agree to allocate risks between themselves through theinclusion of an explicit right of recourse provision in their contract. An operator can insist on aright of recourse and a supplier can insist on refusing a right of recourse, but there will be nocontract unless they come to a mutual agreement as to whether and, if so, to what extent there
will be a right of recourse.
However, some national laws provide for a statutory right of recourse (e.g. in India, Korea).
Where the statutory language deviates from the language in the respective nuclear liability
conventions, questions arise as to whether the statutory right of recourse is consistent with thebasic nuclear liability principles. For example, the Korean nuclear liability law provides for a
statutory right of recourse against a supplier or its employee that caused nuclear damage
through intentional acts or gross negligence. 230 This statutory right may be waived or modified
by a contractual provision. According to some experts, statutory rights of recourse that can be
229 See Article 6(f) of the Paris Convention and the Revised Paris Convention; Article X of the Vienna
Conventions and Article 10 of the CSC Annex. It is worth noting that the Paris Convention and theVienna Convention provide the right of recourse automatically, whereas the CSC requires entrenching
the right of recourse into the national legislation.
230 Article 4 of the Korean Act on Compensation for Nuclear Damage, as amended (Act No. 2094 of 24 January1969), provides: “1. Where nuclear damage is caused by the wilful act or gross negligence of a third party,
a nuclear operator who has provided compensation for nuclear damage in accordance with Article 3 shallhave a right of recourse against such third party, provided however, that where the nuclear damage occurs
due to the supply of material or services (including labour) for the operation of a nuclear reactor(hereinafter referred to as ‘supply of material’), the nuclear operator shall have a right of recourse only
insofar as there has been a wilful act or gross negligence by the supplier of the materials concerned or by
his employees. 2. If, in the circumstances described in Paragraph 1 of this Article, a special agreement has
been made regarding rights of recourse, such agreement shall govern.”.

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waived or modified by contract are consistent with the objective of the nuclear liability
conventions to preserve the ability of contracting parties to decide how to address this matter.
Regarding the Indian nuclear law, Section 17 of the CLND Act (Bill No. 19 of 2010) and Rule 24of the 2011 CLND Rules contain provisions that may be construed as a statutory right ofrecourse. 231 When depositing its instrument of ratification of the CSC with the IAEA, India
submitted a declaration that its national law was consistent with the CSC; the declaration crossreferenced a document by the Indian Ministry of External Affairs (MEA) that further explained
these questions under Indian law. 232

Identifying the liable entity: Applying in practice the exonerations from liability
provided under the nuclear liability conventions
Mr Roland Dussart-Desart, Chair of the NLC and Head of Legal Division at the Belgium FPS
Economy, SMEs, Self-employed and Energy, emphasised that according to the Exposé des Motifsof the Paris Convention, “the absolute liability of the operator is not subject to the classic
exonerations such as force majeure, Acts of God or intervening acts of third persons, whether or
not such acts were reasonably foreseeable and avoidable. Insofar as any precaution can be taken,
those in charge of a nuclear installation are in a position to take them, whereas potential victims
have no way of protecting themselves.” 233 Therefore, the burden borne by the operator of a nuclear
installation due to the regime of a strict and absolute liability and the principle of channelling,which denies him in most cases a right of recourse, is supplemented by the non-applicability ofexonerations available under general liability laws.
However, the nuclear liability conventions provide for the following exceptions from theoperator’s liability:
1.

Exemption regarding damage resulting from an act or omission of an individual with intent
to cause damage•

Paris Convention: According to Article 6(f)(i) of the Paris Convention, the operator shall havea right of recourse if the damage caused by a nuclear incident results from an act oromission done with intent to cause damage, against the individual acting or omitting to
act with such intent. There are, however, no provisions exempting the operator fromindemnifying such individual;•

Revised Paris Convention: According to Article 6(e) of the Revised Paris Convention, and in
addition to the right of recourse against the individual provided in Article 6(f), if theoperator proves that the nuclear damage resulted wholly or partly either from the grossnegligence of the person suffering damage or from an act or omission of such personwith intent to cause damage, the competent court may, if national law so provides,
relieve the operator wholly or partly from his obligation to pay compensation in respectof the damage suffered by such person;

231 Under Section 17 of the CLND Act, supra note 159, a right of recourse may be exercised by the operator
against a supplier of goods or services under three separate conditions: a) when such right is expressly
provided for in a contract; b) in cases where the incident is the result of an act of the supplier or his
employee, which includes the supply of equipment or material with patent or latent defects or substandard services ; or c) where the incident resulted from an act of commission/omission with the intent
to cause nuclear damage. See also 2011 CLND Rules, supra note 223.
232 For more information, see Ministry of External Affairs (2020), “Frequently Asked Questions and Answers
on Civil Liability for Nuclear Damage Act 2010 and Related Issues”, available at www.mea.gov.in/pressreleases.htm?dtl/24766/Frequently_Asked_Questions_and_Answers_on_Civil_Liability_for_Nuclear_Dam
age_Act_2010_and_related_issues (for the 2015 edition) (accessed 31 Aug. 2023) and
www.mea.gov.in/Speeches-Statements.htm?dtl/32911/FAQs_Version_20_on_CLND_Act_2010 (for the 2020
edition) (accessed 31 Aug. 2023).
233 See paragraph 48 of Exposé des Motifs of the Paris Convention, NEA (1982), Exposé des Motifs of the Paris
Convention, supra note 109.

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2.

•

Vienna Convention: Article IV.2 of the Vienna Convention states that if the operator
proves that the nuclear damage resulted wholly or partly either from the grossnegligence of the person suffering the damage or from an act or omission of such personwith intent to cause damage, the competent court may, if its law so provides, relieve
the operator wholly or partly from his obligation to pay compensation in respect of thedamage suffered by such person;•

Revised Vienna Convention: Article IV.2 of the Revised Vienna Convention does not modify
the provisions of Article IV.2 of the Vienna Convention and states that if the operator
proves that the nuclear damage resulted wholly or partly either from the grossnegligence of the person suffering the damage or from an act or omission of such person
done with intent to cause damage, the competent court may, if its law so provides,
relieve the operator wholly or partly from his obligation to pay compensation in respectof the damage suffered by such person;•

CSC: Article 3.6 of the CSC Annex provides that national law may relieve an operator
wholly or partly from the obligation to pay compensation for nuclear damage suffered
by a person if the operator proves that the nuclear damage resulted wholly or partly
from the gross negligence of that person or an act or omission of that person done with
the intent to cause damage.

Exonerations regarding damage caused by an act of armed conflict, hostilities, civil war,
insurrections, etc.
•

Paris Convention: Article 9 of the Paris Convention provides that the operator shall not beliable for damage caused by a nuclear incident directly due to an act of armed conflict,hostilities, civil war, insurrection or, except in so far as the legislation of the contracting
party in whose territory the nuclear installation is situated may provide to the contrary,a grave natural disaster of an exceptional character;•

Revised Paris Convention: Article 9 of the Revised Paris Convention states that the operator
shall not be liable for damage caused by a nuclear incident directly due to an act of armed
conflict, hostilities, civil war, insurrection. It is worth noting that a grave natural disasterof an exceptional character is no more covered by the provisions of the Convention. The
same approach was used for the Revised Vienna Convention (see below);•

Vienna Convention: According to Article IV.3 of the Vienna Convention, (a) no liability
under this Convention shall attach to an operator for nuclear damage caused by anuclear incident directly due to an act of armed conflict, hostilities, civil war or
insurrection; (b) except in so far the law of the installation state may provide to thecontrary, the operator shall not be liable for nuclear damage caused by a nuclear
incident directly due to a grave natural disaster of an exceptional character;•

Revised Vienna Convention: There are no more provisions similar to the ones provided
under Article IV.3(b) of the Vienna Convention (i.e. exoneration regarding a grave
natural disaster of an exceptional character was removed). Article IV.3 of the Revised
Vienna Convention provides that no liability under this Convention shall attach to an
operator if it proves that the nuclear damage is directly due to an act of armed conflict,hostilities, civil war or insurrection;•

CSC: Article 3.5 of the CSC Annex provides that (1) no liability shall attach to an operator
for nuclear damage caused by a nuclear incident directly due to an act of armed conflict,hostilities, civil war or insurrection; (2) except insofar as the law of the installation state
may provide to the contrary, the operator shall not be liable for nuclear damage caused
by a nuclear incident directly due to a grave natural disaster of an exceptional character.

As mentioned above, all nuclear liability conventions provide grounds for exonerating a
nuclear operator from liability with regard to armed conflict, hostilities, civil war and insurrection.
They do not, however, provide definitions of these terms. The explanatory texts of the respective
conventions do not clarify this issue either. The concepts of armed conflict and hostilities refer tothe use of force between states – a situation prohibited by the United Nations (UN), except in caseof self-defence or when the UN Security Council takes a binding decision under chapter VII of the

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UN Charter. 234 Such conflicts might start with or without a formal declaration of war: in both cases,
the rules of international humanitarian law (e.g. the 1949 Geneva Conventions and their Protocols)
will apply. 235 Most wars can be clearly identified by the use of traditional weapons and strategies.
However, many states are currently developing new weapons that may supplement or replace theold ones, which creates additional difficulties regarding the qualification of a hostile act. 236
Moreover, an internal conflict may become international if (at least) one of the adversaries benefits
from support of another state. Assessment of a degree of support or control by a state regarding
an armed group required to re-qualify an internal conflict to an international one is subject toseveral conflicting decisions of the International Court of Justice or international criminal
tribunals. The same level of uncertainty concerns “internal conflicts” commonly understood as
civil war and insurrection. However, this question remains rather academic with regard to theapplication of exoneration provisions under the nuclear liability conventions, since theexonerations apply to both internal and international conflicts.
Regarding terrorism, there are many definitions of this phenomenon, but most of them referto a number of criminal offences committed with intent to cause harm. 237 Terrorism is not coveredby the exemptions provided in the nuclear liability conventions. The Exposé des Motifs of the Revised
Paris Convention expressly states that “an operator is not, however, exonerated from nuclear
damage caused by a nuclear incident directly due to an act of terrorism, whatever its scale, sinceterrorists acts are not covered by the events enumerated in Article 9.” 238 The scope and the meansof such attacks may however go beyond the imagination of the drafters of the nuclear liability
conventions, which led to discussions as to whether nuclear damage resulting from an act ofterrorism should remain covered by the nuclear liability conventions.
With regard to the “grave natural disaster of an exceptional character”, there have been
discussions as to whether this notion should be covered by the exemptions provided in the
nuclear liability conventions, taking into account that it was removed from the scope of
exemptions in the Revised Paris Convention and the Revised Vienna Convention. This
exemption remains, however, applicable in the Paris Convention, the Vienna Convention and
the CSC. There is no definition of a “grave natural disaster of an exceptional character” provided
in the nuclear liability conventions. The gravity of a disaster is not a factor that relates
exclusively to the size of the event, as its impact will depend on the strength and adequacy ofthe protections built up by the potential victims. The natural character of the disaster can bedifficult to establish, as some natural disasters have proven to be provoked by human activities(e.g. the exploitation of mines or the extraction of gas can lead to earthquakes). The exceptional
nature of a disaster depends on statistics and relies upon the probability of occurrence of anevent, taking into account the number of events registered during a fixed period. As alreadymentioned, 239 the earthquake that triggered a tsunami that killed almost 30 000 people in Japanwas not considered as a “grave natural disaster of an exceptional character” that could
exonerate TEPCO from its liability for the Fukushima accident. The magnitude of this natural

234 For more information regarding the UN Charter, see United Nations (n.d.), United Nations Charter,
available at: www.un.org/en/about-us/un-charter (accessed 31 Aug. 2023).
235 For more information on the 1949 Geneva Conventions and their Protocols, see ICRC (n.d.), Geneva
Conventions of 1949, additional protocols and their commentaries, available at: https://ihl-databases.icrc.org/
en/ihl-treaties/geneva-conventions-1949additional-protocols-and-their-commentaries (accessed 31 Aug.
2023).
236 Secretariat note: Malicious computer worm, STUXNET, which targeted SCADA systems and is believed tobe responsible for causing substantial damage to Iran's nuclear program in 2010 demonstrated that
hostilities between states take new forms. As a consequence, the notion of “armed conflict” might have
evolved and reflect now a new scope.
237 Secretariat note: One of the definitions of “terrorism” is provided by the Directive (EU) 2017/541 of theEuropean Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council
Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA, Official Journal of theEuropean Union (OJ) L 88/6 (31 Mar. 2017). The Directive provides a list of criminal offences considered as
being terrorist offences.
238 See paragraph 80 of the Exposé des Motifs of the Revised Paris Convention, NEA (2020), Exposé des Motifs of
the Revised Paris Convention, supra note 187.
239 Secretariat note: See Session 3 - Proving the causal link of this report.

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event was compared with similar events in the past, in Japan and in the rest of the world, andit appeared that, even within the borders of Japan, there were several precedents of a far higher
scale. The fact that the scale of this natural event, which was not considered exceptional, could
nevertheless lead to a major nuclear incident, prompted certain Japanese courts to challenge
the channelling principle, as they ruled that the Japanese authorities may be held liable, alongwith TEPCO, for their actions and/or negligence in the areas of policy making or regulatory
control (and more precisely, for not having obliged the nuclear operator to adequately protect
its installations). 240
As a conclusion, it could be asked whether grave natural disasters are really unforeseeable
events. Earthquakes, tsunamis, tornados, etc. happen in areas that can be identified in advance,
and a growing flow of statistics helps to evaluate the risk associated with the operation of a
nuclear installation in these circumstances. Such statistics were of great help to support thestress tests of the nuclear power plants and define the upgrades needed in terms of safety after
the Fukushima accident. People today seem to be unwilling to accept any gaps in their own
protection and do not see why, as taxpayers, they should bear the costs of a nuclear installation
which has not been built and is operating according to the safety standards which are “fit for
purpose”, taking into account the location of a nuclear power plant, risks of natural disasters
and other parameters. This could explain why the exoneration regarding a “grave natural
disaster of an exceptional character” was removed from the Revised Paris Convention and the
Revised Vienna Convention. The fact that the CSC Annex still allows for such exoneration canbe interpreted as an attempt to promote a wider adherence to this legal instrument. The
exonerations granted to the nuclear operators in the event of an armed conflict, hostilities, civil
war and insurrection seem to be more difficult to withdraw, mostly because of the scale ofdestruction involved and the likelihood of a simultaneous collapse of the financial capacities ofthe operators, the insurers and the installation state in such circumstances.
It is worth noting that paragraph 48 of the Exposé des Motifs of the Paris Convention gives arationale for providing exonerations from nuclear liability to nuclear operators and states that
“The only exonerations lie on the case of [nuclear] damage caused by a nuclear incident directly
due to certain disturbances of an international character such as acts of armed conflict andhostilities, of a political nature such as civil war and insurrection […], on the grounds that all
such matters are the responsibility of a nation as a whole” 241 [Italic added by the Secretariat]. Oneof the main concerns in this area is the exact definition of the concepts concerned. These
concepts keep evolving nowadays and can comprise some new features and threats(e.g. cyberattacks) that were not taken into account by the drafters of the original nuclear
liability conventions, which constitutes a real challenge.

240 Secretariat note: For example, the Maebashi District Court’s Decision of 17 March 2017 and Fukushima
District Court’s Decision of 10 October 2017. These decisions refer to class action lawsuits of evacuees
from the evacuation areas who sued TEPCO (on the ground of general tort liability provided by theJapanese Civil Code or the Compensation Act), and the state (on the ground of the Act Concerning State
Liability for Compensation) for the compensation. The courts partially upheld the claims and decided
that the state is jointly liable with TEPCO (at certain percentage of the total amount of liability), by rulingthat negligence of the State contributed to the triple meltdown of the Fukushima Daiichi nuclear power
plant as, according to the court, the nuclear meltdown could have been prevented. The ruling said thatthe government should have used its regulatory powers to force the operator (TEPCO) to take adequate
preventive measures. The claims on the ground of general tort liability were rejected. Lately, bothdecisions were appealed. However, the Chiba District Court’s Decision of 22 September 2017 rejected
the State liability in similar circumstances by ruling that the failure to exercise regulatory actions is notillegal as predictability of a tsunami of this scale does not necessarily lead to the obligation of taking
the same preventive measures as those put in place after the accident, and because the possible
preventive measures might have been ineffective. For more information on these lawsuits, see NEA(2018), “District court decisions on lawsuits related to state liability following the Fukushima Daiichi
nuclear power plant accident”, Nuclear Law Bulletin, No. 100, OECD Publishing, Paris, pp. 87-89.
241 NEA (1982), Exposé des Motifs of the Paris Convention, supra note 109.

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Identifying the liable entity: Terrorism as one of the exonerations from nuclear
liability – arguments for further discussion
Dr Petr Záruba, Independent Legal Advisor, Former Director of the Czech Nuclear Insurance Pool,stressed that an act of terrorism is not, per se, a cause of exoneration from nuclear liability. As aconsequence, a nuclear operator remains liable for nuclear damage resulting from an act ofterrorism and has to find and provide an insurance coverage of its liability in this regard. However,
the absence of common definitions for the terms “armed conflict”, “hostilities”, “civil war”,“insurrection” and especially “terrorism” in the nuclear liability conventions may lead toconfusion. Some may consider terrorism as an “act of war” with reference to a “war” or “armed
conflict” that constitute exonerations under the nuclear liability conventions; others see the listof exonerations provided in the international nuclear liability conventions as an exhaustive onethat therefore prohibits any “inclusive” interpretation aiming at including “terrorism” into this list.
The absence of a unified definition of “terrorism” and of a clear understanding as to which
category it belongs may also lead to a legal uncertainty regarding the identification of the entity
liable for damage caused by an act of terrorism. This uncertainty could affect the coverage thatthe insurance market is ready to provide for terrorism, 242 and may create delays in the process ofcompensating victims, should it be up to a competent court to decide, in the end, whether“terrorism” is covered by the exemptions provided in the nuclear liability conventions.
In light of recent practice and increasing cases of terrorist attacks, a question may be raised
as to whether it is still fair to hold an operator of a nuclear installation solely liable for nuclear
damage caused by a terrorist act. Moreover, the unwillingness of some insurers to cover terrorist
acts (partially or completely) creates additional complications, as the nuclear operators have tofind alternative sources of financial security to cover their liability and guarantee compensation
for damage suffered.
To remedy this situation, an amendment to provisions related to the definitions andexemptions in the international nuclear liability conventions may be considered. Taking into
account that this may be a time-consuming process, at least a common interpretation of suchprovisions may be agreed. To do so, national and international discussions among lawyers andother experts can only be encouraged.

Identifying the liable entity: Is channelling at risk?
Ms Helena Kazamaki, Senior Vice President – General Counsel Europe and France, GroupCounsel Nuclear Industry Legal & Integrity, ABB, elaborated on the topic of whether channellingis at risk from the perspective of a supplier. As nuclear liability refers to legal and financial
consequences of a serious nuclear incident, notably involving the release of radioactive
substances to the environment, related financial risks and protection measures have been
discussed from the beginning of the development of the nuclear industry between different
stakeholders involved in this business.
Suppliers are obviously concerned by the limits to put in place to reduce and/or minimise
their liability in case of a nuclear incident. Even though the principle of channelling was
designed to protect investors and suppliers from legal and financial consequences of a nuclear
incident, nobody is protected from potential liability claims for negligence under certain tort
laws, or for contractual liability when expressly accepted under a contract.

242 Secretariat note: As an example, the 11 September 2001 attacks at the World Trade Center in New York
City and the Pentagon in the United States resulted in the largest loss in the history of insurance andled to concerns about nuclear damage coverage in case of potential future terrorist attacks targeting
nuclear power plants or other nuclear installation. As a consequence, some insurers decided to exclude
coverage for terrorism from their nuclear liability and property insurance policies beginning 2002. Other
insurers maintained coverage for terrorism, but established aggregate limits or sub limits and increased
premiums.

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SESSION 4. IDENTIFYING THE LIABLE ENTITYAs already mentioned in this session, there are two types of right of recourse available to anuclear operator under the nuclear liability conventions: (i) if the damage results from anintentional act or omission done with the intent to cause damage, the nuclear operator shallhave the right of recourse against the individual acting or omitting to act with such intent; and(ii) if the parties have contractually agreed to entitle the operator to have a right of recourse by
expressly providing it by contract. The impact of a contractual right of recourse can be
minimised via several contractual limitations (e.g. liability can be capped per occurrence or
event, with an amount per day, or with an overall agreement amount). However, a right ofrecourse by law (i.e. a statutory right of recourse) provided by certain national laws (e.g. India)
is a real issue for suppliers.
The right of recourse against suppliers may lead to the following consequences/ impacts:•

absence of insurance coverage for nuclear incidents as a supplier (such coverage isavailable only in the United States according to the Price-Anderson Act, 243 and seems to
be unavailable anywhere else for the time being);•

impossibility to protect the company even by setting up separate legal entities to deal
with nuclear sales to limit financial risks: ultimately, nuclear liability would go up to themother company;•

taking nuclear risks without putting the existence of a company at stake seems to bedifficult due to the scale of a nuclear incident, which can easily lead to the bankruptcy
or liquidation of a company;•

absence of protection of suppliers from third party claims, as it depends on theapplicable law (e.g. Austria);•difficulties to deal with property damage caused by a nuclear incident, as well as withcertain new issues (e.g. cybersecurity);•

issue of unenforceability of hold harmless/indemnity clauses (i.e. the clauses by whicha nuclear operator commits to bear financial responsibility for any claims whatsoever
against the suppliers) in certain national legislations; the same risk exists with regard
to waivers of right of recourse against suppliers, which may be considered as invalid in
certain jurisdictions;•

important reputational risks in case of the involvement of a supplier company in a
nuclear incident;•

different approaches to the risk assessment and the subsequent decision-making toproceed with a contract depending on the size of a company (i.e. big versus small
companies).

As a result, suppliers will take into account all these potential consequences or impacts andbe extremely cautious when doing business in the nuclear sector. In terms of a possible corporate
approach to assess the nuclear-related risks, a legal assessment (external or internal) is usually
performed prior to supply of nuclear goods or services to a country. In the frame of this legal
assessment, the following topics are carefully checked: (1) Has the country ratified any
international nuclear liability conventions? (2) Has the country put in place domestic legislation
governing nuclear liability? (3) What is the third party liability regime established under theapplicable law? (4) What is the status of the neighbouring countries regarding nuclear liability?
(5) Is there any issue with enforceability of waiver clauses under the local legislation?
In addition, the suppliers also look at the criticality of supply, as well as the type andconditions of a nuclear power plant, its location and the intended final use of products andservices supplied to a particular nuclear power plant. After all these reviews, it is up to eachcompany to decide whether it is ready to take the risks that were identified through theassessment process and do business in a particular country.

243 Price-Anderson Act, supra note 39.

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Discussion session
A question arose as to who would be liable if a nuclear operator is exonerated from nuclear
liability, taking into account that the nuclear liability conventions seem to provide a “closed”
system with no options (apart from few exceptions) regarding designation of a liable person orentity in case of exoneration of a nuclear operator from nuclear liability. It was clarified that in
the event of application of exoneration clauses provided under the Paris Convention and Vienna
Convention, there are indeed no provisions which could designate a liable person or entity,
except in the specific cases expressly provided for in the conventions. 244 Therefore, in theory,
nobody will be liable. In practice, however, victims would most probably try to sue the state. In
some countries, an ad hoc national legislation would be adopted should the operator be
exonerated from nuclear liability in case of armed conflict, hostilities, civil war, insurrections,etc. The issue here is that such legislation cannot be adopted in advance, as the states areunwilling to assume such a responsibility per se. In addition, according to the Paris Convention
and the Vienna Convention, if there is no coverage available, the state would step in andeventually may have a right of recourse against the operator. 245
Regarding terrorism, which is currently covered by the nuclear liability conventions, thestate would have to intervene to compensate victims should the operator fail to find financial
security. It appeared that the decision to provide insurance coverage for terrorism is based on
certain criteria which are common to other types of industries and therefore are not specific to
the nuclear industry. There is currently no specific issue regarding the provision of insurance
coverage for terrorism – it is mainly a question of the acceptability of risks and managing theaccumulation of capital in each particular situation.
It was inquired how the Price-Anderson Act 246 reconciles the non-discrimination principle
provided in the CSC, specifically regarding the residence and domicile, with the fact that theplaintiffs’ chance of success will depend on the tort law of a state where the claims will beinstituted, as the proceedings may be taken against various defendants (primarily the operator,
but also contractors, investors, etc.). It appeared that according to US law, anyone regardless ofnationality, residence, domicile, etc., who suffered nuclear damage is entitled to sue on the same
basis as the other victims. The claims commission to be set up by the judge will be empowered todecide who is entitled to claim compensation and how such compensation shall be distributed to
victims.
Another question arose as to whether national legislation that provides a statutory right ofrecourse against suppliers, or the practice of certain operators who may succeed incontractually imposing a right of recourse against their supplier up to the limits of the operator’s

244 Secretariat note: As an example, Article 6(f)(i) of the Revised Paris Convention provides that “The operator
shall have a right of recourse only: (i) if the damage caused by a nuclear incident results from an act oromission done with intent to cause damage, against the individual acting or omitting to act with suchintent […].” The same principle applies in the other nuclear liability conventions. [Italic added by the
Secretariat]
245 According to the paragraph 49 of the Exposé des Motifs of the Paris Convention, “Whatever conditions arelaid down by the competent public authority, something untoward could happen, such as where thefinancial guarantor is bankrupt, or where insurance is per installation for a fixed period and after a firstincident it is impossible to reinstate the financial security up to the maximum liability of the operator.
It was recognised that these circumstances could not set aside the obligation of the operator under
Article 10 or that of the State which is required to ensure that the operator always holds financial
security up to his maximum liability. The Contracting Parties may therefore be led to intervene in sucha situation to avoid their international responsibilities being involved.” Article VII.1 of the Vienna
Convention states that “The operator shall be required to maintain insurance or other financial security
covering his liability for nuclear damage in such amount, of such type and in such terms as the
Installation State shall specify. The Installation State shall ensure the payment of claims forcompensation for nuclear damage which have been established against the operator by providing thenecessary funds to the extent that the yield of insurance or other financial security is inadequate tosatisfy such claims, but not in excess of the limit, if any, established pursuant to Article V.” NEA (1982),
Exposé des Motifs of the Paris Convention, supra, note 109.
246 Supra note 243.

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liability provided in the applicable national law, might be considered violations of the principleof legal channelling. Taking the example of India, some experts considered that the position
taken by the Indian government seems to be consistent with the CSC, because the right ofrecourse against the suppliers provided by Section 17(b) of the CLND Act 247 shall be dealt withby contract negotiations, which is in line with the principles regarding the right of recourse
established in the nuclear liability conventions. As a consequence, suppliers are free not to enter
into a contract or to accept the risk linked to the right of recourse (which will most probably
result in a significant increase of the contract price). The same approach is valid regarding theoperators who insist in imposing a right of recourse on suppliers that would result in the
suppliers bearing the full amount of the operators’ liability for nuclear damage in case of a
nuclear incident. Other experts commented that from the suppliers’ perspective, the Indian
nuclear legislation may remain an important challenge for suppliers who may refuse to take therisk to supply goods or services in that country. Moreover, and from the standpoint of victims,
the right of recourse against the suppliers may put the process of compensation in somejeopardy, as the operator may be tempted to focus on getting the money from the suppliers at
first, rather than proceeding to a quick and smooth indemnification of victims, even though theoperator remains liable and should provide sufficient financial security coverage to indemnify
victims for nuclear damage.
It was also pointed out that, in the absence of treaty relations, provisions of national
legislation regarding the channelling principle should be studied carefully, as they may providethat the channelling principle does not apply in certain circumstances. For example, in the
United States, the channelling principle does not apply if a US company is involved in a project
outside the US territory, as the Price-Anderson Act does not apply in this situation. In case of alawsuit initiated in the United States for a nuclear incident occurring outside the United States,
and unless there are treaty relations, the lawsuit will be subject to the rules of ordinary tort law,which provide for unlimited liability.

Overview of responses to the questionnaire
Entity/ person primarily liable for nuclear damage caused by a nuclear incident
This part of the questionnaire focused on the identification of the liable entity, with the firstquestion related to the entity or person that would be designated as primarily liable for nuclear
damage caused by a nuclear accident under the national legislation of the responding country.
The question encompasses both scenarios, according to which, the responding country may be
the installation state or the affected state.
a) Liable entity or person designated as primarily liable for the nuclear damage caused by the
nuclear accident under the national legislation in case the responding country is an
installation statei)

The majority of the responding countries reported that the principle of legal channelling
applies and that the nuclear operator would be primarily liable under their national
legislation. Examples:–

China: According to Section 2 of the 2007 State Council Official Reply to Questions on
the Liabilities of Compensation for Damages Resulting from Nuclear Accidents – Guo
Han [2007] No. 64, the operator of a nuclear installation shall be liable; 248–

France: Relevant provisions of the Revised Paris Convention in regards to theidentification of the operator would apply;

247 CLND Act, supra note 159.
248 See Section 2 of the Guo Han [2007] No. 64, supra note 155.

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Germany: According to the Paris Convention 249 and relevant domestic legislation, theoperator of a nuclear installation shall be primarily liable;–

Hungary: Under Section 48(1) of the 1996 on Atomic Energy, the licensee of a nuclear
facility shall be obliged to compensate nuclear damage defined pursuant to this Act.250
It is worth mentioning that paragraph (3) of the same Section clarifies that the licensee
shall be the operator;–

United Kingdom: the operator of a nuclear power plant holding a nuclear site licence
under the nuclear legislation licensee is primarily liable for the nuclear damage
caused by such installation. 251ii) A few responding countries reported that their national law does not provide for thelegal channelling. Examples:–

Australia: Domestic law does not provide for the channelling of liability to theoperator. The liable entity could therefore be not only the operator, but a contractor
or manufacturer as well. The Australian government has entered into a Deed ofIndemnity with the Australian Nuclear Science and Technology Organisation, which
provides unlimited indemnity for the operator, which may include contractors,
officers and employees. The consequence of this is essentially economic channellingof liability; 252–

Austria: Compensation can be claimed from the operator of a nuclear installation, but
the injured person can also take legal action against third parties (e.g. the supplier, theconstructor, etc.). This is meant to make sure that the person injured can recover a
maximum of damages, even if it is more than what the operator can pay; 253–

United States: Any person may be potentially liable for public liability (i.e. potentiallysubject to legal liability arising out of or resulting from a nuclear incident or
precautionary evacuation). However, any such person(s) would be indemnified forthat liability by the nuclear operator of the installation that caused the nuclear
incident. 254 In other words, the Price-Anderson Act system operates to channel all
the economic liability, rather than the legal liability, to the nuclear operator as theprimary entity liable for nuclear damage.

b) Liable entity or person designated as primarily liable for the nuclear damage caused by the
nuclear accident under the national legislation in case the responding country is an affected
state
i)

Some responding countries reported that the operator is or would be the liable entity.
Examples:–Finland and Slovak Republic: The nuclear operator would primarily be the liable
entity.

249 See Article 3(a) of the Revised Paris Convention.
250 See Section 48 of the 1996 Act on Atomic Energy, supra note 158.
251 See Article 7B of the NIA 65, supra note 149.
252 For more information on the Deed of Indemnity between the Commonwealth of Australia and theAustralian Nuclear Science and Technology Organisation and ANSTO Nuclear Medicine Pty Ltd, seeAustralian Government (n.d.), “Australian Nuclear Science and Technology Organisation Annual Report 2018-2019,
6. Other information”, available at: www.transparency.gov.au/annual-reports/australian-nuclear-science-andtechnology-organisation/reporting-year/2018-2019-122 (accessed 31 Aug. 2023).
253 See Section 16 of the AtomHG, supra note 136.
254 See Section 11.t. and 11.w of the United States Atomic Energy Act of 1954, supra note 169.

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ii) Several responding countries reported that, as affected states, the identification of aliable entity would depend on the existence of treaty relations with the installation stateof the operator liable. Should this not be the case, general rules of tort law or other rules
may apply. Examples:–

Germany: Article 38 of Atomgesetz provides for specific scenarios (both in case there
are treaty relations with the installation state, and in case there are no such
relations) where victims having suffered damage in Germany cannot, under the ruleof a foreign legislation, obtain the same amount of compensation they would beentitled to under German law. In this case, the state shall grant compensation for
nuclear damage suffered by such victims up to an amount of EUR 2.5 billion; 255–

Netherlands: In the event that the installation of the operator liable is situated in acontracting party to the Paris Convention or in a country that is party to the Vienna
Convention and the Joint Protocol, the operator of such installation would be liable if
the damage was caused by a nuclear incident at its installation, according to Article 3of the Paris Convention or Article II of the Joint Protocol. On the other hand, if thedamage was caused by an incident in a country that is not party to either the Paris
Convention or the Vienna Convention, general tort law would apply;–

United States: Where the CSC applies (i.e. in case the installation state is party to theCSC) only the nuclear operator would be liable for nuclear damage. In addition, theUS courts would not have jurisdiction over such claims, since the installation state
would have exclusive jurisdiction over nuclear incidents at nuclear power plants
located within the installation state. In the event, however, that the CSC does not
apply, any person may be potentially liable for public liability and the US courts could
have jurisdiction. The Price-Anderson Act, however, would not apply.

Several and/or joint liability – Designation of a liable entity in addition or instead of thenuclear operator
National legislation may provide that, in case of a nuclear incident, more than one operator may
be held liable for nuclear damage, or that another natural or legal person may be held liable inaddition to or instead of a nuclear operator (e.g. a parent company or an entity jointly holding
the operating licence of the nuclear power plant where the nuclear incident occurred).
a) Liability of more than one operator for nuclear damage
In answering the question related to the possibility for more than one operator to be held
liable under the national law, 16 responding countries reported that their domestic
legislation does not provide for such possibility. On the contrary, 11 responding countries
mentioned that such possibility is provided under the domestic legislation (see Figures 20.aand 20.b). Examples:•

China: According to Section 5 of the Guo Han [2007] No. 64, “[i]n so far as damage
attributable to more than two operators is not reasonably separable, the operators
involved shall be jointly and severally liable”; 256•

Finland: According to Section 19 of the Nuclear Liability Act, 257 where nuclear damage
gives rise to the liability of two or more operators, they shall be jointly and severally
liable to pay compensation, provided that the liability of each operator shall be limited
to the maximum amount of liability established with respect to the nuclear installation
concerned pursuant to Section 18, subsection 1 of the Act. Moreover, where the damage
has arisen in the course of transport of more than one consignment of nuclear
substances carried on the same means of transport or where more than one

255 See Section 38 of the Atomgesetz, supra note 173. For more information, see also Raetzke, C. (2016) “Nuclear
third party liability in Germany”, Nuclear Law Bulletin, No. 97, OECD Publishing, Paris, pp. 30-31.
256 Guo Han [2007] No. 64, supra note 155.
257 See Article 19 of the Finnish Nuclear Liability Act (No. 484/1972), as amended.

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consignment has been stored in the same nuclear installation incidentally to theircarriage, the aggregate liability of the operators shall not exceed the highest amountestablished with respect to any of these nuclear installations;•

Germany: Based on the assumption that a nuclear event has occurred in a nuclear
installation with several operators, all operators would be held liable according to
Articles 3 and 5(d) of the Paris Convention. This is reflected in paragraph 33(1) of the
Atomgesetz, according to which, “[i]f several parties are legally liable to pay
compensation to a third party for damage caused by a nuclear incident or otherwise by
the effects of nuclear fission or radiation emitted by radioactive material or the effectsof ionising radiation emitted by an accelerator, they shall be jointly and severally liable
to such third party except as otherwise provided for in Article 5 paragraph (d) of theParis Convention”; 258•

United Kingdom: according to Section 17(3) of the NIA 65, where liability is incurred by
two or more “persons”, for the purpose of any proceedings in the United Kingdom bothor all can be treated as jointly and severally liable. 259

Figure 20.a. More than one operator may be held liable

7%
YES

38%

NO
N/A

55%

Source: NEA.

Figure 20.b. More than one operator may be held liable

16

11

2
YES

NO

N/A

Source: NEA.

258 Atomgesetz, supra note 173.
259 NIA 65, supra note 149.

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SESSION 4. IDENTIFYING THE LIABLE ENTITYb) Liability of another natural or legal person that may be held liable in addition to or insteadof a nuclear operatori)

In answering the question related to the possibility under the domestic legislation of the
responding country that another legal or natural person be held liable in addition to or
instead of a nuclear operator, 20 responding countries reported that such provisions
were not included under their domestic legislation (see Figure 21). Examples:–

Germany: Parent companies are obliged to conclude profit and loss transfer
agreements, control agreements or “hard” letters of comfort with the subsidiaries
operating the nuclear power plant. This implies that the entire assets of the groupparent companies are available as liability assets. However, the legal liability remains
with the operator liable;–

Slovak Republic: Section 4(3) of the Act No. 54/2015 Coll stipulates that “liability for
nuclear damage cannot be transferred to another person, unless paragraph 4 provides
otherwise”. 260

Figure 21. Another natural or legal person that may be held liablein addition to or instead of a nuclear operator

20

7
2
YES

NO

N/A

Source: NEA.

ii) A few responding countries confirmed that such a possibility exists under their domestic
legislation. Examples:–

Australia: Australian law does not provide for channelling of liability to the operator.
Therefore, the party that is liable is the party that is found negligent by the court.
This could be a contractor, manufacturer, employee or the operator;–

Austria: The injured party can take legal action not only against the operator, but
against third parties as well (e.g. the supplier, the constructor). In this regard,
Section 18 of the AtomHG provides for joint and several liability insofar as thedamage cannot be attributed to each individually; 261–

Portugal: Under Portuguese general liability rules, a parent company may be deemed
liable for its subsidiary (e.g. where a subsidiary is 100% owned by a parent company);–

United States: In addition to the nuclear operator, any person may be potentiallyliable for public liability, but any such person(s) would be indemnified for thatliability by the nuclear operator of the installation that caused the nuclear incident.
On the other hand, no natural or legal person instead of the nuclear operator would
be held liable, because the funds allocated to pay compensation for public liability

260 Act No. 54/2015 Coll., supra note 156.
261 AtomHG, supra note 136.

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are provided by the nuclear operator in accordance with the system established in
the Price-Anderson Act. 262 Under the NRC regulations, the nuclear operator is thelegal or natural person licensed to operate the plant and is required to enter into anindemnification agreement with the NRC to ensure that the financial protections
provided under the Price-Anderson Act are available to compensate victims.
An entity that is affiliated with the nuclear operator (e.g. a parent company or joint
holding company of the operator) may be liable in addition to the nuclear operator,
but not instead of the nuclear operator.

Exemptions from the obligation of the liable operator to pay compensation under thenational law – Grounds for exonerations from liability
This part of the questionnaire was dedicated to: (i) the exemptions from paying compensationby the operator liable, and (ii) the exonerations of a nuclear operator from liability provided
under the national legislation of the reporting countries, enquiring in addition as to who will becompensating the victims in case such exemptions or exonerations apply.
a) Exemptions from paying compensation by the liable operator
The following exemptions of the liable operator from paying compensation (or part of it) for
nuclear damage were mentioned in the questionnaire: (i) with respect to nuclear damage
suffered from a person whose own gross negligence wholly or partly caused the nuclear
damage, (ii) with respect to nuclear damage suffered by a person who acted or omitted toact with the intent to cause damage, and (iii) any other scenario (see Figure 22). On the basisof the responses received:i)A large majority of the responding countries reported that their national law provides
for at least one or both of these exemptions. Examples:–

Philippines: Both exemptions are enshrined under the relevant domestic legislation;263–

Portugal: Even though both exemptions are provided under the domestic legislation,legal uncertainty exists with regard to the exemption rule provided in Article 10 of
Decree-law 348/89. According to this Decree, the operator’s liability is excluded if it can
prove that, at the time the damage was caused, the facilities, equipment and material
were operating and were used in accordance with technical rules in force and were
perfectly well preserved. However, it is uncertain whether this specific provision could
be considered enforceable and deemed constitutional in light of the international
obligations of Portugal (i.e. as a contracting party to the Paris Convention); 264–

Slovak Republic: The operator may be wholly or partly relieved from its obligation to
pay damages, if it proves that the nuclear damage resulted wholly or partly from thegross negligence of the injured party, whether the negligent act or omission was donewith intent to cause nuclear damage or not. 265ii) Few responding countries reported that under their national law, the liable operator may
not be exempted from paying compensation based on the exemptions provided in thequestionnaire. Examples:–

Austria: According to Section 15 of the AtomHG, the general rule of tort law oncontributory negligence (i.e. Section 1304 of the Austrian Civil Code) applies. 266 In acase where a person who suffered damage, or another person for whose conduct

262 Price-Anderson Act, supra note 39.
263 See Section 40 of the Republic Act No. 5207 Providing For the Licensing and Regulation of Atomic Energy
Facilities and Materials, Establishing the Rules on Liability for Nuclear Damage, and for Other Purposes,
1968 (Official Gazette vol. 65 no. 18).
264 See Decree-law 348/89, 1989 (Official Gazette [Diário da República] no. 235/1989, Série I)).
265 See Section 4(9) of the Act No. 54/2015 Coll., supra note 156.
266 See Section 15 of the AtomHG, supra, note 136.

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he/she is responsible, is at fault, he/she will only get a part of the compensation orwill not be compensated at all;–United States: The Price-Anderson Act does not provide for such exemptions.

iii) It should further be noted that a few countries reported that even though exemptions
from paying compensation exist under the national law, other options may be available
to the operator. In Japan, the operator can benefit from a suspension of compensation
payments in respect of damage expected to be compensated under the Insurance Act for
the Compensation of Work Accidents (Act No.50 of 1947).

Figure 22. Under your national law, the liable operator may be exempt
from paying compensation (or part of it) with respect to:nuclear damage suffered by a person whose own
gross negligence wholly or partly caused the nuclear
damage19

nuclear damage suffered by a person who acted oromitted to act with the intent to cause damage

20

any other scenarios

3
0

5

10

15

20

25

Source: NEA.

b) Exonerations of the operator from liability
The following exonerations from liability of the operator for nuclear damage were mentioned
in the questionnaire: (i) armed conflict, (ii) hostilities, (iii) civil war, (iv) insurrection, (v) grave
natural disaster of an exceptional character, and (vi) any other scenario (see Figure 23). On thebasis of the responses received:
i)Approximately two thirds of the responding countries reported that their national law
provides for one or more ground for exoneration of the operator from nuclear liability.

Figure 23. Number of countries providing for each of the grounds
for the exoneration of the liable operator
armed conflict

21

hostilities

21

civil war

20

insurrection

19

grave natural disaster of an exceptional character12

any other scenario

2

N/A

6
0

5

10

15

20

25

Source: NEA.

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ii) Some countries reported that their national legislation does not provide for cases ofexoneration of the operator from nuclear liability as mentioned in the questionnaire.
Examples:–Austria: The relevant national legislation does not provide for these grounds ofexoneration for the operator of nuclear installations. However, they will play animportant role for the determination of the liability of other persons (i.e. suppliersand constructors) as their liability is fault-based;–

Germany: National law does not provide for exoneration from liability mentioned in
the questionnaire. However, if the damage occurs in another country, the liability
shall only apply insofar as such other country, at the time of the nuclear incident,
has provided for a system of compensation in relation to the Federal Republic of
Germany which is equivalent as to nature, terms and amount. 267

iii) Two responding countries reported that other possibilities might be taken into accountunder the national law in regard to the liable operator’s exoneration circumstances:c)–

India: Terrorism constitutes a supplementary ground for exoneration from theoperator’s liability; 268–

Portugal: Article 10 of Decree-Law 348/89 might be interpreted by the competentcourts as providing a supplementary ground for exoneration for the operator’s
liability. 269

Entity or person that will be compensating the victims in case the operator is exemptedfrom the obligation to compensate or exonerated from nuclear liability.
A variety of answers have been provided to this question.
i)Some responding countries reported that the state would have to step in, should such asituation occur. Examples:–

Australia: Even though there is no provision in the law covering such situations, it islikely that compensation would be provided by way of special government emergency
funds;–

China: The state would be liable to compensate victims on the basis of national
disaster relief law and regulations;–India: According to Section 7(1) of the CLND Act, the Central government would becompensating victims in case the liable operator is exonerated;–

Italy: The state would be compensating the victims in these circumstances.

ii) Canada and the United Kingdom: It is up to the Parliament’s discretion to decide whowill compensate nuclear damage in these cases.
iii) For some other countries, general law provisions would apply. Examples:–

Poland and Slovenia: Civil tort law would apply;–

United States: When the Price-Anderson Act does not apply, customary Federal law
or the law of the state in which the nuclear incident occurred, would apply todetermine who and how victims would be compensated.

267 See Section 25, para. 3 of Atomgesetz, supra note 173.
268 See Section 5 of CLND Act, supra note 159.
269 Supra note 264.

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iv) Some responding countries reported that the losses would be borne by victims.
Examples:–Austria: If victims cannot get compensation under tort law, they must bear their own
loss. However, an exception may be provided by public law rules concerning
indemnification in case of catastrophes;–

Netherlands: National legislation provides only for exemptions from the operator’s
obligation to pay compensation, leaving aside any grounds of exoneration; in thecase of exemption, the persons having caused the nuclear damage will have to bear
the costs related to their own damage.

v) However, in case the operator is exempted from the obligation to compensate, several
responding countries reported that either there will be no entity stepping in tocompensate victims, or the obligation to compensate will remain with the operator.
Examples:–Belgium and Slovenia: Compensation may not be applicable in the case of theoperator’s exemption, should nuclear damage be caused by a person (other than theoperator) acting with gross negligence. In regard to nuclear damage caused by aperson’s action or omission to act with the intent to cause damage, Belgium reported
that authorities are expected to take the appropriate measures, while Slovenia
pointed out that general tort law will apply;–

Canada and Poland: National legislation provides for the operator’s exemption fromthe obligation to compensate only for nuclear damage suffered by a person, who
acted or omitted to act with the intent to cause damage. In this case, no one willcompensate such person for nuclear damage, to the extent that the operator isexempted from providing compensation;–

Romania: Should the operator be exempted from the obligation to pay compensationin cases provided in the questionnaire, the person that caused nuclear damage will
have to pay. Similarly, in Ukraine the legal or natural person found guilty for causing
damage will have to compensate such damage.

Liable operator’s right of recourse
This part of the questionnaire focused on the liable operator’s rights of recourse allowed under
the relevant national law. Three options were provided in the questionnaire: (i) a right ofrecourse against the individual (natural person) who acted or omitted to act with the intent tocause damage; (ii) a right of recourse expressly provided by contract; and (iii) any other scenario(see Figure 24).
a) The majority of the responding countries reported that under their national law, theoperator liable is entitled to exercise a right of recourse (i) against the individual (natural
person) who acted or omitted to act with the intent to cause damage, and/or (ii) if such rightis expressly provided by contract.
i)

For some countries, such rights of recourse can be exercised according to the relevant
provisions of the international nuclear liability convention to which the responding
country is party. Examples:–

Czechia: Express provisions may not be found under the national law, but therelevant provisions in the Vienna Convention could apply;–

France and Germany: The relevant provisions of the Paris Convention would beapplicable.

ii) Several responding countries reported that such rights of recourse are expressly
provided under their national law, but not necessarily under the nuclear liability-related
legislation. Examples:–

Austria: The right of recourse for the liable operator is provided in Section 19(3) ofthe AtomHG;

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Philippines: Rights of recourse are provided under Section 39 of the relevant
domestic legislation; 270–

United Kingdom: The NIA 65 does not give an operator any automatic rights ofrecourse, but common law of tort and/or contract may provide such rights in certain
scenarios. 271 Similarly, Poland reported that there are no relevant provisions under the
Polish Atomic Energy Act, but provisions under the Polish Civil Code would apply.

iii) A few responding countries reported that other scenarios may be envisaged undernational law, allowing thus the operator to have rights of recourse. As an example:–

India: According to Section 17(b) of the CLND Act, the operator shall have a right ofrecourse if the nuclear incident has resulted as a consequence of an act of the
supplier or his employee, which includes supply of equipment or material withpatent or latent defects or sub-standard services. 272

Figure 24. Under your national law, the liable operator
is entitled to have a right of recourse
against the individual (natural person) who acted oromitted to act with the intent to cause damage23

if expressly provided by contract20

any other scenarios

2
0

5

10

15

20

25

Source: NEA.

Session 4 – Conclusions
i)

Legal channelling/economic channelling: An important principle of nuclear liability that
ensures prompt compensation (e.g. no litigating fault, liable entity pre-identified) andcertainty to investors/suppliers during contractual negotiations;ii) Right of recourse of the operator against suppliers has the potential to undermine
channelling and increases suppliers’ prices. All conventions limit this right to a narrow
range (intentional tort and mutually agreed contractual provision). Some national laws
provide for a statutory right of recourse (e.g. India, Korea). If the operator and the
supplier cannot reach a mutual agreement, suppliers may opt not to sign contracts dueto the financial risk and the lack of insurance;iii) Concepts triggering exonerations under nuclear liability conventions need to be further
specified, especially as technology evolves (e.g. a cyberattack may be considered an act
of war). This also applies to terrorism, for which an operator is liable (should it still be
the case, as some may consider terrorism an act of war and there might be sporadic
problems to find insurance?).

270 See Section 39 of the Republic Act No. 5207 Providing For the Licensing and Regulation of Atomic Energy
Facilities and Materials, Establishing the Rules on Liability for Nuclear Damage, and for Other Purposes,
1968 (Official Gazette, vol. 65 no. 18).
271 NIA 65, supra note 149.
272 See Section 5 of the CLND Act, supra note 159.

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SESSION 5. CLAIMS HANDLING

Session 5
Claims handling

Mr Juraj Chochol, Chair of the Slovak Nuclear Insurance Pool, Head of Non-life Department,
KOOPERATIVA poisťovňa, a.s. and Chair of Session 5, noted that the revised nuclear liability
conventions provide for higher liability limits for nuclear operators, introduce new heads ofdamage and establish other additional requirements, such as the extended prescription period forloss of life or personal injury. This may create some difficulties for nuclear operators as, dependingon the country, adequate financial securities to comply with these new requirements may or may
not be available on the private insurance market. Existing insurance gaps force the operators tolook for alternative sources of financial security. The first part of this session focused on thealternative forms of such financial security and their impact on claims handling, while the second
part covered certain issues of management of transboundary claims by the insurance pools.

Claims handling: Is it always the insurer?
Mr Marc Beyens, General Counsel Energy BeLux, ENGIE Electrabel, emphasised that it is widely
acknowledged that the nuclear industry would not have developed to its current state were it notfor the important contribution nuclear insurers made, and continue to make, in providing
financial security that the operators of nuclear installations must have and maintain to cover their
nuclear third party liability according to the international nuclear liability conventions. However,in certain countries nuclear insurers may be reluctant to commit themselves to cover some of therisks, which may lead to a situation where the operators have to seek for alternative means offinancial coverage.
The obligation for the nuclear operators to have and maintain financial security(ies) is oneof the cornerstones of the protection mechanisms provided under the international nuclear
liability conventions. 273 Moreover, the conventions require that the installation state provide thenecessary funds to the operator if insurance or other financial security is not available orsufficient to satisfy nuclear damage claims, up to the operator’s nuclear liability amount. 274

273 Article 10(a) of the Paris Convention and the Revised Paris Convention requires the operator “[…] tohave and maintain insurance or other financial security […]” for the nuclear liability amountestablished by the Convention. Article VII. 1 of the Vienna Conventions provides that “The operator
shall be required to maintain insurance or other financial security covering his liability for nuclear
damage in such amount, of such type and in such terms as the Installation State shall specify.” Article
5 of the CSC Annex contains similar provisions. For information on the conventions ratified by theconcerned states and the currently applicable nuclear liability amounts and financial security limits,
see the Nuclear Operators’ Third Party Liability Amounts and Financial Security Limits table, available at:www.oecd-nea.org/liability-amounts (accessed 31 Aug. 2023). For information on financial coveravailable in the respective Contracting Parties to the Paris Convention, see the Contracting Parties to theParis Convention: Availability of Financial Security to Cover Heads of Damage as Required Under the Paris
Convention, available at: www.oecd-nea.org/cppc-financial-security (accessed 31 Aug. 2023).
274 See Article 10(c) of the Revised Paris Convention, Article VII.1 of the Vienna Convention, Article VII.1.(a)of the Revised Vienna Convention, Article 5 of the CSC Annex.

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It is worth noting that the entry into force of the Revised Paris Convention has been delayed,
among other factors, due to the reluctance of the private insurance industry to provide coverage
for: (i) the extended prescription period (i.e. for actions brought with respect to loss of life or
personal injury from 10 to 30 years from the nuclear incident); and (ii) some of the new heads ofdamage, such as the costs of measures of reinstatement of a significantly impaired environment,a risk the insurance industry found difficult to assess. Consequently, nuclear operators may not
be able to fully comply with their financial security obligations by means of private insurance only,
and alternative solutions for providing financial security would therefore be needed. For instance,
when the Belgian legislation on nuclear liability was amended in 2014 in anticipation of the entry
into force of the Revised Paris Convention, the Belgian nuclear industry was required by law to
conduct a worldwide market inquiry to find the necessary financial security coverage for therevised nuclear liability amounts provided under the Revised Paris Convention and the Revised
Brussels Supplementary Convention. However, the worldwide inquiry did not yield sufficientresults; therefore, the only alternative for the Belgian nuclear operators was to apply for a financial
guarantee from the Belgian state.
The following alternatives to the private insurance may be considered:
1)

2)

Alternative financial securities from the private sector•

Operators pooling system: 275 This was successfully implemented in Germany 276 and theUnited States. 277 However, it requires that a sufficiently large number of operatorscomply with the same national nuclear safety regulations;•Mutual insurance companies (or mutuals): Such as the European Liability Insurance for
the Nuclear Industry (ELINI), whose ownership and control are vested in the policyholders(i.e. the insured nuclear operators). The mutuals offer coverage for the new heads ofdamage that the nuclear insurance pools refuse to cover, but they may lack the financial
capacity to cover the total amount of nuclear liability of all their members combined;•

Self-insurance: Such a system may be difficult to accept for the public authorities as
they may fear potential solvency problems of an operator following a nuclear accident;•

Captive insurance (an insurance coverage provided by an insurance company owned by
the operator’s company or a group of companies) or corporate guarantees (a promise bya guarantor, such as a parent company, to pay specific debts or satisfy specificobligations of another party). Similar to self-insurance, the potential solvency problems
for these two types of alternative financial securities are also an issue;•

Private bank alternatives (e.g. bonds, letters of credit): Subject to their availability,
such solutions may be very expensive.

Alternative financial securities from the public sector

As a last resort to cover non-insurable risks with alternative financial securities, the following
kinds of state intervention may be considered:•State insurance: The state acts as a commercial insurer and an insurance contract isconcluded directly between the state and the operator. By contrast, under a state
re-insurance mechanism, the state provides reinsurance to the operator’s insurer(s)(e.g. pools, mutuals or captives) either directly or through a state-owned reinsurer; 278

275 For more information, see Pelzer, N. (2013), “Operators’ pooling arrangement: a national and international
perspective”, paper presented at the OECD/NEA Workshop on Nuclear damages, liability issues andcompensation schemes, 10-11 December 2013.
276 For more information on the German pooling system, see Raetzke, C. (2016), supra note 255, pp. 26-28.
277 The Price-Anderson Act establishes a tiered system, where the second tier is provided by pooling
contributions from all US power plant operators. See Price-Anderson Act, supra note 39.
278 Secretariat note: Under such re-insurance mechanism, an insurer lays off risk(s) via the re-insurance to limit
its exposure to a particular loss or series of losses. The re-insurer is not in direct contact with the operator,
the nuclear insurer is the one to manage the commercial relationship with the original insured entity.

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SESSION 5. CLAIMS HANDLING•State guarantee: The state provides a guarantee to an operator and therefore bears therisk of the operator’s insolvency, should it be required to reimburse the funds. Thismechanism does not therefore operate a transfer of nuclear liability risk from the operator
to the state, but rather guarantees victims that compensation will be paid in case ofdefault of the operator, which remains ultimately financially responsible for nuclear
damage. When the state has to pay compensation to victims for damage suffered, it has
the right of recourse against the operator for payments made and the related costs. The
challenge with regard to the state guarantee is the calculation of the fee that has to be
paid by the operators to the state for such financial security (especially with regard to thestate aid regulations). 279

As evidenced, many alternative forms of financial security have been investigated to
remedy certain insurance market gaps. The nuclear operators may need to cover their liability
with more than one type of financial security, in a simultaneous or complementary way. 280
What is the impact of the co-existence of different possible financial coverage solutions on theprocess of claims handling?

Claims handling by other stakeholders than the insurance companies
In a situation where the chosen option includes private insurance, the legal system may leave
it up to the insurers to handle claims (e.g. Canada). In the United States, the insurers would
initially handle the claims, but in case of insufficiency of funds to compensate victims, Congress
will have to take necessary appropriate action. However, in many countries there are no explicit
legal provisions on claims handling. Moreover, the insurers are not necessarily the only party
that can be in charge of claims handling. The operator, public authorities and/or competentcourts can be responsible for handling compensation claims for nuclear damage. 281

State reinsurance mechanism to avoid direct intervention of the state in the claims
handling process
The 2011 report by INDECS Consulting to the UK Department of Energy and Climate Change 282“Structure, and Pricing of Suggested Solutions to Gaps Arising from Paris and Brussels
Implementation” underlines the complexity of the state insurance mechanism due to the need to
involve, at least implicitly, direct commercial relationship with multiple nuclear operators, as well

279 The Belgian state guarantee elaborated to cover the non-insurable heads of damage provided under the
Revised Paris Convention has been cleared by the EC Directorate-General for Competition (“DG
Competition”) on 14 July 2017. It considered that the proposed Belgian state guarantee for nuclear
operators that do not find sufficient civil liability coverage on private insurance markets does notconstitute state aid. Authorisation for State aid pursuant to Articles 107 and 108 of the Treaty on the
Functioning of the European Union – Cases where the Commission raises no objections, OJ C 380(10 Nov. 2017), pp. 1-6.
280 For example, the Belgian nuclear insurance pool “Syndicat Belge d'Assurances Nucléaires” (SYBAN) has
historically covered in full the nuclear liability of the Belgian nuclear operator, Electrabel. However,since the entry into force of the Belgian law to implement the 2004 Protocol to amend the Paris
Convention, Electrabel had to make a worldwide inquiry to find the necessary financial securities tocover its nuclear liability. This led Electrabel to become a member of ELINI in addition to purchasing
insurance from SYBAN. Moreover, since there was no private insurance available to cover the insurance
gaps, Electrabel had to apply for a state guarantee. The requested state guarantee became effective
upon the entry into force of the Revised Paris Convention and the Revised Brussels Supplementary
Convention. Before, Electrabel had two financial security providers: SYBAN and ELINI, who were
supposed co-operate with regard to the claims handling process. The issue in this respect is how theywould interact in case a nuclear accident occurs and requires a claims handling process to be put inplace. This problem is hardly unique to Belgium, as the operators from other Paris Convention states
may also need to find the necessary alternative financial security(ies) to cover the insurance gaps (ifany) following the entry into force of the Revised Paris Convention.
281 For more information, see an overview of the replies to the questionnaire provided later in this Session.
282 INDECS (2011), Report to Department of Energy and Climate Change on Structure and Pricing of Suggested
Solutions to Gaps Arising from Paris and Brussels Implementation, London.

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as multiple direct relationships and contracts. The report states that “[…] in order to provide aninsurance contract, it would be necessary for Government to put in place a structure to document
and invoice insurances, and manage claims brought by the Insureds. This could be done via an
insurance and claims management agreement with a third party administrator, but ultimately
the decision as to whether a claim was payable would have to rest with Government. As well as
the risk of potential conflict with Operators, there would also be a significant hurdle in dovetailingthe insurance provided by insurers for the heads of claim they cover with that provided byGovernment. The risk of conflict between Government, Operators and insurers is high.”
The report points out potential difficulties that may arise when state and private insurance
co-exist. The main finding of the report is that reinsurance is advantageous for the government
for the following reasons: (i) government provides a standard contract to be entered into directly
by insurers, pools, mutual or captives; (ii) government has no direct relationship with theoperators; (iii) government does not need to put in place a direct claim management process withthe operators; and (iv) reinsurance is only triggered if the insurer had a liability to pay the insured
and has paid him/her for the loss (i.e. reinsurance contracts are on a “pay to be paid” basis).
Consequently, the choice for a state reinsurance mechanism makes it possible to side-step therisk of interference between the state and insurers with respect to the claims handling procedure.

Interaction between the nuclear insurance pool, the mutual and the state acting as aguarantor in Belgium
The Belgian nuclear liability legislation does not provide for a state insurance mechanism, but forthe possibility to apply for a state guarantee as a last resort after consulting the international
market for insurance and other financial securities available within the private sector. In practice,such state guarantee became necessary only after the entry into force of the Revised Paris
Convention and the Revised Brussels Supplementary Convention. Consequently, the issue of how
to manage the interaction between the state, as a guarantor, and the private insurance, was raised.
The 2017 Royal Decree establishing the guarantee scheme 283 provides the conditions for
obtaining a state guarantee and contain provisions on claims handling. In accordance with theRoyal Decree, the operator has an obligation to inform the Minister of Finance or his delegate assoon as he has knowledge regarding the existence, the nature and the financial consequencesof a nuclear accident, of the extent of the nuclear damage, of a claim or risk of claims related toalleged nuclear damage, in so far as this relates to the nuclear installation. Furthermore, it isstated that the Minister of Finance organises the claims handling in the framework of theguarantee programme. The Minister can especially conclude any agreement with the insurers
to jointly handle claims, or entrust the insurers to handle claims for the account of the state.
The Minister or his delegate can participate in any claims handling committee established forthis purpose by the insurers. The operator shall provide assistance and co-operation to handle
claims efficiently, and bears the costs of claims handling for the portion of claims falling under
the state guarantee.
The operator must also ensure that the Minister or his delegate can participate as anobserver in each procedure by which the insurers determine together the expected maximum
value of nuclear damage, with a view to determining and later adapting the amount of theirown provisions. A probable maximum loss (PML) is thus determined, representing the expected
maximum value of nuclear damage caused by a nuclear accident for which the operator might
be responsible. The PML is binding on the operator and the state, except if the Minister declaresthat this amount is or has become manifestly unreasonable. If no PML is determined or if the
Minister declares that the PML is manifestly unreasonable, the Minister determines the amountof the PML and adapts it afterwards, in good faith and if necessary by appointing one or moreexperts. All the costs thereof are borne by the operator. The operator cannot conclude any
settlement with any insurer without the prior written agreement of the Minister or his delegate.
However, such agreement can be refused only if the proposed settlement could negatively
influence the interests of the Belgian state.

283 Royal Decree of 10 December 2017 (Belgian Official Journal of 20 December 2017, n° 2017040919).

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SESSION 5. CLAIMS HANDLINGIn conclusion, there is no “one size fits all” solution for the organisation of claims handling.
Private insurance companies are not the only ones that have a role to play in the handling ofliability claims for nuclear damage after a nuclear incident. This will become even truer when
nuclear risk expands beyond the amount of coverage that the insurers can provide, making
alternative solutions, including state intervention, unavoidable. However, lawmakers should
think ahead when deciding to extend the state intervention to partially cover the risk of third
party nuclear damage borne by the operator, as the impact of the co-existence between private
and public financial securities on the management of claims in case of a nuclear accident should
be taken into account.

Claims handling: How to manage transboundary claims?
Mr Alain Quéré, Head Nuclear Energy Risks, Swiss Re/ Pool Manager, Swiss Nuclear Pool (SPN),
explained that the issue of cross-border claims is not specific to the nuclear industry. Natural
catastrophic events (e.g. earthquakes, storms, floods) result in hundreds of claims, the handlingof which the insurers have already experienced. 284 In each case there will be one or two insurers
in charge of each event-related case who will implement their own approach with regard to theclaims handling. Concerning chemical accidents, the situation is slightly different, as many
insurers may be potentially involved in the handling of claims initiated by a variety of victims(e.g. private persons, companies, public authorities) on the grounds of third party liability.
In addition, there are several international legal instruments which are designed to govern thetransboundary impact of an accident and the related claims. 285
Nevertheless, the management of nuclear claims remains somehow special, as a nuclear
incident may involve risks which, “[…] because of their potential magnitude and peculiar
characteristics, could lead to far greater damage being suffered in the case of an accident thanwould normally be the case with conventional industrial activities.” 286 At the beginning, insurers
were reluctant to provide cover for such risks, therefore groups of insurers were formed –nowadays the insurance pools – in order to share these risks. However, the capacity of the nuclear
insurance pools remains limited, compared to the capacity available for non-nuclear activities.
If one compares management of non-nuclear (conventional) and nuclear claims, thefollowing differences may be observed:•

General liability: In a non-nuclear claims regime, rules and product (e.g. general liability,
product liability) differ, while liability could be fault-based or strict; for nuclear claims,
the principles embodied in the international nuclear liability conventions apply, withstrict liability and channelling to the operator;•

Jurisdiction: In conventional claims, there are several possibilities regarding the choiceof a competent court; according to the nuclear liability conventions, the principle of
exclusive jurisdiction applies to nuclear claims;

284 Secretariat note: According to common insurance practice, personal lines insurance policies are in place
to cover property and casualty insurance products that protect individuals from losses they could notafford to cover on their own. Personal lines insurance includes products such as homeowner’s
insurance, flood insurance, earthquake insurance, renter’s insurance, automobile insurance, life
insurance, disability insurance, umbrella insurance and health insurance. These insurance products
protect individuals and families against potentially crushing financial losses caused by fire, theft,natural disasters, death, accidents, lawsuits, illness, etc.
285 See for example the 2003 UN Protocol on Civil Liability and Compensation for Damage Caused by theTransboundary Effects of Industrial Accidents on Transboundary Waters to the 1992 Convention on theProtection and Use of Transboundary Watercourses and International Lakes and to the 1992 Convention
on the Transboundary Effects of Industrial Accidents (UN Doc. ECE/MP.WAT/11-ECE/CP.TEIA/9).
286 For more information, see Schwartz, J. (2022), “Liability and compensation for third party damage
resulting from a nuclear incident”, in NEA (ed.), Principles and Practice of International Nuclear Law, OECD
Publishing, Paris, p. 409, p. 409.

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Limitation periods and limits of liability: There are no standard rules that apply to nonnuclear claims; options for nuclear claims are limited by the nuclear liability conventions(however, national laws may differ);•

Insurance/reinsurance industry: Players for conventional claims are many; however,there are few specialist players for nuclear claims, with concentration of know-how andexperience within the nuclear pools;•

Cross-border claims: Handling of cross-border conventional claims benefits fromextensive experience, compared to a very limited nuclear-claims related experience.

It could be expected that, based on the above analysis as well as on a long experience of
nuclear insurance, the known impact of major nuclear incidents (e.g. the Chernobyl or Fukushima
accidents), a wide adherence to nuclear liability conventions, a common understanding of themain principles that should be implemented if a nuclear incident occurs (e.g. adequate
compensation, non-discrimination, procedures for registering claims, claims handling procedures,
bilateral agreements with neighbouring countries that address transboundary claims handlingissues), there should be a coherent perspective on cross-border claims management. However,
only certain countries have effective claims handling procedures in place, with very few countries
having bilateral agreements on transboundary claims handling. There is a patchwork of national
legislations with regard to the person or entity in charge of claims handling. 287
For insured persons, the most important feature in an insurance policy is knowing what
happens if a loss occurs. With regard to the non-nuclear insurance solutions offered to theindustry, there are important insurance programmes with different layers of insurance ultimately
provided by one primary insurer that will be dealing with the insured person. Regarding nuclear
insurance, there are different players (e.g. private insurance, nuclear insurance pools, states,
mutuals, banks) that have to agree on the claims handling if a nuclear incident occurs.
To organise effective cross-border claims management, multiple challenges need to beaddressed, among them:•Well-organised communication between media, the liable operator, competent publicauthorities, etc. on the basis of a clearly organised communication strategy; in case oftransboundary damage, co-ordination may also include translation, interaction withforeign authorities (if possible, with the help of agreements concluded with foreign
insurance pools);•

A claims registration system that can be activated quickly; to deal with a large numberof claims, establishing a common platform or a unified system composed of different
common platforms in different countries based on an international network could bevery helpful;•

Claims handling as such requires the availability of large claims teams composed ofclaims specialists delivering fast and proactive advice and solutions;•

Claims settlement procedures should be established in advance. The experience gained
from the past major nuclear incidents demonstrates that the available nuclear coverage
may not be sufficient to compensate all the claims. Therefore, the way of sharing theinsurance payments needs to be established beforehand (e.g. priority rules to distributecompensation) with a decision-maker clearly identified, and a common understanding of
how to manage settlement beyond the liability limits;•

Testing is important with all involved parties, including the neighbouring countries;•

There is also the need to have pre-defined procedures, monitoring of regulatory changes,
fraud detection, innovation in claims management (e.g. leveraging digital experience

287 Secretariat note: For more information, see an overview of the replies to the questionnaire provided laterin this Session.

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SESSION 5. CLAIMS HANDLING

and process, operating model) and sharing of claims and customer experience, withpreparation being key in the success of the whole process. 288
Regarding the overall organisation within the nuclear insurance pools, agreements onstandard rules and bilateral agreements between the pools concerning cross-border claims
handling, as well as continuous co-operation between pools and improvement in the establishedprocesses would facilitate compensation in case of a nuclear incident with transboundary effects.
In conclusion, there is a need for co-operation and preparation regarding a nuclear incident
in terms of claims management among all the stakeholders. Insurers are well prepared to takethe lead and be responsible for communication, registration, claims and settlement handling insuch a difficult context as a nuclear incident with transboundary effects.

Discussion session
A question arose as to how insurers deal with a situation where victims from an affected stateshould file their claims for compensation when they do not speak the language, do not know orunderstand the rules of claims handling of the installation state and do not have financial
resources to travel to the installation state to submit their claims. It appeared that if there is abilateral agreement between the countries – at least at the level of the concerned insurance pools– victims can contact the local insurance pool to file claims for compensation. In the absence of a
local insurance pool, victims can contact their local authorities. However, with the current
development of new technologies, victims can also file their claims through a dedicated website.
Indeed, the pools that have developed their own claims handling system have usually establishedso-called “dark websites”, which are to be activated and become accessible should a nuclear
incident occur.
It is also worth mentioning that, in order to address the issue of access of foreign victims to
the competent courts, the Revised Paris Convention and the Revised Vienna Convention providethat the contracting party whose courts have jurisdiction to hear and determine nuclear damage
compensation claims shall ensure that any state may bring an action for compensation on
behalf of persons who are its nationals or who are domiciled or resident in that state, as long as
those persons have agreed to be represented by that state. 289
Regarding the possibility of persuading the government to become a co-insurer of a nuclear
operator, it was explained that in Belgium the operators participated in discussions regarding
different options of financial security to cover nuclear third party liability (among them a state

288 In 2011, the EC, in its effort to explore “common ground amongst the stakeholders on the areas that could
be improved at the EU level in the field of nuclear third party liability”, instituted an informal working
group that discussed, among other issues, transboundary claims handling. The final deliverable included
a set of seven recommendations covering the entire process. This was divided into three parts: 1) claims
registration; 2) claims handling; and 3) claims settlement, involving matters as the establishment of a “onestop shop” for claims registration and recording, and “one single desk” at a national level for claims
handling. Communication, assessment of insurers’ capacities, bearing of the procedural costs andadvance payments were also tackled in the recommendations. For more information on therecommendations elaborated by this working group and on the topics presented during the international
workshop on nuclear liability, co-organised by the EC (DG ENERGY), the European Economic and Social
Committee (EESC) and the Brussels Nuclear Law Association (BNLA) in Brussels on 20-21 January 2014, see
European Commission (n.d.), “Energy”, available at: https://ec.europa.eu/energy/en/content/internationalworkshop-nuclear-liability-files (accessed 31 Aug. 2023).
289 Article 13 (g) of the Revised Paris Convention states that: “The Contracting Party whose courts havejurisdiction shall ensure that in relation to actions for compensation of nuclear damage: (i) any State may
bring an action on behalf of persons who have suffered nuclear damage, who are nationals of that Stateor have their domicile or residence in its territory, and who have consented thereto; and (ii) any person
may bring an action to enforce rights under the Convention acquired by subrogation or assignment.”
Article XI A of the Revised Vienna Convention provides that “the Contracting Party whose courts havejurisdiction shall ensure that in relation to actions for compensation of nuclear damage: (a) any State may
bring an action on behalf of persons who have suffered nuclear damage, who are nationals of that Stateor have their domicile or residence in its territory, and who have consented thereto; and (b) any person
may bring an action to enforce rights under this Convention acquired by subrogation or assignment.”

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guarantee), with no possibility to persuade the government regarding each particular option. In
addition, a number of national elements need to be taken into account in this regard: in Belgium,
there is no public reinsurance available, this is why among the options given to the Belgian
operators, a state guarantee mechanism was chosen to cover non-insurable risks. It is worth
noting, however, that the Belgian state guarantee mechanism is considered a last resort; therefore,
the operators are required to appoint an insurance broker and actively look for insurance or otherfinancial securities (in Belgium and abroad) to replace the state guarantee, and to report to theauthorities on a monthly basis until they can fully cover their liability with a private sector productprovided under the terms and conditions acceptable to the state.

Overview of responses to the questionnairePart I – Financial securities
Financial security option(s) available for the operator to cover its nuclear liability
A large majority of the responding countries reported that various options are open to theoperator to cover third party nuclear liability (see Figure 25). All responding countries indicatedthat the insurance option is available under their national legislation. A state guarantee seems
to be the second most available financial security option, with eight responding countries
reporting that it is provided under their national legislation. Eight responding countries
reported that other options of financial security were made available under their national
legislation, more specifically:•

Belgium: Article 8 of the Law of 22 July 1985 on civil liability in the field of nuclear energy
does not provide an exhaustive list of the financial security options available to theoperators. However, the Minister has the mission to assess the quality and the reliabilityof the proposed coverage; 290•

Canada: The NLCA provides the possibility for the operator to use both, an insurance
provided by an approved insurer and an approved “alternate financial security” for up
to 50% of its liability. Possible forms of “alternate financial security” include letters ofcredit, self-insurance, and provincial government guarantees. The insurance must be
obtained from an insurer approved by the Minister of Natural Resources, containing
only the terms and conditions set out in a standard insurance policy that is approvedby the Minister. Any form of “alternate financial security” used by the operator must be
through an agreement entered into between the Minister and the operator. The
agreement must identify the financial instrument being used as the alternate financial
security, specify its dollar value and set out any conditions that the Minister considers
appropriate, including a requirement that the operator submit reports or allow the
Minister to undertake financial audits in respect of the security or that the operator pay
a fee for the authorisation of the security or for the audits; 291•

Germany: Cover of nuclear third party liability to the amount of EUR 2.5 billion isprovided by two elements: the operator’s mandatory insurance or other financial
security. The first tier of cover corresponding to EUR 256 million is provided byinsurance. The remaining amount of approximately EUR 2.244 billion (i.e. the secondtier) is provided by way of a so-called “solidarity agreement” of the parent companies of
the German nuclear power plant operators; 292

290 See Article 8 of the 1985 Law of 22 July 1985, supra note 168.
291 See Article 28 of the NLCA, supra note 124.
292 For more information on the financial security cover in Germany, see Raetzke, C. (2016), supra note 255,
pp. 20-31.

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Figure 25. Number of countries providing for each of the financial security options

Source: NEA.

•

India: According to Section 8 of the CLND Act, “the operator […] may take out insurance
policy or such other financial security or combination of both, covering his liability
under subsection 2 of Section 6, in such manner as may be prescribed”; 293•

Italy: Article 22(2) of the Law 1860/1962 on the Peaceful Uses of Nuclear Energy as
amended by the Law No.97 of 23 July 2020, provides that “the general conditions of theinsurance policy must be approved by decree of the Minister of Economic Development,in conjunction with the Minister of Infrastructure and Transport and the Minister of
Economy and Finance. In the case of another financial security, this should berecognised as suitable by a decree issued by the Minister of Economic Development, in
conjunction with the Minister of Economy and Finance and the services of the AttorneyGeneral” 294 [unofficial translation by the Secretariat];•

Slovak Republic: Section 6(2) of the 2015 Act on Civil Liability for Nuclear Damage andon its Financial Coverage and on changes and amendments to certain laws describes
the types of financial security available to the operator. In this regard, financial security
may be provided by (i) a domestic legal entity or foreign legal entity associating fundsof several operators; (ii) bank guarantees; (iii) deposit; and/or (iv) any other form offinancial security providing equal coverage; 295•

United Kingdom: The NIA 65 requires the operator to make provision “either by insurance
or by some other means” as approved by the appropriate authority with the consent of
HM Treasury. Accordingly, the options ticked in the list above are options that have been
or would be considered acceptable, but other options may be proposed by an operator; 296•

United States: The NRC regulations implementing the Price-Anderson Act allow nuclear
plant operators to provide financial protection in the form of: (i) an effective policy of
liability insurance from private sources; (ii) adequate resources to cover the required
financial protection; (iii) such other type of financial protection as may be approved by

293 See Section 8 of the CLND Act, supra note 159.
294 See Law on the peaceful use of nuclear energy adopted on 31 December 1962 (Official Journal, GU Serie
Generale n.27 of 30 Jan. 1963) (Law of 31 December 1962, no. 1860) and Law for ratification andimplementation of the 2004 Protocols to amend the Paris Convention and the Brussels Convention
Supplementary to the Paris Convention adopted on 23 July 2020 (Official Journal, GU Serie Generale n.196
of 6 Aug. 2020) (Law of 23 July 2020, no. 97).
295 See Section 7 of theAct No. 54/2015 Coll., supra note 156.
296 See Section 19 of the NIA 65, supra note 149.

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the NRC; or (iv) any combination of the foregoing. An approval to get another type offinancial protection may also be submitted to the NRC, giving a plant operator the
possibility to avail itself of any of the above options to cover its nuclear liability. 297
In answering the question on the existence of a legal obligation for state-owned operators
to have insurance or other financial security to cover their nuclear liability (see Figures 26.a and26.b), almost two thirds of the responding countries reported that such an obligation is provided
under their national legislation. 298 Examples:•

Australia: The obligation for state-owned operators to contract financial security for third
party nuclear liability is provided through a Deed of Indemnity entered into between theAustralian government and the operator of Australia’s nuclear facilities (i.e. theAustralian Nuclear Science and Technology Organisation, an Australian government
agency); 299•

Canada: All operators, whether they are federal or provincial crown corporations or
privately-owned, are subject to the financial security requirements of the NLCA. Only
operators that form part of a federal government department or agency are exempt fromthe NLCA’s financial security requirement, as the federal government self-insures theirrisk. Currently, the only nuclear installation to which this exemption applies is the
SLOWPOKE-2 research reactor at the Royal Military College of Canada, owned by the
Department of National Defence of Canada; 300•

Czechia: There is no difference between state-owned and private operators. All operators
shall arrange insurance covering their liability for nuclear damage with a duly authorised
insurer, if no other financial security is stipulated to cover the nuclear damage liability.
Similarly, in Hungary, the Act on Atomic Energy 301 does not differentiate on the basis of
the public or private nature of the relevant operator;•

Japan: Although the government itself, as a legal person, is not compelled to havefinancial security cover, organisations with an independent legal personality have toobtain one, irrespective of their public or private nature;•

United Kingdom: The state-owned operators are required to have insurance or otherfinancial security to cover their nuclear third party liabilities with the form of covervarying depending on the operator; 302•

United States: The Price-Anderson Act does not distinguish between commercial or
publicly owned reactors (with the limited exception of the Department of Energy), andprovides the NRC the discretion to set the amount of nuclear liability insurance as it
deems reasonable. If the reactor operator is some form of publicly owned power plant(e.g. a plant owned by a local or municipal government, or an entity that is a public
corporation, but in neither case a Federal agency), financial protection is required at

297 Price-Anderson Act, supra note 39.
298 Under paragraph 2 of Article VII of the Vienna Convention, Revised Vienna Convention, and paragraph 2
of Article 5 of the CSC Annex it is provided that: “Nothing [….] shall require a Contracting Party or anyof its constituent sub-divisions, such as States or Republics, to maintain insurance or other financial
security to cover their liability as operators.”
299 The Deed of Indemnity specifically provides for “any loss or liability incurred or suffered by them arisingfrom any proceedings or claim by any person against them for injury to persons or damage to property
caused by Ionising Radiation, whether directly or indirectly.” For more information on the Deed ofIndemnity between the Commonwealth of Australia and the Australian Nuclear Science and Technology
Organisation and ANSTO Nuclear Medicine Pty Ltd, see Australian Government (n.d.), “Australian Nuclear
Science and Technology Organisation Annual Report 2018-2019, 6. Other information”, available at:www.transparency.gov.au/annual-reports/australian-nuclear-science-and-technologyorganisation/reporting-year/2018-2019-122 (accessed 31 Aug. 2023).
300 See Article 27(1) of the NLCA, supra note 124.
301 1996 Act on Atomic Energy, supra note 158.
302 See Section 19(1) of the NIA 65, supra note 149.

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SESSION 5. CLAIMS HANDLING

amounts set by the NRC in its implementing regulations. If the operator is a Federal
agency, the amount set for insurance is zero; however, the Federal agency is stillrequired to provide financial security in the form of an indemnity agreement with the
NRC to cover potential damages for nuclear liability. 303

Figure 26.a. Are state-owned operators legally compelled to have insurance
or other financial security to cover their nuclear liability? (Percentage)

17%
YES
NO

21%

62%

N/A

Source: NEA.

Figure 26.b. Are state-owned operators legally compelled to have insurance
or other financial to cover their nuclear liability? (Number of countries)
18

6

YES

NO

5
N/A

Source: NEA.

On the contrary, a few responding countries reported that state-owned operators would not
be subject to the obligation of providing financial security coverage for third party nuclear
liability, and among them:•

Austria: Section 6(3) of the AtomHG provides that “[t]here is no obligation to insure
where the Federal government (Bund) or State (Land) itself is liable or has assumed theliability of the operator of a nuclear installation for an amount not less than thoseamounts indicated in Paragraphs 1 and 2”; 304•

Slovenia: In accordance with Article 11 of the 2010 Act on Liability for Nuclear Damage,“the insurance of liability for nuclear damage shall not be obligatory for the Republic of

303 See NRC Regulations Title 10, Code of Federal Regulations.
304 See Section 6(3) of the AtomHG, supra note 136.

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Slovenia and all those legal entities under public law, which were established by the
Republic of Slovenia and determined as such by the regulation of the Government of the
Republic of Slovenia”. 305

Existence of national nuclear insurance pools
In answering the question regarding the existence of national nuclear insurance pools, morethan half of the responding countries reported that such pools were established (see Figure 27).
Examples:•France: The French nuclear insurance pool, created in 1957, is an association whichbecame an economic interest group called “GIE” (“groupement d’intérêt économique”)
in 1969 and was renamed into “Assuratome” in 1995. Assuratome members are
insurance and reinsurance companies that provide the GIE with financial resources
allocated to the insurance of nuclear risks;•

Slovak Republic: The Slovak Nuclear Insurance Pool was established as a freeassociation of insurance companies on the basis of the Slovak Insurance Association on
31 July 1997 for the purpose to insure and reinsure nuclear risks.

Figure 27.a. Does your country have a national nuclear insurance pool?

10%
YES
31%

59%

NO
N/A

Source: NEA.

Figure 27.b. Does your country have a national nuclear insurance pool?

17

9
3
YES

NO

N/A

Source: NEA.

305 See Article 11 of the 2010 Act on Liability for Nuclear Damage, supra note 126.

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SESSION 5. CLAIMS HANDLINGNational nuclear operators’ pooling arrangement
In answering the question related to the existence of a national nuclear operators’ poolingarrangement, a very large majority of the reporting countries said that such arrangements are
not in place, with only two responding countries confirming the existence of such an arrangement(see Figures 28.a and 28.b). Specifically:•

Japan: The operation of the Nuclear Damage Compensation and Decommissioning
Facilitation Corporation can be assimilated to a pool; 306•

United States: The Price-Anderson Act establishes a tiered system of financial
protection and indemnification for operators of nuclear power plants. The operator
provides the first tier of compensation from private insurance, currently set atapproximately USD 450 million in damage. The second tier is provided by pooling
contributions from all US power plant operators, with each operator’s contribution
currently set at up to roughly USD 131 million, totalling about USD 13.4 billion. The
amount of this liability limit may change, depending upon the number of nuclear
reactors in operation. It is also possible, if this total liability limit is exceeded, for the US
Congress to act to provide additional compensation as determined necessary.

It is worth noting that in Germany, there is a so-called “solidarity agreement” establishedbetween the parent companies of the German nuclear power plant operators with the aim ofproviding them with the second tier of compensation amounting roughly to EUR 2.244 million,
with the total financial security required at EUR 2.5 billion. The solidarity agreement is binding
for all operators of nuclear installations, which are listed in its annex 1. Each partner shall beara partial debt in the form of a percentage quota calculated for each individual nuclear
installation from the square root of the thermal reactor output. The percentage quotas of theindividual nuclear installations are allocated to the partners on the basis of their participationin the respective nuclear installation, either in full or in part, and together they form the scopeof the guarantee commitment of an individual partner. 307

Figure 28.a. Does your country have a national
nuclear operators’ pooling arrangement

23

4

2
YES

NO

N/A

Source: NEA.

306 For more information on the Nuclear Damage Compensation and Decommissioning Facilitation
Corporation, see NEA (2012), Japan’s Compensation System for Nuclear Damage: As Related to the TEPCO
Fukushima Daiichi Nuclear Accident, OECD Publishing, Paris.
307 For more information on the “solidarity agreement”, see Raetzke, C. (2016), supra note 255, pp. 20-31.

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Figure 28.b. Does your country have a national nuclear
operators’ pooling arrangement

14% 7%
YES
NO
N/A
79%

Source: NEA.

Part II – Claims Handling
Claims handling procedure set up
Among the responding countries, ten countries reported that a claims handling procedure has
been set up in their national legal order. Examples:•

Canada: Insurers are obliged to have their own protocol and are collaborating onagreements for claims administration, with the Nuclear Insurers Association of Canada(NIAC) taking the lead. In respect of claims related to nuclear damage eligible for the
10-30 years’ prescription period, the claims handling procedure is being developed by
the federal government;•

India: Rules related to the claims handling procedure are contained in the CLND Rules.
These rules extensively describe the information that should be included in the claimant’s
application for compensation, as well as the duties and the procedure that the competentorgan (i.e. the claims adjudication authority) should follow in adjudicating the liability andawarding compensation. Moreover, relevant rules on the registration of claims, thepreservation of records and the necessary staff are also included in these rules; 308•

Netherlands: Articles 22 to 29 of the Act of 17 March 1979 Containing Rules on Liability
for Damage Caused by Nuclear Accidents describe the procedure that should be
followed if the total number of claims surpasses the amount of liability of the operator,
involving judicial authorities, the government, insurers and the operator. More precisely,in such a case, the competent court (i.e. the Hague District Court) may forbid payment
in respect of compensation for the damage and appoint a delegated judge to lay down
distribution lists for the available amounts as well as a committee of liquidators, towhich all claims for compensation shall be submitted; 309•

Poland: Articles 102, 104 and 106 of the Atomic Energy Act concern the claims handlingprocedure. Article 102 provides for the establishment of a limited liability fund by theoperator, when claims for damage exceed the amount of the operator’s liability. Article
104 stipulates that claims may be filed directly against the insurance company. Finally,
Article 106 determines the competent court depending on whether nuclear damage
caused by nuclear accident occurred on the territory or outside the territory of Poland.

308 See 2011 CLND Rules, supra note 223.
309 See Articles 22 to 29 of the Act of 17 March 1979 Containing Rules on Liability for Damage Caused by
Nuclear Accidents, as amended (Stb. 2008, No. 509).

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SESSION 5. CLAIMS HANDLINGThe same Article also states that cases related to damage claims proceedings shall be
regulated by the provisions of the Civil Proceedings Code; 310•

Slovak Republic: The Act on Civil Liability for Nuclear Damage and on its Financial
Coverage and on changes and amendments to certain laws contains provisions relevantto the claims handling (e.g. requirement on the establishment of a causal link between
the nuclear damage and the nuclear incident as well as rules on the allocation of funds
for compensation); 311•

Slovenia: National legislation provides a set of general rules guiding the claims
compensation procedure, with provisions on the submission of claims, the assessment of
the nuclear damage to be compensated, the costs related to the management andpayment of compensation claims as well as the relevance of alternative disputesettlement method. 312

Overall, the responses indicate that, on the one hand, there are countries that enshrine intheir national legislation general principles that may guide the establishment of a claims
handling procedure, providing a general legal framework. On the other hand, provisions
included in the domestic legislation of some countries focus on a more detailed description ofadministrative procedure to be followed when administering a claims handling procedure.

Entity responsible for handling compensation claims for nuclear damage in accordance withnational legislation
With regard to the question concerning the entity responsible for handling compensation
claims for nuclear damage under the relevant national legislation, it appeared that the answer
to this question largely depends on the relevant national legislation, as each of the three specificoptions provided in the questionnaire (the insurers, public authorities, and operator) werechosen by approximately the same number of responding countries (see Figure 29).

Number of countries

Figure 29. Responsible for handling compensation claims for nuclear damage

11

12

9

5
2
Insurers/Insurance Public authorities
pool

Operator

Other entities

N/A

Source: NEA.

310 See Articles 102, 104 and 106 of the Act of 29 November 2000 on Atomic Energy, supra note 66.
311 See Section 7 of the Act No. 54/2015 Coll., supra note 156.
312 See Articles 12 to 15 of the 2010 Act on Liability for Nuclear Damage, supra note 126.

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It should be noted that several responding countries said that more than one entity would
be responsible for the claims handling. Examples:•

Austria, Canada and Finland: Insurers or insurance pools, public authorities and theoperator would hold responsibility for handling compensation claims for nuclear
damage. More specifically, in Canada, the insurers are responsible for handling claims
for all heads of damage except bodily injuries from 10 to 30 years and routine emissions
claims, which are covered by separate indemnity agreements between the federal
government and the operators. In this case the federal government (a public authority)is acting as the insurer;•

Hungary and Poland: Claims for compensation would be handled by insurers/insurance
pools and the operator;•

Netherlands and Slovenia: Under the national legislation, insurers/insurance pools
and public authorities would be responsible for the claims handling.

Two responding countries highlighted that their national legislation provides for othertypes of entities, and more precisely:•

France: The operator would be responsible for handling compensation claims to theamount provided under the Revised Paris Convention (i.e. EUR 700 million), while theinstallation state would be in charge of the second and third tiers under the Revised
Brussels Supplementary Convention (i.e. between EUR 700 million and EUR 1.5 billion);•

India: A Claims Commissioner would be appointed by the government of India after anuclear incident occurred to handle relevant claims for compensation. 313

Finally, one country, the United Kingdom, replied that the operator would be responsible forhandling claims for nuclear damage compensation, highlighting, however, that the expectation
would be that the financial security provider would be responsible for handling compensation
claims, including through a third party provider, in accordance with normal insurance practice.

Principles/Rules of co-ordination between different financial security providers, where applicableAnswering the question concerning the existence of any principles or rules of co-ordination
between different entities in case they are providing financial security(ies) to the liable operator,
a few responding countries reported that their national legislation provides for such principles
or rules (see Figure 30). Examples:•

Australia: In terms of the co-ordination between different financial security providers,
the liable operator should first recover from their insurance before invoking the Deed ofIndemnity from the Australian government; 314•

Canada: A “Claims Administration Agreement” (CAA) has been entered into by the NIAC,
the operator and other approved insurers, whereby the NIAC as the lead insurer
administers the claims administration process for the stakeholders in the agreement.
The CAA sets out the roles and responsibilities for each stakeholder in the contract,
including the planned contribution of funds to a trust fund for the payment of claims
following an incident. The CAA also lays out the requirement to convene a “ClaimsGroup” following an incident;

313 See Section 9 et seq. of the CLND Act, supra note 159.
314 Secretariat note: As already mentioned, in the absence of specific nuclear liability legislation, theAustralian government and the operator of Australia’s nuclear facilities, the Australian Nuclear Scienceand Technology Organisation (ANSTO, an Australian Government agency), have entered into a Deed ofIndemnity. The Deed provides for unlimited indemnity from the Australian Government for any loss or
liability caused by ionising radiation, including indemnity for contractors and employees.

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Finland: Even though the Finnish Insurance Contracts Act (543/1994) 315 does not apply
to statutory insurances (i.e. insurance that is mandatory by law), such as the insurance
for nuclear damage, some of the provisions of this Act are, however, referred to in theinsurance terms of the Nordic Nuclear Insurers’ nuclear insurance. More precisely,
Articles 59 and 60 apply to insurance for nuclear damage accordingly, regulating theliability relationship between the insurers and the policyholder (i.e. the nuclear operator)
as well as the issue of the mutual liability of insurers in case the total amount of damage
exceeds the insured amount. 316

Figure 30. Existence of principles/rules of co-ordination between
different financial security providers

N/A
14%

YES
21%
YES
NO
N/A

NO
65%

Source: NEA.

Against whom can the victims directly claim compensation
As shown in Figure 31 (see below), the large majority of the responding countries reported thatvictims may address their claims for compensation to the operator. Furthermore, approximately
one third of the responding countries provide in their national legislation for direct claims forcompensation to the insurers, while only a few countries allow for such claims to be addressed toany financial security provider. Moreover, it is worth noting that a significant number of
responding countries specified that other options are available under their domestic legislation.

315 See the Finnish Insurance Contracts Act No. 543/1994 of 28 June 1994 (Författningssamling 1450) (Finnish
Insurance Contracts Act).
316 According to Article 59 of the Finnish Insurance Contracts Act, “if several insurers have issued
insurance policies to cover the same interest against the same damage or loss each of the insurers is
liable to the policyholder as if it had issued the insurance alone. If the interest is overinsured, measured
by the total amount of the insurance policies taken out, the insured shall not, however, be entitled tocompensation higher than the cost of the damage or loss sustained under the insurance policies, unlessotherwise provided in Section 57 Subsection 2”. Article 60 stipulates that if several insurers are liable
for the same damage or loss and the total of amount of compensation due from the insurers together
exceeds the amount of compensation due to the insured, the insurers' mutual liability is determinedon a pro rata basis. Ibid.

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Figure 31. Against whom can the victims directly claim compensation

26

12
7

3
Operator

Insurer

Any financial
security provider

2

Other options

N/A

Source: NEA.

Among the responding countries having reported that other options are available, such
options represent a variety of relevant entities. Examples:•

Australia: Claims for compensation may also be addressed to suppliers, manufacturers
and constructors. In a similar vein, Ireland highlighted that aside from the operator,
claims may be addressed to the person that is liable for the nuclear damage caused;•

For some countries, it is the state that represents this other option. This is the case forAustria, the Netherlands and the United Kingdom. Japan stated that the Act on
Emergency Measures Related to Damage Caused by the 2011 Nuclear Accident (ActNo. 91 of 2011), enacted specifically for the Fukushima accident, mandated thegovernment to proceed with provisional payment on behalf of the operator liable; 317•

Ukraine indicated that local authorities would be another entity against whom victims
may directly claim compensation, while the United States put forward that such claims
may be directly addressed against any person potentially liable for public liability,
meaning they may potentially be subject to legal liability arising out of or resulting froma nuclear incident or precautionary evacuation.

For an overview of the different combinations of options based on the responses received,
see Figure 32 below:

Figure 32. Combination of different options of entities against
whom victims may directly claim compensation
All options

1

Operator only

12

Operator /Insurer only

4

Operator/Insurer/Financial Security Provider

3

Operator/Other Options

3

Operator/Insurer/Other options

3

N/A

2
0

2

4

6

8

10

12

14

Source: NEA.

317 For more information on the Act on Emergency Measures Related to Damage Caused by the 2011 Nuclear
Accident (Act No. 91 of 2011), see NEA (2012), Japan’s Compensation System for Nuclear Damage: As Related
to the TEPCO Fukushima Daiichi Nuclear Accident, pp. 237 et seq., OECD Publishing, Paris.

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Applicable time limitation for bringing compensation claims
The time limitation that applies to filing claims for compensation of nuclear damage is crucial tothe claims handling process. All nuclear liability conventions provide for such a limitation, andleave at the discretion of each contracting party the right to extend them. The right tocompensation is prescribed or extinct if no action is brought before a competent court within acertain period of time, and is also subject to the “discovery rule” pursuant to which any claim
must be made within a certain period of time from the moment the victim has knowledge of, or
should have had knowledge of, the nuclear damage and the identity of the operator liable. 318
Several responding countries reported that their domestic legislation complies with therelevant provisions of the conventions to which they are parties. Examples:•

Belgium, the Netherlands, Sweden and the United Kingdom reported that theirdomestic legislation follow Article 8 of the Revised Paris Convention;•

Czechia, Hungary and Slovak Republic pointed out that, according to Article IV of theVienna Convention, the ten-year prescription period is applicable under their domestic
legislation;•

Canada and Romania reported that the applicable time limitations are consistent with
Article 9 of the CSC Annex and Article VI of the Revised Vienna Convention.

Some other responding countries reported that their domestic legislation complements theapplicable time limitations provided under the conventions to which they are parties. Examples:a)b)Paris Convention countries–

France: In the event of an accident occurring within the territory of the French Republic
and being recognised by the Paris Convention as falling within the jurisdiction of a
French court, the French state shall likewise pay compensation for damage which,having manifested itself more than 10 years after the accident, cannot be claimed.
Claims for compensation must be brought against the French state no more than five
years after expiration of the ten-year period after the accident; 319–

Germany: Domestic legislation contains provisions related to the precedence before
courts of claims for death or personal injury under specific circumstances and thesuspension of the limitation period in case of negotiations taking place between theoperator and the claimant. 320

Vienna Convention countries–

Poland: Claims for redressing nuclear damage suffered by an individual do not expire
throughout the concerned individual’s lifespan; 321

318 Secretariat note: According to the Paris Convention and the Vienna Convention, the right for compensation
is extinguished if no action is brought within ten years from the date of the nuclear incident (see Article 8of the Paris Convention and Article VI of the Vienna Convention). Furthermore, both Conventions containprovisions stating that the law of the competent court may establish a period of not less than two years(for the Paris Convention) or three years (for the Vienna Convention) for the extinction of the right or as aperiod of limitation either from the date at which the person suffering damage has knowledge or from thedate at which he ought reasonably to have known of both the damage and the operator liable. The Revised
Paris Convention and the Revised Vienna Convention provide for an extended prescription period of 30
years for nuclear damage claims for loss of life or personal injury (see Article 8 of the revised Paris
Convention and Article VI of the revised Vienna Convention). Furthermore, the “discovery period”
provided in both conventions is not less than three years. With regard to the CSC, Article 9 of the CSC
Annex provides for a general ten-year period of extinction for rights of compensation, and a “discovery
period” of not less than three years.
319 See Article L. 597-17 of the French Environmental Code issued by Order No. 2012-6 of 5 January 2012
(Official Journal of the French Republic of 6 Jan. 2012, p. 10).
320 See Section 32 of the Atomgesetz, supra note 173.
321 See Article 105 of the Act of 29 November 2000 on Atomic Energy, supra note 66.

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SESSION 5. CLAIMS HANDLING–c)Ukraine: Claims related to loss of life of personal injury are not barred by thelimitation period.

CSC countries–

India: The “right to claim compensation for nuclear damage shall extinguish, if suchclaim was not made within a period of (i) 10 years in the case of damage of property;(ii) 20 years in the case of personal injury to any person from the date of occurrenceof the incident”; 322–

United States: There is no single applicable time limitation. The statute of limitations
on compensation claims for public liability under the Price-Anderson Act would bedetermined based on the law of the state within the United States in which thenuclear incident occurred.

Finally, among the responding countries that have not adhered to any international
nuclear liability conventions, the applicable time limits may vary in accordance with therespective national legislation. Examples:•

Australia: As a general rule, the limitation period for property damage cases is six years
in all Australian jurisdictions, while the limitation period for personal injury matters is
between three and six years from the cause of action. However, there are certain
exceptions and extensions for when the injury remains latent for a period after thecause of action;•

Austria: Section 20 of the AtomHG claims for compensation have to be brought within
three years from the date on which the person entitled to compensation learned of thedamage and the identity of the person liable. Irrespective of this knowledge, thelimitation period shall be thirty years from the date on which the damage was incurred.
Beyond this period, the right of compensation (i.e. the limitation or prescription period)
shall be extinguished, if a claim is not brought before the courts; 323•

China: According to Section 6 of the 1986 State Council's Written Reply Relating to
Nuclear Third Party Liability – Guo Han [1986] No. 44, claims for compensation must be
made within three years after the victim has knowledge or should have had knowledgeof the nuclear damage arising therefrom and, in any event, such claims must be filed
within ten years from the date of the nuclear incident. 324

Class Actions
Answering the question regarding the possibility of grouping compensation claims (“class actions”)
under the national legislation, more than half of the responding countries reported that that theirdomestic legislation does not provide for class actions, while approximately one third of thecountries confirmed that relevant provisions exist under national law (see Figures 33.a and 33.b).

322 See Section 1 of the CLND Act, supra note 159.
323 See Section 20 of the AtomHG, supra note 136.
324 See Section 6 of the State Council’s Written Reply Relating to Nuclear Third Party Liability – Guo Han[1986] No. 44 (Guo Han [1986] No. 44).

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Figure 33.a. Possibility of grouping compensation claims(“class actions”) under domestic legislation

17%

28%

YES
NO
N/A

55%

Source: NEA.

Figure 33.b. Possibility of grouping compensation claims(“class actions”) under domestic legislation

16

8
5

YES

NO

N/A

Number of countries
Source: NEA.

Among a few responding countries whose national legislation provide for class actions, thefollowing examples can be given:•

Australia: Representative proceedings (i.e. class actions) are provided under Part 10 of
the Civil Procedure Act 2005 (NSW). 325 In New South Wales, the Supreme Court has
jurisdiction for class actions. Proceedings are generally brought by seven or more
persons where the claims arise out of the same, similar or related circumstances andwhich give rise to a substantial common question of law or fact;

325 See Part 10 of the Civil Procedure Act 2005 (NSW) No. 28, as amended (NSW Government Gazette No.
100 of 10 August 2005).

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SESSION 5. CLAIMS HANDLING•

Netherlands: The main mechanism in relation to class action is laid down in
Article 7:907 of the Dutch Civil Code; 326•

Poland: According to the Act of 17 December 2009 on Pursuing Claims in Group
Proceedings, 327 at least ten persons can claim compensation as a group in the civil court.
For each member of the group, the amount of compensation must be the same, unlessthe group is divided into several sub-groups (then the amounts must be the same withinthese sub-groups). In the proceedings, the group is represented by one person(a member of the group or a local consumers’ spokesman), but the lawsuit must bepresented in the court by a professional lawyer;•

Sweden: Such type of action is allowed according to the Group Proceedings Act, whichorganised the institution of a class action, the conditions that need to be fulfilled aswell as procedural rules related to the proceedings before the court. 328

It is worth mentioning that for the United States, Section 170.n(2) and (3) of the Atomic
Energy Act may direct towards class actions. 329
Regarding the possibility for the concerned state to organise a class action, approximately
two thirds of the responding countries acknowledged that domestic legislation does not provide
for such a possibility, while almost one fifth of the responding countries confirmed theexistence of relevant provisions under national law (see Figures 34.a and 34.b).

Figure 34.a. Possibility of a class action organised by the state

10%

21%
YES
NO
N/A

69%

Source: NEA.

326 According to Article 7:907(1) of the Dutch Civil Code (Stb. 2005, No. 340), “An agreement for the purpose ofcompensating damage caused by an event or by similar events, concluded between one or more
foundations or associations with full legal capacity and one or more other parties, who have engaged
themselves under this agreement to pay compensation for that damage may, upon the joint request ofthese foundations, associations and the other parties, be declared binding by the court for (other) persons
to whom the damage was caused, provided that the foundations or associations represent the interests of
those persons pursuant to its articles of association (articles of incorporation). Persons to whom thedamage was caused, shall be deemed to include persons who have acquired a debt-claim with respect tothat damage under universal or particular title”.
327 Act of 17 December 2009 on Pursuing Claims in Group Proceedings (Journal of Laws 2010.7.44 of 18 January2010).
328 According to Section 8 of the Group Proceedings Act (SFS 2002:599), “A group action may only be considered
if 1. the action is founded on circumstances that are common or of a similar nature for the claims of themembers of the group, 2. group proceedings do not appear to be inappropriate owing to some claims ofthe members of the group, as regards grounds, differing substantially from other claims, 3. the larger partof the claims to which the action relates cannot equally well be pursued by personal actions by themembers of the group, 4. the group, taking into consideration its size, ambit and otherwise is appropriately
defined, and 5. the plaintiff, taking into consideration the plaintiff’s interest in the substantive matter, theplaintiff’s financial capacity to bring a group action and the circumstances generally, is appropriate torepresent the members of the group in the case”.
329 United States Atomic Energy Act of 1954, supra note 169.

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Figure 34.b. Possibility of a class action organised by the state

20

6

3

YES

NO

N/A

Number of countries
Source: NEA.

Only six responding countries confirmed that their national legislation provides that thestate may organise class actions, and among them:•Belgium: Article 28/2 of the Law of 22 July 1985 on civil liability in the field of nuclear
energy allows the Belgian state to act on the behalf of the victims situated on the Belgian
territory in case of a nuclear accident abroad for which a Belgian tribunal is notcompetent, as far as those victims have agreed to be represented by the Belgian state; 330•

Slovenia: Article 13(g) of the Revised Paris Convention would apply directly; 331•

United Kingdom: The Secretary of State may bring proceedings (and represent UK
claimants with their consent) for claims in the court of a relevant territory in case anuclear incident gives rise to liability under relevant foreign law and it is a claim whichis to be determined by a court in a relevant territory. 332

Transboundary claims handlingAnswering the questions regarding the existence of any specific procedure for handlingtransboundary claims under the domestic legislation, only two responding countries confirmedthat a specific procedure related to the handling of claims for transboundary nuclear damage
has been set up (see Figure 35), more specifically:•

Canada: The NIAC, as lead insurer administering a centralised claims administration
process for stakeholders, may settle transboundary claims that are insured claims
under the approved Operator’s Policy form, subject to the limit of liability and/or theestablishment of a Tribunal;•

United Kingdom: According to Section 17D of NIA 65, any person may claim but also thegovernment of a foreign country may bring and conduct proceedings for qualifying
claimants – those who are nationals of that country or domiciled or resident in thatcountry. 333

330 See the 1985 Law, supra note 168.
331 See Article 13(g) of the Revised Paris Convention, which provides that “If a Contracting Party is of theopinion that a communication required in accordance with this Article has not been made within thetime prescribed in this Article, it may raise objections only by addressing them to the Belgian
Government within three months from the date on which it knew of the facts which, in its opinion,
ought to have been communicated.”
332 See Section 17E of the NIA 65, supra note 149.
333 See Section 17D of the NIA 65. Ibid.

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SESSION 5. CLAIMS HANDLING

Figure 35. Transboundary claims handling procedure already set up
23

4

2
YES

NO

N/A

Source: NEA.

Moreover, among the countries that confirmed the absence of any provisions relevant totransboundary claims handling procedure, the Unites States clarified that the absence of sucha procedure is explained by the fact that the Price-Anderson Act does not differentiate among
damage claims on the basis of where or by whom damage is suffered. Instead, it covers damage
wherever suffered on the same basis without discrimination.

Bilateral (or multilateral) agreement with neighbouring countries that addresses transboundary
claims handling issues
Concerning the existence of bilateral or multilateral agreements with neighbouring countries
addressing transboundary claims handling issues, a very large majority of responding countries
reported that they have not signed such agreements. On the contrary, only two countries (Austria
and the United Kingdom) confirmed that they are bound by such agreements (see Figure 36).

Figure 36. Bilateral (or multilateral) agreement with neighbouring countries
that addresses transboundary claims handling issues
23

4

2
YES

NO

N/A

Source: NEA.

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Session 5 – Conclusionsi)

As nuclear insurance pools are cautious regarding all new heads of damage (and more
specifically the 10-30 years prescription period), operators need to find alternative
financial securities, such as mutuals and state reinsurance or guarantees, which requirethat co-ordination be specified beforehand to avoid impacting smooth claims handling;ii) Transboundary claims handling is not exclusive to the nuclear industry, but has its particularities(e.g. specific liability regime, very limited number of precedents, responsible entities forclaims handling, if identified, may differ from one country to another, and victims may
direct claims to different entities according to their applicable national law). Based onthese specifics, transboundary claims handling requires a more harmonised framework.
Other potential challenges to be faced are: the language barriers and communication
issues, and the registration process. Therefore, it is vital to establish predefined proceduresand hold preparatory exercises with all concerned parties;iii) Nuclear insurance pools address transboundary claims handling: Whether bilaterally (forsome) or within the Nuclear Pools’ Forum, existing shadow websites will be madeoperational in case of an accident. However, there are outstanding questions that need
to be fully addressed: who is responsible for communication, registration, claims
handling or making settlement decisions?

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SESSION 6. RESOLVING DISPUTES

Session 6
Resolving disputes
Prof. Yvonne Scannell, Trinity College Dublin, Judge of the European Nuclear Energy Tribunal
and Chair of Session 6, highlighted the main subjects of discussion for this session: (i) how toresolve disputes; (ii) the appropriate forum; and (iii) how to enforce the decisions.

Resolving disputes: Alternative Dispute Resolution mechanisms
Prof. Vanda Lamm, President of the Section of Economics and Law, Hungarian Academy of
Sciences and member of the NLC Bureau, reported on the alternative dispute resolution (ADR)
mechanisms and their particularities, with a focus on their procedural aspects. The main featuresof ADRs can be summarised as follows: (i) they offer alternatives to litigation; (ii) only the parties
to the ADR mechanism have a control over the resolution of their dispute (negotiation);(iii) agreed-upon neutral third party or parties are involved to help the concerned parties to cometo an agreement (mediation, conciliation, arbitration); and (iv) there are no plaintiff or defendant;
in most cases dispute end with win-win situation and a compromised solution.
There are two kinds of general dispute resolution provisions in the nuclear liability conventions:
1)Interstate disputes

They represent the disputes between the contracting parties concerning the interpretation orapplication of the relevant conventions. It is worth noting that the Vienna Convention does nothave provisions on the resolution of interstate disputes, which have been introduced in the
Revised Vienna Convention. However, the 1963 Optional Protocol to the Vienna Convention
provides for compulsory settlement of disputes by the International Court of Justice, unless theparties agree to resort to an arbitral tribunal or to adopt a conciliation procedure. 334 The Revised
Vienna Convention provides for an interstate dispute resolution mechanism, which contains
different stages, including an ADR option (amicable settlement, and then if unsuccessful,settlement by arbitration or by the International Court of Justice). 335

334 See Article I, II and III of the Optional Protocol Concerning the Compulsory Settlement of Disputes (1963),
IAEA Doc. INFCIRC/500/Add.3, entered into force on 13 May 1999.
335 Article XX.A of the Revised Vienna Convention states that “1/. In the event of a dispute between
Contracting Parties concerning the interpretation or application of this Convention, the parties to thedispute shall consult with a view to the settlement of the dispute by negotiation or by any other peacefulmeans of settling disputes acceptable to them. 2/. If a dispute of this character referred to in paragraph 1of this Article cannot be settled within six months from the request for consultation pursuant toparagraph I of this Article, it shall, at the request of any party to such dispute, be submitted to arbitration
or referred to the International Court of Justice for decision. Where a dispute is submitted to arbitration,
if, within six months from the date of the request, the parties to the dispute are unable to agree on theorganization of the arbitration, a party may request the President of the International Court of Justice or
the Secretary-General of the United Nations to appoint one or more arbitrators. In cases of conflicting
requests by the parties to the dispute, the request to the Secretary-General of the United Nations shallhave priority. 3/. When ratifying, accepting, approving or acceding to this Convention, a State may declarethat it does not consider itself bound by either or both of the dispute settlement procedures provided forin paragraph 2 of this Article. The other Contracting Parties shall not be bound by a dispute settlement
procedure provided for in paragraph 2 of this Article with respect to a Contracting Party for which such a
declaration is in force. 4/. A Contracting Party which has made a declaration in accordance withparagraph 3 of this Article may at any time withdraw it by notification to the depositary.”

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SESSION 6. RESOLVING DISPUTES

Identical provisions are contained in the CSC. 336
It is worth mentioning that there is an open issue left by the provisions of Article XX.A of
the Revised Vienna Convention, which provides that in the event of a failure to reach an
agreement on the designation of arbitrators between the parties within six months, a party may
request the President of the International Court of Justice or the Secretary-General of the United
Nations to appoint one or more arbitrators (provided that the Secretary-General of the UN shallhave priority in case of conflicting requests). Indeed, even if the parties can agree on theorganisation of the arbitration, Article XX.A does not specify what would happen should theparties fail to agree on the rules or the place of arbitration.
The Paris Convention and the Brussels Supplementary Convention also contain provisions on
settlement of disputes. 337 The Revised Paris Convention and the Revised Brussels Supplementary
Convention brought certain changes to the dispute settlement mechanism provided in therespective original conventions to further streamline and clarify the process. 338 The disputesettlement provisions of the Revised Paris Convention and the Revised Brussels Supplementary
Convention contain a particular kind of settlement (mediation-like) providing that where a
dispute between the contracting parties which was not settled through negotiation or otheramicable means within six months from the date upon which such dispute is acknowledged toexist by any party thereto, all the contracting parties to the Convention shall meet to assist theparties to the dispute to reach a friendly settlement.
It should be noted that the Joint Protocol contains no provisions on dispute settlement.

336 See Article XVI of the CSC.
337 Article 17 of the Paris Convention states that “Any dispute arising between two or more Contracting
Parties concerning the interpretation or application of this Convention shall be examined by theSteering Committee and in the absence of friendly settlement shall, upon the request of a Contracting
Party concerned, be submitted to the Tribunal established by the Convention of 20th December 1957 on
the Establishment of a Security Control in the Field of Nuclear Energy”. Article 17 of the Brussels
Supplementary Convention provides that “Any dispute arising between two or more Contracting Parties
concerning the interpretation or application of this Convention shall, upon the request of a Contracting
Party concerned, be submitted to the European Nuclear Energy Tribunal established by the Conventionof 20th December 1957 on the Establishment of a Security Control in the Field of Nuclear Energy.”
338 Article 17 of the Revised Paris Convention states that “a) In the event of a dispute arising between two or
more Contracting Parties concerning the interpretation or application of this Convention, the parties tothe dispute shall consult with a view to settling the dispute by negotiation or other amicable means.
b) Where a dispute referred to in paragraph (a) is not settled within six months from the date upon whichsuch dispute is acknowledged to exist by any party thereto, the Contracting Parties shall meet in order toassist the parties to the dispute to reach a friendly settlement. c) Where no resolution to the dispute has
been reached within three months of the meeting referred to in paragraph (b), the dispute shall, upon therequest of any party thereto, be submitted to the European Nuclear Energy Tribunal established by theConvention of 20 December 1957 on the Establishment of a Security Control in the Field of Nuclear Energy”.
Article 17 of the Revised Brussels Supplementary Convention provides that “a) In the event of a disputearising between two or more Contracting Parties concerning the interpretation or application of thisConvention, the parties to the dispute shall consult with a view to settling the dispute by negotiation orother amicable means. b) Where a dispute referred to in paragraph (a) is not settled within six months
from the date upon which such dispute is acknowledged to exist by any party thereto, the Contracting
Parties shall meet in order to assist the parties to the dispute to reach a friendly settlement. c) Where no
resolution to the dispute has been reached within three months of the meeting referred to in paragraph(b), the dispute shall, upon the request of any party thereto, be submitted to the European Nuclear Energy
Tribunal established by the Convention of 20th December 1957 on the Establishment of a Security Control
in the Field of Nuclear Energy. d) Where a nuclear incident gives rise to a dispute between two or more
Contracting Parties concerning the interpretation or application of the Paris Convention and of thisConvention, the procedure for resolving such dispute shall be the procedure provided for under Article 17of the Paris Convention.”

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2)

Disputes connected with compensation for nuclear damage

These are disputes between natural or legal persons who have suffered nuclear damage and those
who are providing funds for compensation, such as the operator, insurers, reinsurers, otherfinancial guarantors or the installation state; or, disputes between the state bringing actions onbehalf of persons suffering nuclear damage and those who are providing funds for compensation.
With regard to nuclear liability claims, the nuclear liability conventions provide, as a general rule,that jurisdiction over nuclear damage claims lie only with the courts of the contracting party inwhose territory the nuclear incident has occurred. Where a nuclear incident occurs outside theterritory of the contracting parties or where the place of the incident cannot be determined withcertainty, jurisdiction shall lie with the courts of the state where the liable operator’s nuclear
installation is located (i.e. the installation state). Furthermore judgements rendered by such courts
are to be enforceable in any contracting party. 339
The following ADR mechanisms currently exist under the international legal framework:•

Negotiation: Sometimes referred to as a means of settlement and sometimes as apreliminary resort to other means of settlement. Negotiation includes consultation andexchange of views between the parties, with no third party involved in the resolution
process. Parties decide together not only on the resolution of a dispute, but also on theimplementation of such resolution and its monitoring. It is worth noting that negotiation,
as a preliminary step to other means of settlement, cannot usually delay the legal
proceedings. As already mentioned, some nuclear liability conventions allow negotiations
in case of dispute on the interpretation and application of the conventions, before
submitting the dispute to arbitration or to the decision of an international judicial fora;•

Mediation: It involves an independent mediator who facilitates the resolution processby assisting the parties to negotiate a settlement of a dispute. There are two types of
mediation: the conventional mediation where the parties agree to nominate a third
person to facilitate the process of resolving a dispute; and the court (judicial) mediation,
which is ordered by a judge either upon his/her own initiative (with however anagreement of the parties) or at the request of the parties. Mediation requires the consent
and co-operation of the disputing parties. The mediator’s proposed agreement or
resolution must be accepted by them. This kind of ADR is widely used for dispute
resolution in legal, diplomatic and civil law matters;•

Conciliation: A conciliator meets with the parties, both separately and together, to help
them improve their communication, and encourage and assist them in finding a mutuallyacceptable solution. Conciliation combines the characteristics of an inquiry and amediation, and is sometimes laid down as an alternative to arbitration in international
treaties; 340•

Arbitration: This kind of dispute resolution mechanism is widely used for interstate andcommercial disputes. Arbitration implies involvement of one or more arbitrators – anarbitral tribunal – who impose a resolution. Arbitration proceedings may be based on ad
hoc rules agreed for each particular case, which might take time and requests a

339 See Article 13 of the Paris Convention and the Revised Paris Convention; Articles XI and XII of the Vienna
Convention and the Revised Vienna Convention; and Article XIII of the CSC. The Conventions further
provide that judgments entered by the competent court shall, when they have become enforceable
under the law applied by that court, become enforceable in the territory of any of the other contracting
parties, with the merits of the case not the subject of further proceedings. Moreover, the Revised Vienna
Convention, the CSC and the Revised Paris Convention provide an obligation for the contracting party
whose courts have jurisdiction to ensure that only one single court is competent to rule oncompensation for nuclear damage. Further, they also extend the single court’s jurisdiction where thenuclear incident occurs within the exclusive economic zone of a contracting party.
340 Several multilateral conventions contain provisions on conciliations: the 1969 Vienna Convention on the
Law of Treaties; the 1978 Convention on Succession of States in Respect of Treaties; the 1982 UN
Convention on the Law of the Sea; and 1966 Permanent Court of Arbitration Optional Conciliation Rules.

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preliminary phase, or may be based on existing arbitration rules.341 Arbitrations may also
be “mixed” (i.e. arbitration between two parties, with only one party being a state), anddealt with by institutions specifically created to resolve such types of disputes (e.g. theIran-US Claims Tribunal and the United Nations Compensation Commission). The
experience of these institutions may be relevant to nuclear-related claims, as there are a
lot of similarities (such as the way of handling the claims, the composition of theinstitution and management of different heads of damage). In most cases, arbitral awards
are final; however, it may be possible to review the award based on the application of oneof the parties. The important issue in this regard is the enforceability of arbitral awards.
Usually, domestic legislation governs the relationship between the arbitral tribunals andthe national courts; therefore, it is necessary that arbitral awards be supported by thenational law of the parties. The national legislation may also provide for the recognitionand enforcement of domestic and foreign arbitral awards by the national courts. 342
As a conclusion, the procedures to settle claims according to normal courts practice may berigid, slow and expensive. With regard to the settlement of nuclear liability claims, national judges
might not be experts in nuclear liability law, which is a real issue in several countries. In addition,
the competent courts under the law of the installation state might be remote to the victims who
might face, among other issues, linguistic problems. The ADR mechanisms are less formal, more
flexible, confidential, quicker and less expensive. In the case of nuclear liability disputes, the ADR
mechanisms might be more acceptable, especially in the absence of treaty relations between theconcerned states. Finally, it is preferable to have predetermined rules for each ADR mechanism towhich the parties can swiftly and easily resort to in order to resolve their dispute.

Resolving disputes: Identifying the competent court
Mr Omer F. Brown, II, Partner, Omer F. Brown, II Law Office, reported on the issues related to theidentification of the competent court and factors that might lead to forum shopping. International
nuclear liability conventions provide, as a general principle, that jurisdiction over nuclear damage
actions lies only with the courts of the contracting party within whose territory the nuclear
incident occurred (i.e. “channelling of jurisdiction”). Particularly for transboundary damage,having a single competent court to adjudicate nuclear claims would facilitate an equitable
distribution of compensation, as well as prompt and affordable access to justice, in comparison toclaims made and judgements rendered by courts of different countries to compensate damage
caused by the same incident. 343 This is also important to ensure that the total amount of financial
security to cover liability, if any, is not exceeded, and that damage is covered to the fullest extent
possible. Having only one forum of jurisdiction would help to minimise litigation, and facilitate aconsistent application of the enhanced definitions of “nuclear damage” under the revised nuclear
liability conventions, which provide that the new heads of damage (such as the impairment of theenvironment, preventive measures and economic loss) are covered to the extent determined by
the law of the competent court.
However, referral of nuclear liability disputes to a single competent court in one country is
mandatory only when treaty relations exist between the concerned countries. Although non-

341 Such as the 1958 UN Model Rules on Arbitral Procedure; ICC Arbitration Rules and the UNCITRAL
Arbitration Rules.
342 For the states parties to the 1958 Convention on the Recognition and Enforcement of Foreign ArbitralAwards (the “New York Convention”), this Convention governs recognition and enforcement of arbitralawards rendered in foreign countries. See New York Arbitration Convention (n.d.), “United Nations
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958)”.
343 Following the IAEA Action Plan on Nuclear Safety, INLEX affirmed that states should “ensure that all claims
arising from a nuclear incident are dealt with in a single forum in a prompt, equitable and nondiscriminatory manner with minimal litigation, which could include a claims handling system (which
may be set up in close co-operation with insurers or other financial guarantors) in order to deal
equitably and expeditiously with all claims.” IAEA (2011), “Draft IAEA Action Plan on Nuclear Safety”,
supra note 22 and 2012 “Recommendations on how to facilitate achievement of a global nuclear liability
regime, as requested by the IAEA Action Plan on Nuclear Safety”, supra note 24.

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convention states may have domestic nuclear liability laws providing for a single competent court,
such rules cannot bind the courts of other countries where claims might be brought, which could
result in forum shopping and, potentially, competing lawsuits in different jurisdictions.
1)

Impact of the absence of treaty relations on the unity of jurisdiction: the US lawsuits related
to the Fukushima Daiichi accident

It seems that foreign nuclear operators and suppliers may be concerned about being sued in the
United States courts given that it could be more beneficial to the plaintiffs for several reasons(e.g. potentially higher nuclear liability limits, generous attitude of the US juries, potential
availability of punitive damages, liberal discovery, contingency fees and large damage awards).
With regard to the Fukushima accident, although Japan’s nuclear liability law channels liability
for nuclear damage exclusively to the operator of the nuclear installation where the incident
occurred and provides for unlimited liability, there have been several lawsuits brought before the
US Federal courts beginning in 2012.344 They have been allowed to proceed because the UnitedStates and Japan had no treaty relations according to the CSC at the time of the Fukushima
accident.
These lawsuits confirm what can occur when there are no treaty relations providing for asingle competent court in the territory where the nuclear incident occurred. Litigants engage inforum shopping when they think they can get more favourable outcome in another court,
especially in the event of nuclear damage due to a nuclear incident occurring at a nuclear
installation which has transboundary damage. Therefore, there is a need for treaty relations
between countries that are engaged in nuclear activities to avoid lawsuits before multiple fora
and especially in the United States, as the US courts have demonstrated that they are willing totake jurisdiction over nuclear incidents that occur outside the United States and cause nodamage within the United States. Finally, in the case of litigation without the benefit of thechannelling and strict liability principles provided under the conventions, it can take years
before a final decision is made, which means that victims are not compensated in due time. 345
2) Conventions’ geographical scope

344 Cooper et al. v. Tokyo Electric Power Company, Inc. et al., No. 12CV3032 JLS-WMO (S.D. Calif., San Diego Div.);
Bartel et al. v. Tokyo Electric Power Company, Inc. et al., No. 17CV1671 DMS KSC (S.D. Calif., San Diego Div.);
Imamura et al. v. General Electric Company and “Does 1-100,” No. 1:17CV12278-FDS (D. Mass.); Holland et al. v.
Tokyo Electric Power Company, Inc. et al., No. 18CV000573 (DDC); Park et al. v. Tokyo Electric Power Company, Inc.
and General Electric Company, No. 18CV2121 (S.D. Calif., San Diego Div.). For more information on theselawsuits, see: NEA (2017), “Cooper v. Tokyo Electric Power Company, No. 15-56426 (9th Cir. 2017)”, Nuclear
Law Bulletin, No. 99, OECD Publishing, Paris, pp. 73-74; NEA (2019), “Cooper v. Tokyo Electric Power
Company, Imamura v. General Electric Company, and other US lawsuits related to the TEPCO Fukushima
Daiichi NPP accident”, Nuclear Law Bulletin, No. 102, OECD Publishing, Paris, pp. 84-87; NEA (2020), “UnitedStates lawsuits related to the TEPCO Fukushima Daiichi NPP accident”, Nuclear Law Bulletin, No. 104, OECD
Publishing, Paris, pp. 12-14.
345 Secretariat note: As of December 2021, all of the US lawsuits related to the Fukushima Daiichi accident havebeen dismissed after almost ten years of litigation. On 22 May 2020, the US Court of Appeals for the Ninth
Circuit affirmed the 4 March 2019 decision of the US District Court for the Southern District of California
dismissing the Cooper v. TEPCO & GE lawsuit on grounds of the following: (i) international comity as to
TEPCO, and (ii) that Japanese law with its channeling provision should apply as to GE. Plaintiffs filed apetition for a writ of certiorari with the US Supreme Court on 25 November 2020. On 29 March 2021, the US
Supreme Court denied without comment the certiorari petition filed by Plaintiffs in Cooper v. TEPCO & GE,
seeking to overturn the May 2020 decision of the US Court of Appeals for the Ninth Circuit dismissing thisFukushima-related lawsuit. This effectively ended the Plaintiffs’ lead lawsuit first commenced in 2012. On
20 May 2021, the parties agreed to dismissals without prejudice of the last two lawsuits that had beenunresolved in the US District Court for the Southern District of California and the US District Court for theDistrict of Columbia. Earlier, on 24 April 2020, the US Court of Appeals for the First Circuit affirmed the
9 April 2019 decision of the US District Court for the District of Massachusetts dismissing the separate
Fukushima-related Imamura v. General Electric Company lawsuit on grounds of forum non conveniens. The
deadline for Plaintiffs to seek US Supreme Court review in that case expired on 21 September 2020. That
finally ended the lawsuit brought in Boston by all Japanese plaintiffs on 17 November 2017. For more
information, see NEA (2021), “United States lawsuits related to the TEPCO Fukushima Daiichi NPP
accident”, Nuclear Law Bulletin, No. 106, OECD Publishing, Paris, pp. 31-32.

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Another factor that could result in forum shopping is the scope of application of the convention(s)to which the installation state of the operator liable is a party in case damage is suffered outside
the territory of its contracting parties. 346 Where compensation is not available for foreign victims
under any of the applicable nuclear liability conventions, they could be tempted to engage inforum shopping. Alternatively, even where compensation would be available to victims in nonconvention states, such victims would not be required to sue in the court of the installation stateof the liable operator. Therefore, in the absence of treaty relations, victims could seek analternative forum, particularly in a situation where such forum may offer a higher amount ofcompensation for nuclear damage.
3)

Joint Protocol and reciprocity

According to the Explanatory Text of the Joint Protocol, the Protocol was designed to create a treaty
link or a “bridge” between the contracting parties to either the Vienna Convention or the Paris
Convention in order to extend “the benefit of the special regime of civil liability for nuclear
damage set forth under each Convention and to eliminate conflicts arising from thesimultaneous application of both Convention to a nuclear incident.” 347
The Joint Protocol provides that “either the Vienna Convention or the Paris Convention shallapply to a nuclear incident to the exclusion of the other.” According to Article III of the Joint
Protocol, the applicable nuclear liability convention will be that to which the installation state of
the operator liable is a party to. Liability for nuclear damage shall be determined in accordancewith the national law of such installation state. 348
However, the 2004 Joint Declaration on reciprocity adopted by the contracting parties to the
Revised Paris Convention 349 could impact the application of the Joint Protocol extending full
financial benefits of the Paris Convention to victims in the Vienna Convention/Joint Protocol
states with nuclear installations only conditionally. If the Vienna Convention/Joint Protocol
states were subject to strict reciprocity requirements, their victims’ compensation rights may
be limited. This too could result in forum shopping.

346 Secretariat note: As a reminder, Article 2 of the Paris Convention contains provisions stating that theConvention does not apply to nuclear incidents occurring in the territory of non-contracting states or
to damage suffered in such territory, unless the national legislation of the operator liable otherwise
provides. There is no corresponding provision in the Vienna Convention, which is silent on thegeographical scope of its application. The Revised Vienna Convention provides in its Article I.A that it
applies, in principle, to nuclear damage “wherever suffered”, with an important exception to thisprinciple reflected in Article I. A.2 and Article I. A.3 of the Convention, which provides a possibility forthe national legislation of the installation state to exclude damage suffered in a non-contracting nuclear
state which does not afford equivalent reciprocal benefits. The Revised Paris Convention extends its
geographical scope of application to nuclear damage suffered in the territory of countries mentioned in
its Article 2 (a) (i)-(iv), provided that damage suffered in non-contracting states with nuclear
installations which are not parties to the Joint Protocol, is covered subject to the existence in suchcountries of national legislation affording equivalent reciprocal benefits and based on principles
identical to those contained in the Revised Paris Convention.
347 See the Preamble of the Joint Protocol. See also IAEA (2013), The 1988 Joint Protocol Relating to theApplication of the Vienna Convention and the Paris Convention — Explanatory Text, IAEA International Law
Series No. 5, IAEA, Vienna (Explanatory Text of the Joint Protocol).
348 Article III of the Joint Protocol provides that: “1. Either the Vienna Convention or the Paris Convention
shall apply to a nuclear incident to the exclusion of the other. 2. In the case of a nuclear incident
occurring in a nuclear installation, the applicable Convention shall be that to which the State is a Party
within whose territory that installation is situated. 3. In the case of a nuclear incident outside a nuclear
installation and involving nuclear material in the course of carriage, the applicable Convention shall bethat to which the State is a Party within whose territory the nuclear installation is situated whose
operator is liable pursuant to either Article II.1(b) and (c) of the Vienna Convention or Article 4(a) and(b) of the Paris Convention.”
349 The Joint Declaration is further analysed in Session 7 – Amounts available of this report. See infra note 420.

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4)

Enforcement of judgements within Europe

Another important forum shopping incentive for victims of a nuclear incident may be the EU
legislation on the enforcement of judgements. Certain EU member countries are not parties to any
nuclear liability conventions, but at the same time, all EU member countries are bound by theBrussels I bis Regulation.350 Article 7(2) of the Brussels I bis Regulation gives plaintiffs, “in mattersrelating to tort, delict or quasi-delict”, the option to sue the defendant “in the courts for the place
where the harmful event occurred or may occur” (i.e. both “the place where the damage occurred
and the place of the event giving rise to it”). 351 Some European states which are not EU member
countries (Denmark, Iceland, Norway, and Switzerland) and the European Community are also
parties to the Lugano Convention of 21 December 2007 on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters. 352 Application of these instruments, for example,
may result in the enforcement of an Irish or Austrian court judgement for nuclear damage (ruled
under the Irish or Austrian law, which do not provide for channelling of liability exclusively to theoperator) against a nuclear operator or supplier in another EU member state.
As a conclusion, litigants engage in forum shopping when they think they can get a morefavourable outcome in another jurisdiction. Such a situation may be to the detriment of victims,
who should be adequately and promptly compensated, which, in the absence of a unified systemof channelling of nuclear liability to the operator, cannot be guaranteed. The preferable course isfor more countries to come into treaty relations and gradually increase liability limits and wider
access to supplementary compensatory funds. The IAEA Action Plan on Nuclear Safety called fora more global nuclear liability regime. The future of nuclear energy can be successful andresponsible only on the basis of a truly unified nuclear liability regime based on equal
compensatory rights, global financial solidarity and single court jurisdiction, allowing competition
within the global nuclear industry to be focused on matters other than liability and the danger offorum shopping.

Resolving disputes: Enforcement of foreign judgements
Prof. Dr Ulrich Magnus, University of Hamburg Professor Emeritus, former Judge at the Courtof Appeal of the City of Hamburg, reported on the international legal instruments governing
the recognition and enforcement of foreign judgements in the area of civil liability for nuclear
damage. A judgement is always a final point of a lengthy legal process and if it is not enforceable,
it represents a waste of time and money. Therefore, the issue of enforcement of judgements isa crucial point.

350 The predecessor of the Brussels I bis Regulation – Brussels I Regulation No. 44/2001 – was the original
reason for the delay of the entry into force of the Revised Paris Convention and the requirement that all
the contracting parties to the Paris Convention that are also the EU member states deposit theirinstruments of ratification of the Revised Paris Convention simultaneously. See Council Regulation (EC)No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil
and commercial matters, Official Journal of the European Union (OJ) L 12 (16 Jan. 2001).The Council Decision
2004/294/EC of 8 March 2004 specifically mentioned that Austria, Ireland and Luxembourg will continue
to base themselves on the Community rules contained in (then applicable) Regulation No. 44/2001 and to
apply them in the area covered by the Paris Convention and by the 2004 Protocol amending that
Convention. See Council Decision No 2004/294/EC of 8 March 2004 authorising the Member States which
are Contracting Parties to the Paris Convention of 29 July 1960 on Third Party Liability in the Field of
Nuclear Energy to ratify, in the interest of the European Community, the Protocol amending that
Convention, or to accede to it, Official Journal of the European Union (OJ) L 097 (1 Apr. 2004).
351 According to the Judgment of the CJEU of 30 November 1976 Handelskwekerij G. J. Bier BV v Mines depotasse d’Alsace SA, “where the place of the happening of the event which may give rise to liability intort, delict or quasi-delict and the place where that event results in damage are not identical, theexpression “place where the harmful event occurred” […] must be understood as being intended tocover both the place where the damage occurred and the place of the event giving rise to it.” Judgmentof the Court of 30 Nov. 1976, Handelskwekerij G. J. Bier B.V. v Mines de Potasse d'Alsace S.A. (preliminary
ruling requested by the Gerechtshof of The Hague), C-21/76, ECLI:EU:C:1976:166.
352 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial
matters, OJ L 339/3 (21 Dec. 2007) (Lugano Convention).

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The recognition and enforcement of foreign judgements is not automatic and usually requires
a specific legal basis and justification, thus allowing a particular country to accept the rulings ofcourts of other countries and treat them like decisions of its own courts. The main basis for such
recognition and enforcement is usually an international treaty or a supranational instrument(e.g. the Brussels I bis Regulation), which provides for a mutual acceptance of foreign court
decisions among the countries adhering to the respective instruments. In the absence of a specificbilateral or multilateral treaty or a supranational instrument, the states decide themselves on theconditions under which they recognise and enforce foreign judgements.
1)

Recognition and enforcement of foreign judgements under the nuclear liability conventions

All nuclear liability conventions contain provisions that govern the enforcement of foreign
judgements. In principle, these provisions allow for the enforcement – and incidentally for therecognition – of judgements among the contracting parties to the relevant convention, althoughwith certain differences among the conventions. With regard to the Paris Convention and theVienna Convention, the differences between the two regimes were intended to be “bridged” by
the Joint Protocol. Concerning the enforcement of foreign judgements, the Joint Protocol extends
the enforcement possibility to the contracting parties of the relevant other convention.
Taking into account that nuclear liability conventions do not cover all the states with nuclear
installations, and since nuclear damage may be suffered and adjudicated in countries without any
nuclear installations, other international legal instruments relating to the recognition andenforcement of foreign judgements should be taken into account in this analysis, such as theBrussels I bis Regulation and the 2007 Lugano Convention. The Brussels/Lugano regime provides
that judgements rendered in member states shall be recognised and enforced in all other member
states. However, the recognition and enforcement can be refused on certain grounds. Judgements
rendered in third states outside the Paris/Vienna and the Brussels/Lugano regimes may fall either
under other bilateral or multilateral treaties (if any), or under the national legislation of the state
where recognition and enforcement is sought.

Paris Convention
The Paris Convention provides in its Article 13(d) that “Judgments entered by the competentcourt under this Article after trial, or by default, shall, when they have become enforceable
under the law applied by that court, become enforceable in the territory of any of the other
Contracting Parties as soon as the formalities required by the Contracting Party concerned havebeen complied with. The merits of the case shall not be the subject of further proceedings. The
foregoing provisions shall not apply to interim judgments.” 353
According to Article 13(d) of the Paris Convention, recognisable and enforceable judgements
must meet the following requirements:•

Enforceable decision: A first requirement is that the foreign decisions must be“enforceable under the law applied by that court” (i.e. the court that rendered thejudgement). Since this court usually applies its national procedural law, the judgement
must be enforceable according to this law. Therefore, the requirements for
enforceability to be met depend on the domestic law of the judgement state. Default
judgements are treated in the same manner as judgements rendered after contradictory
proceedings. However, “interim judgements” are excluded from enforceability under
the Paris Convention, as well as settlements; 354

353 Secretariat note: The same principles are provided in Article 13(i) of the Revised Paris Convention.
354 Paragraph 58 of the Exposé des Motifs of the Paris Convention and paragraph 99 of the Exposé des Motifs of
the Revised Paris Convention mention that only “final judgments” may be enforceable. Therefore, eventhough some national laws may consider provisional decisions as enforceable, they are not enforceable
under the Paris Convention. NEA (1982), Exposé des Motifs of the Paris Convention, supra note 109 and NEA(2020), Exposé des Motifs of the Revised Paris Convention, supra note 187.

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Jurisdiction of the judgement state: As a further precondition for the enforcement,
Article 13(d) of the Paris Convention requires that the judgement court was competent“under this Article”. Article 13(a) of the Paris Convention establishes the exclusive
jurisdiction of the court(s) of the contracting state in whose territory the nuclear incident
occurred. 355 If either the nuclear incident occurred outside the territory of the contracting
parties or the place of the incident could not be determined with certainty, jurisdiction
over such actions shall lie with the courts of the contracting party in whose territory the
nuclear installation of the operator liable is situated. 356 If the incident occurred in two or
more of the Paris Convention states, the European Nuclear Energy Tribunal could be asked
to determine the competent court. 357 However, the geographical scope of the Paris
Convention shall also be taken into account, as judgements which have been rendered bycourts that are not competent according to these rules remain unenforceable in othercontracting states;•

Formalities of the recognition/enforcement state: Judgements which are final, areenforceable in other contracting parties “as soon as the formalities required by theContracting Party concerned have been complied with.” The “Contracting Party concerned”
is the state where enforcement is sought. Therefore, the “formalities” of this state must
be complied with. It is questionable whether “formalities” include or exclude the generalgrounds of national law based on which the recognition and enforcement of a foreign
judgement can be refused. On the one hand, Article 14(b) of the Paris Convention provides
that where the Convention refers to “national law” or “national legislation”, “that law orlegislation shall apply to all matters both substantive and procedural not specifically
governed by this Convention.” 358 On the other hand, grounds for the refusal ofenforcement (e.g. lack of being heard) can hardly be qualified as “formalities”. They aresubstantive reasons to refuse the recognition and enforcement of a foreign judgement.
“Formalities” should therefore include only those formal requirements which acontracting party requests as being necessary to enforce a foreign judgement (e.g. theinstitution of a special enforcement procedure). Neither the Paris Convention, nor the
Revised Paris Convention provide for specific grounds to refuse the recognition andenforcement of foreign judgements. However, a general reservation of the “ordre public”(public order) of the enforcement state is probably inherent to all national enforcement
rules;•

Effects: Contrary to many other international instruments, such as the Vienna Convention,and in contrast to most national laws, the Paris Convention does not state specific –negative – conditions which hinder the recognition and enforcement of foreign
judgements. Therefore, if a final judgement is rendered by a court competent under theParis Convention, it must be recognised and enforced in other contracting states (usually

355 The NEA Steering Committee recommended that the “Contracting Parties to the Paris Convention, whenrevising their national legislation, provide for a single court to be competent to rule on compensation
under the Paris Convention for nuclear damage arising from any one nuclear incident; the criteria for thisdetermination shall be decided by national legislation.” The Recommendation of 3 October 1990
[NE/M(90)2] is available in NEA (1990), Paris Convention: Decisions, Recommendations, Interpretations, OECD
Publishing, Paris. Secretariat note: It is worth noting that the Revised Paris Convention introduces theprinciple of a “single competent court” in Article 13(h) of the Convention. As a consequence, the 1990
Recommendation became obsolete following the entry into force of the Revised Paris Convention for all
contracting parties.
356 See Article 13(b) of the Paris Convention. Article 13(c) of the Paris Convention provides even for the rarecase where jurisdiction would lie in more than one state. Then, if the nuclear incident occurred partly
in a Paris Convention state and partly in a non-contracting state, only the courts of the former would
be competent. With regard to the Revised Paris Convention, those general rules have not changed. In
addition, the Revised Paris Convention introduces in its Article 13(b) the principle of jurisdiction of thecourts of the coastal state in case of nuclear incidents occurring in the exclusive economic zone of suchstate.
357 See Article 13 (c)(ii) of the Paris Convention and Article 13 (f)(ii) of the Revised Paris Convention.
358 Secretariat note: Article 14(b) of the Revised Paris Convention contains identical provisions.

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through an exequatur procedure). Finally, Article 13 (d) of the Paris Convention 359
explicitly prohibits a “révision au fond” (substantive review) of the judgement – the courtsof the enforcement state shall not investigate into the merits of the case.

Vienna Convention
The Vienna Convention regulates the recognition and enforcement of foreign judgements in its
Article XII, which was slightly amended by the Revised Vienna Convention. The Article XII of theConvention provides that: “1/. A final judgement entered by a court having jurisdiction under
Article XI shall be recognized within the territory of any other Contracting Party, except – (a) where
the judgment was obtained by fraud; (b) where the party against whom the judgment was
pronounced was not given a fair opportunity to present his case; or (c) where the judgment is
contrary to the public policy of the Contracting Party within the territory of which recognition issought, or is not in accord with fundamental standards of justice. 2/. A final judgment which isrecognized shall, upon being presented for enforcement in accordance with the formalities
required by the law of the Contracting Party where enforcement is sought, be enforceable as if itwere a judgment of a court of that Contracting Party. 3/. The merits of a claim on which thejudgment has been given shall not be subject to further proceedings.” 360
According to this Article XII, recognisable and enforceable judgements must meet thefollowing requirements:•

Final decision: As a first condition for enforceability, Article XII of the Vienna
Convention requires that the judgement be a final one; however, it does not define thisterm. Since Article XII does not mention “interim” or “provisional” judgements, it has
been argued that the provision may allow their recognition and enforcement. However,
Article XII of the Revised Vienna Convention removes the word “final” and provides thatthe judgement must be “no longer subject to ordinary forms of review”. As aconsequence, decisions which can be considered as “unappealable” must be recognisedand can be enforced. Therefore, decisions that still can be challenged, even if they areprovisionally enforceable, or settlements, 361 are not covered and cannot be recognised
and enforced in other contracting states. Article XII of the Vienna Convention provision
does not explicitly mention default judgements. They have to be dealt with inaccordance with the general rule provided under Article XII (i.e. if they are still subject
to an appeal, they are not recognisable and enforceable);

359 For the Revised Paris Convention, see Article 13(i).
360 Article XII of the Revised Vienna Convention states that: “1. A judgment that is no longer subject toordinary forms of review entered by a court of a Contracting Party having jurisdiction shall berecognized, except - (a) where the judgment was obtained by fraud; (b) where the party against whom
the judgment was pronounced was not given a fair opportunity to present his case; or (c) where thejudgment is contrary to the public policy of the Contracting Party within the territory of which
recognition is sought, or is not in accord with fundamental standards of justice. 2. A judgment which isrecognized under paragraph 1 of this Article shall, upon being presented for enforcement in accordancewith the formalities required by the law of the Contracting Party where enforcement is sought, be
enforceable as if it were a judgment of a court of that Contracting Party. The merits of a claim on which
the judgment has been given shall not be subject to further proceedings.”
361 Secretariat note: In this regard, the CSC provides in its Article XIII.7 that “Settlements effected in respect ofthe payment of compensation out of the public funds referred to in Article III.1(b) in accordance with theconditions established by national legislation shall be recognized by the other Contracting Parties”. As
further explained in Section 3.9.4 of the Explanatory Texts of the 1997 Vienna Convention on Civil Liability for
Nuclear Damage and the 1997 Convention on Supplementary Compensation for Nuclear Damage, “This provisionrefers to settlements effected in respect of the payment of compensation out of the funds to be madeavailable by the Contracting Parties in cases where the nuclear damage exceeds the national
compensation amount; such settlements have to be recognized, just as judgements entered by thecompetent court (or courts) in respect of such compensation have to be recognized and enforced under
Article XIII.5 and 6”. Other provisions of the CSC on the recognition and enforcement of judgments
provided in Article XIII are based on corresponding provisions in Article XII of the Vienna Convention.
IAEA (2020), Explanatory Texts of the 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997
Convention on Supplementary Compensation for Nuclear Damage, supra note 110.

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Jurisdiction of the judgement state: In line with Article 13(d) of the Paris Convention,
Article XII of the Vienna Convention requires that the judgement court must have hadjurisdiction under the Convention;•

Grounds for refusal: Unlike the Paris Convention, Article XII of the Vienna Convention
contains a list of three grounds, which exclude the recognition and enforcement of aforeign judgement in another contracting state, specifically: (i) judgement obtained byfraud (e.g. a judgement based on the wrong testimony of witnesses whom thejudgement creditor had bribed); (ii) a situation where the adjudicated party had no fair
opportunity to be heard (e.g. no reasonable steps were taken to inform this party of theinstitution of proceedings; this party was not given a realistic opportunity to present
his/her own case in the proceedings); and (iii) a violation of the public order of theenforcement state or a violation of fundamental standards of justice;•Formalities of the enforcement state: In the same manner as provided in the Paris
Convention, the “formalities” of the enforcement state must be fulfilled in order toachieve enforcement of a foreign judgement in accordance with Article XII of the Vienna
Convention. “Formalities” are the mere formal requirements under which a foreign
judgement can be enforced in the enforcement state;•

Effects: A final judgement of a competent court has to be recognised and enforced in theother contracting states if no ground for refusal is identified. The recognition means thatthe foreign judgement must be given the same effects as if the judgement had been
rendered in the enforcement state. In the same manner as provided in the Paris
Convention, the merits of the claim on which the judgement has been given shall not be
subject to further proceedings in the enforcement state (i.e. révision au fond is forbidden).

Joint Protocol
As mentioned in the Explanatory Text of the Joint Protocol, Article IV of the Joint Protocol provides
that either the Vienna Convention or the Paris Convention “shall be applied” with respect to theParties to the Protocol which are Parties to the other convention “in the same manner” as
between Parties to that Convention. 362 Consequently, the Joint Protocol has the theoretical effectof expanding the circle of states where foreign judgements on civil liability for nuclear damage
can be recognised and enforced, as if they were judgements of the enforcement state. However,the Joint Protocol does not stipulate any conditions for the recognition and enforcement offoreign judgements, but leaves this issue up to the Paris Convention or the Vienna Convention,
whichever applies. Due to the fact that such conditions differ between the Paris and the Vienna
Conventions, the question may arise as to which conditions should apply in a situation wherea judgement is rendered in a state party to one convention, but shall be enforced in the stateparty to the other convention.
On the one hand, it could be inferred that the conditions for the enforceability should follow
the convention in force in the state whose courts rendered the judgement, because both theParis Conventions and the Vienna Convention provide that only the mere formalities of theenforcement state must be complied with. On the other hand, the enforceability must be
assessed by the court of the enforcement state. Therefore, it could also be argued that theconditions of the convention in force in the state where enforcement is sought should apply.
However, it seems that the application of the conditions in the judgement state would help tosecure that the recognition and enforcement of a judgement is subject to the same conditions
in all states that are bound by the relevant convention and the Joint Protocol. Otherwise, ajudgement rendered, for instance, in a Paris Convention state would be enforced in the other
Paris Convention states in accordance with Article 13(d) of the Paris Convention, but in the
Vienna Convention states, it would be done in accordance with the Vienna Convention
conditions. This solution would jeopardise the purpose of the Joint Protocol, and namely themutual extension of the “benefit of the special regime of civil liability for nuclear damage set
forth under each Convention”. 363

362 For more information, see Section 3.2 of IAEA (2013), Explanatory Text of the Joint Protocol, supra note 347.
363 Ibid., Section 2.2.

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SESSION 6. RESOLVING DISPUTESBrussels I bis Regulation
The Brussels I bis Regulation applies to cases within the EU that are not covered by either the Paris
Convention or by the Vienna Conventions (Article 71 Brussels I bis Regulation gives priority tothese conventions). 364 The Brussels I bis Regulation aims at facilitating the free circulation ofjudgements within the EU. The formal requirements for the recognition and enforcement ofjudgements have therefore been reduced, but the following conditions shall however be met:•

Judgement: Unlike the Paris and the Vienna Conventions, under the Brussels I bis
Regulation judgements, court settlements and authentic instruments can be
enforced. 365 The Regulation provides for a wide definition of “judgement” which can berecognised and enforced (it includes “a decree, order, decision or writ of execution, as
well as a decision on the determination of costs or expenses by an officer of thecourt”). 366 Even provisional (including protective) measures ordered by the competentcourt can be enforced. 367 All such judgements are to be recognised “without any special
procedure being required” 368 and are enforceable in the other member states. 369
Recognition and enforcement can only be refused if the interested party so requests,
and specific grounds for refusal are identified; 370•

Grounds for refusal: The grounds for refusal are listed in Article 45 (1) of the Regulation.
They comprise the following: (1) the manifest violation of the public order of theenforcement state; (2) in case of default judgements that the defendant was not served ina way that he or she could arrange for a defense (unless the defendant failed to institutea possible remedy); (3) if the judgement is irreconcilable with a judgement between thesame parties in the enforcement state; (4) if the judgement is irreconcilable with an earlier
judgement between the same parties and on the same cause of action, provided that thisjudgement could be recognised in the enforcement state; (5) where the judgement
disregarded either the exclusive jurisdiction 371 or the protective jurisdiction that theRegulation grants to consumers, employees or in connection with insurance contracts;•

Formalities for recognition and enforcement: The recognition of a judgement rendered in
one of the EU member states in other member states does not require any formal
procedure. It is sufficient that the interested party provide a copy of the original
judgement and a special certificate issued by the judgement court, which gives theparticulars of the judgement and certifies its enforceability. The enforcement does not
require a separate procedure that would declare the decision enforceable (i.e. exequatur).
The foreign judgement has to be enforced in the same way as a decision rendered in theenforcement state;

364 Article 71 of the Brussels I bis Regulation provides that: “1. This Regulation shall not affect any conventions
to which the Member States are parties and which, in relation to particular matters, govern jurisdiction or
the recognition or enforcement of judgments. 2. With a view to its uniform interpretation, paragraph 1
shall be applied in the following manner: (a) this Regulation shall not prevent a court of a Member State
which is party to a convention on a particular matter from assuming jurisdiction in accordance with thatconvention, even where the defendant is domiciled in another Member State which is not party to thatconvention. The court hearing the action shall, in any event, apply Article 28 of this Regulation;(b) judgments given in a Member State by a court in the exercise of jurisdiction provided for in aconvention on a particular matter shall be recognised and enforced in the other Member States inaccordance with this Regulation. Where a convention on a particular matter to which both the Member
State of origin and the Member State addressed are parties lays down conditions for the recognition or
enforcement of judgments, those conditions shall apply. In any event, the provisions of this Regulation onrecognition and enforcement of judgments may be applied.”
365 See Articles 39, 58 and 59 of the Brussels I bis Regulation.
366 See Article 2 (a) subpara. (1) of the Brussels I bis Regulation.
367 See Article 2 (a) subpara. (2) of the Brussels I bis Regulation.
368 See Article 36 (1) of the Brussels I bis Regulation.
369 See Article 39 of the Brussels I bis Regulation.
370 See Article 45 and 46 of the Brussels I bis Regulation.
371 See Article 24 of the Brussels I bis Regulation.

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Effects: Like the Paris and the Vienna Conventions, the Brussels I bis Regulation forbids
révision au fond. 372 Even the jurisdiction of the judgement court (including the facts on
which jurisdiction is based) must not be reviewed, except insofar as the recognising or
enforcing court has to examine whether the exclusive and protective jurisdiction rules of
the Regulation have been observed. 373 When recognised, a judgement of an EU member
state would have the same effect in the judgement state and in the other EU member
states, as if it were rendered there. The effect of the original judgement is therefore
extended to the country of recognition or enforcement.

2007 Lugano Convention
The Lugano Convention is very similar to the Brussels I bis Regulation in regard to most of its
principles, in particular those concerning the grounds for refusal of recognition and enforcementof judgements. However, the Lugano Convention still provides for a specific procedure for thedeclaration of enforceability in the enforcement state (i.e. exequatur). 374

Example of a domestic law on recognition and enforcement of foreign judgements: Germanlaw
In principle, under the German law, foreign judgements shall be recognised and enforced.
However, recognition and consequently enforcement is excluded if certain grounds for theirrefusal exist. 375•

Final judgements: Decisions of foreign (state) courts can be recognised and enforced. Inorder to be enforceable, the decision must be final and “unappealable” in the judgement
state. Provisional decisions are unenforceable;•

Grounds for refusal of recognition and enforcement: The grounds under the German law
are similar to the ones provided in the Brussels I bis Regulation, but not identical: (i) the
foreign court that rendered the judgement had no jurisdiction (viewed from theperspective of the German law on jurisdiction); (ii) if the defendant who did not submit to
the proceedings was not given orderly and timely notice of the proceedings; (iii) if thejudgement is irreconcilable with a German judgement or if the proceedings on which suchjudgement is based are incompatible with proceedings that have become pending earlier
in Germany, or if such judgement is incompatible with an earlier foreign judgement whichis to be recognised in Germany; (iv) if the recognition of the judgement would manifestly
violate essential principles of German law, in particular fundamental rights; (v) if there is
no reciprocity of recognition and enforcement with the judgement state. Compared to thegrounds for refusal in the Paris Convention and the Vienna Conventions, as well as in theBrussels I bis Regulation, the German domestic law narrows the possibility of recognitionand enforcement in particular by the requirements of reciprocity. The requirement of fullcompliance with the own (German) jurisdiction provisions tends also to limit therecognition and enforcement of foreign judgements;•

Formalities: Unlike the recognition of foreign judgements, their enforcement requires a
specific procedure which declares the judgement enforceable (i.e. exequatur). This
procedure is governed by German law;•

Effects: The recognition and enforcement of a foreign judgement extends the effects
this judgement has under the law of the country where it was rendered, to the countryof recognition and enforcement. German law does not allow révision au fond.

As a conclusion, there is a variety of sources of law in the field of recognition andenforcement of judgements in the area of liability and compensation for nuclear damage. The

372 See Article 52 of the Brussels I bis Regulation.
373 See Article 45 (2) and (3) of the Brussels I bis Regulation.
374 See Article 38 of the Lugano Convention, supra note 352.
375 The grounds for refusal are listed in Section 328 ZPO (BGBl. I No. 72/2005) (German Civil Procedure Code).

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conditions for the recognition and enforcement of judgements vary depending on the applicableinternational legal instrument and the relevant national legislation, even though there is a large
consensus regarding certain conditions (e.g. the judgement can only be recognised and enforced
if it does not manifestly violate public order of the enforcement state; révision au fond of thejudgement in the enforcement state is prohibited). It is in the interest of victims of a nuclear
incident to get a judgement rendered in one state and enforceable in other states under thesame conditions. This is particularly true with regard to the recognition and enforcement ofjudgements in the state where the liable person has its assets. Therefore, further harmonisation
concerning the recognition and enforcement of judgements in the area of liability for nuclear
damage is desirable.

Discussion session
A question arose as to whether the differences in the liability regimes in force in the judgement
state and the enforcement state (e.g. differences in establishing a causal link, or liability of a
nuclear operator for a nuclear incident caused by a grave natural disaster of an exceptional
character) could be used as a ground for refusal of recognition and enforcement of a foreign
judgement in the enforcement state on the basis of violation of the public order. It appearedthat that the public order argument may be raised in these circumstances, but most probably
only if the enforcement state denies any liability of an operator in such cases and leaves victims
without any compensation. If there are grounds for liability of an operator (and even though
their respective contents differ in the judgement state and the enforcement state), the argumentof public order would probably not be valid.
With regard to the absence of the recognition and enforcement provisions in the Joint Protocol,
it was further discussed that one of the possible explanations of such omission is that the Joint
Protocol directly refers to the recognition and enforcement provisions of the relevant applicableconventions (i.e. either the Paris Convention or the Vienna Convention) to deal with this issue. In
this regard, the main concern is to identify under which conditions the rendered judgement would
be recognised and enforced (i.e. under the conditions of the judgement state or under theconditions of the enforcement state), as there is no definitive answer to this question.
It was also discussed that in the absence of a universal legal instrument providing for,among other principles, a channelling principle, jurisdiction of one single court and common
rules on the recognition and enforcement of judgements, there may be a legal uncertainty as to
how the consequences of nuclear incident, and more specifically claims for nuclear damage,would be treated. 376 In this regard, a question arose as to whether a system with only regional
nuclear liability regimes in place would be satisfactory to suppliers who nowadays supply
worldwide, and to people who now travel around the world more and more frequently (andtherefore could become potential victims of a nuclear incident).
Some emphasised that the real issue is not to attract as many states with nuclear installations
as possible within the same international legal instrument, but rather to persuade the non-nuclear
states to join one of the nuclear liability conventions in order to avoid a situation where thesestates establish their own specific nuclear liability regimes that would allow for forum shopping.
In response to this situation, the installation state could raise the argument of the public order torefuse recognition and enforcement of foreign judgements rendered due to such forum shopping,which eventually could be detrimental to victims. From the standpoint of non-convention states,
it appeared that the following reasons might attract such countries to join a nuclear liability
convention: a common system governing nuclear liability in the neighbouring countries (e.g. in
Europe) and an amount of compensation for nuclear damage which could be considered as
appropriate based on the outcome of the total amounts of compensation paid for nuclear damage
caused by past nuclear incidents (e.g. the Fukushima accident).
It was also pointed out that, generally, a global nuclear liability regime is often compared toseveral regional nuclear liability regimes, with a comparison between instruments that establish

376 As already mentioned, the IAEA Action Plan on Nuclear Safety expressly suggested establishment of a
global nuclear liability regime as an action to improve the effectiveness of the international legal
framework. See supra note 22.

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those regimes and not between their respective contents. In this regard, the following questions
may arise: Do we need similar principles when applying a nuclear liability regime? Do we need toencourage states to increase the amounts of funds available to compensate victims? If a global
adherence to a single and universal nuclear liability instrument is not possible due to the varietyof legal approaches among different countries, harmonisation among the existing regimes should
be encouraged.
Finally, based on lessons learnt from the Fukushima accident, it appeared that in addition to
the principle of a single competent court, a single policy should govern the consequences of aparticular nuclear incident with a focus on compensation to victims. In this respect, resolution of
nuclear liability claims through an ADR mechanism offers certain advantages. Such mechanism
represents a tool that is able to provide compensation to victims as soon as possible, so they canre-start their lives with a minimum waste of time and money.

Overview of responses to the questionnaire
ADR mechanism(s) under national law
Almost two thirds of the responding countries reported that their national laws do not containmechanisms providing for an out-of-court settlement of nuclear liability-related disputes. A few
countries, however, provided some clarifications to their responses (see Figures 37.a and 37.b).
Examples:•Belgium: Even though the national law does not include provisions relating to ADR
mechanisms, Article 30 of the Law of 22 July 1985 on civil liability in the field of nuclear
energy empowers the King to organise a compulsory conciliation procedure, either
administrative or judiciary; 377•

Ireland: ADR mechanisms are not specifically provided under national law, but parties
are free to agree upon an ADR mechanism to resolve their dispute in advance of court
proceedings.

On the other hand, few reporting countries indicated that ADR mechanisms are provided
under their national legislation. Examples:•

Australia: According to Section 56(1) of the Civil Procedure Act 2005 (NSW), theoverriding principle for civil law matters is to “facilitate the just, quick and cheap
resolutions of real issues in the proceedings.” The Act also gives the courts power toorder mediation under Section 26, and arbitration, in accordance Section 38; 378•

Finland: The Act on mediation in civil matters and confirmation of settlements ingeneral courts (394/2011) may be applicable in cases related to nuclear damage; 379•

Japan: Relevant provisions on ADR mechanisms exist under the Act on Compensation
for Nuclear Damage; 380•

Romania: Procedures for mediation are contained in the Law 192/2006. According to
Article 1 of this Law, mediation is a way of resolving conflicts amicably, with the help of athird party mediator, under conditions of neutrality, impartiality, confidentiality, and withthe free consent of the parties. According to Article 43 of the Law, in civil and commercial
matters, the parties may seek to settle the dispute through mediation before going to court.
If one of the parties explicitly refuses, in writing, mediation or fails to respond to the377 See Article 30 of the 1985 Law, supra note 168.
378 Civil Procedure Act 2005 No. 28, as amended (NSW) (NSW Government Gazette No. 100 of 10 August 2005).
379 The Act on mediation in civil matters and confirmation of settlements in general courts (394/2011).
380 Act on Compensation for Nuclear Damage, as amended (Act No. 147 of 17 June 1961, as amended by Act
No.19 of 17 April 2009).

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invitation to mediation or does not appear twice in a row on the date set for signing themediation contract, the mediation shall be considered unacceptable; 381•

Slovenia: Article 15(2) of the Act on Liability for Nuclear Damage provides for the
possibility for an out-of-court settlement through arbitration or mediation. Morespecifically, according to this Article, “[i]n informing the injured parties of the procedureand manner of the enforcement of claims for compensation for nuclear damage, theinsurer shall, at the same time, be obliged to provide them with the information on thepossibility of the out-of-court settlement of disputes, which must include thejurisdiction of the Court”. 382

Figure 37.a. Does your national law provide for an ADR mechanism in casethe operator and victims disagree on the extent of the compensation to be paid
for nuclear damage, as a first step before going to court?

7%
28%

YES
NO
N/A

65%

Source: NEA.

Figure 37.b. Does your national law provide for an ADR mechanism in casethe operator and victims disagree on the extent of the compensation to be paid
for nuclear damage, as a first step before going to court?

19

8
2
YES

NO

N/A

Source: NEA.

381 Law 192/2006 on mediation and the profession of mediators, as amended (Official Monitor [Monitorul
Oficial] no. 441 of 22 May 2006).
382 See Article 15 of the 2010 Act on Liability for Nuclear Damage, supra note 126.

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Competent court under the jurisdiction of the installation state
In answering the question related to the court of the installation state competent under thenational law to rule on compensation for nuclear damage, several responding countries
designated one single court having exclusive jurisdiction to hear claims related to nuclear
damage arising from a nuclear incident.
a) In some cases, the court exclusively competent to rule on compensation for nuclear
damage is expressly designated by the national law, irrespective of the place where thenuclear incident occurred or where the liable operator is situated. Examples:–

Belgium: According to Article 26 of the Law of 22 July 1985 on civil liability in the fieldof nuclear energy, the competent court is the Tribunal de première instance de Bruxelles,
the Brussels’ tribunal competent for civil matters; 383–

Hungary: The Municipal Court of Budapest has exclusive jurisdiction to judge claims
for compensation of nuclear damage submitted on the basis of the 1996 Act on
Atomic Energy; 384–

Slovenia: According to Article 19 of the of the Act on Liability for Nuclear Damage,“[t]he District Court in Ljubljana shall have exclusive subject-matter and territorial
jurisdiction over all compensation claims in relation to a nuclear incident”; 385–

Sweden: According to Article 58 of the Act on Liability and Compensation for Nuclear
Incidents, exclusive jurisdiction for actions related to this Act would lie with the Nacka
District Court (Land and Environment Courts). 386b) In some other cases, the territorial nexus determines the national court having
exclusive jurisdiction on matters related to nuclear damage. Examples:–

Canada: Section 34(1) of the NLCA stipulates that “[a]n action involving damage that iscaused by a nuclear incident is to be brought in the court in Canada that has
jurisdiction in the place where the incident occurs”. Furthermore, subparagraph 2 ofthe same Section states that “[t]he Federal Court has jurisdiction if the nuclear incident
occurs (a) in more than one province; (b) partly within a province and partly within
Canada’s exclusive economic zone; or (c) within Canada’s exclusive economic zone”; 387–

Germany: After the entry into force of the Revised Paris Convention, §40a of the AtG
became applicable. According to this new paragraph, “For actions for damages on thebasis of the Paris Convention or on the basis of the Paris Convention in conjunction
with the Joint Protocol, for which the courts of the Federal Republic of Germany havejurisdiction under the provisions of the Paris Convention, the district court in whose
district the nuclear incident occurred or, in the cases referred to in Article 13(c) of theParis Convention, the seat of the liable holder of the nuclear installation is situatedshall have exclusive jurisdiction. If the nuclear incident occurs within the exclusive
economic zone of the Federal Republic of Germany, the Hamburg District Court shallhave exclusive jurisdiction”; 388–

United States: According to Section 170.n(2) of the Atomic Energy Act, the US district
court where the nuclear incident occurred would be the competent court; however,if the incident occurred outside the United States, the US District Court for theDistrict of Columbia would have jurisdiction. 389

383 See 1985 Law, supra note 168.
384 See Article 65 and Article 2(23) of the 1996 Act on Atomic Energy, supra note 158.
385 See 2010 Act on Liability for Nuclear Damage, supra note 126.
386 See Article 58 of the Act on Liability and Compensation for Nuclear Incidents, 2010 (SFS 2010:950).
387 See Section 34 of the NLCA, supra note 124.
388 Atomgesetz, supra note 173.
389 See Section 170.n(2) of the United States Atomic Energy Act of 1954, supra note 169.

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Competent court under the jurisdiction of the affected state if no treaty relations exist with
the Installation StateIn answering the question on the courts having jurisdiction under the national law of theaffected state to rule on compensation for nuclear damage in the absence of treaty relations
with the installation state, roughly half of the responding countries reported that their national
courts would have jurisdiction in such a case (see Figure 38). Examples:•

Australia: If the damage resulting from the tort was wholly or partly suffered inAustralia, an Australian court will have jurisdiction to hear the claim;•

Canada: Treaty relations with another state are not required in order for Canadian courts
to have jurisdiction under Canadian law to rule on compensation for nuclear damage.
However, without treaty relations, the orders of Canadian courts would not be enforceable
in the installation state;•

United States: US courts may assert jurisdiction over nuclear damage claims both when
the US are or are not an affected state. It is also possible for a claim to be brought in the
US for an incident occurring outside the United States, depending upon whether facts
or circumstances exist to connect the nuclear damage to some person or entity within
the United States according to the jurisdictional requirements of the US courts.

Responding countries that are also EU member states reported that relevant EU legislation
should be taken into account in order to determine the competent court(s). Examples:•

Austria: According to Section 22 of the AtomHG, the plaintiff can choose between the courtin the jurisdiction of which the damage was caused or the court in the jurisdiction ofwhich the damage was suffered. 390 If the liable party is located within the EU, thecompetent court will be designated in accordance with the Brussels I bis Regulation.
On the contrary, in the case where the liable person is located outside the EU, national
jurisdiction rules as laid down in the Austrian national legislation will determine thecompetent court;•

Netherlands: If the installation state is an EU member state, the Brussels I bis Regulation
would apply. If the installation state is a non-EU member state, relevant rules in the
Dutch Code of Civil Procedure would apply.

Figure 38. If you are an affected state and do not have treaty relations
with the installation state, will your courts have jurisdiction under yournational law to rule on compensation for nuclear damage?

23%
44%

YES
NO
N/A

33%

Source: NEA.

390 See Section 22 of the AtomHG, supra note 136.

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Enforceability in the installation state of decisions by the affected state’s competent courtsin the absence of treaty relations between these states
In answering the question related to the enforceability in the installation state of decisions
rendered by the competent courts of the affected state in the absence of treaty relations
between the concerned states, approximately half of the responding countries reported thatsuch decisions would not be enforceable under their jurisdiction. Several countries provided
clarifications to their response (see Figures 39.a and 39.b). Examples:•

Canada: Treaty relations with another state would be required in order for decisions of
the affected state’s courts to be enforceable in Canada;•

Sweden: As a main rule, such decisions would not be enforceable in Sweden. However,the Brussels I bis Regulation would apply should the affected state be another EU member
state;•

United Kingdom: Section 17(5) provides a defence against any claims in the United
Kingdom to enforce a judgement from a foreign court if that country is not a relevant
territory and is not subject to a relevant international agreement, unless there is aninternational agreement in place that allows for the judgement to be enforced. 391

Several responding countries confirmed that even in the absence of treaty relations with anaffected state, decisions rendered by the courts of such state would be enforceable under theirjurisdiction. Examples:•

Belgium: For such decisions to become enforceable in Belgium, the procedure ofrecognition of foreign judicial decisions provided for by Article 23 et seq. of the Private
International Law Code should be complied with. Furthermore, the Tribunal de première
instance de Bruxelles (Brussels’ tribunal for civil matters) is competent to hear andadjudicate on recognition of foreign judicial decisions; 392•

Japan: If the decision of a foreign court satisfies the conditions for domestic enforcement
as provided in the Code of Civil Procedure, such decision may be enforceable; 393•

Romania: National legislation related to nuclear liability does not include any provisions
in this regard. However, the procedure for the recognition and enforcement of judgements
rendered in the EU member states is governed by Brussels I bis Regulation. In regard to
non-EU member states, Romania’s Code of Civil Procedure would apply. Article 1096 of
the Code provides that the foreign decisions may be recognised in Romania to benefit
from the authority of res judicata, if the following conditions are met cumulatively: (a) the
judgement is final according to the law of the state where it was rendered; (b) the courtthat ruled had, under the law of the state in which territory it is located, jurisdiction tohear the proceedings, provided that the presence of the defendant or of his or her property
not directly related to the dispute in the territory of such court is not the only nexus;(c) there is reciprocity regarding the effects of foreign judgements between Romania andthe state of the court that rendered the judgement. 394

391 See Section 17(5) of the NIA 65, supra note 149.
392 See Article 22 et seq. of the Law of 16 July 2004 Holding the Code of Private International Law (Belgian
Official Journal of 27 July 2004, n° 2004009511).
393 See Article 118 of the Japanese Code of Civil Procedure (Kampo Gogai, 26 June 1996, Vol. 1/3, 148, pp. 22-44).
394 See Article 1096 of the Romanian Code of Civil Procedure (Official Monitor no. 247 of 10 Apr. 2015).

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Figure 39.a. If you are an installation state and do not have treaty relations with
an affected state, will decisions by the affected state’s competent courts (according to theirrespective national law) be enforceable in your country under your national law?
13

8

8

YES

NO

N/A

Source: NEA.

Figure 39.b. If you are an installation state and do not have treaty relations with
an affected state, will decisions by the affected state’s competent courts (according to theirrespective national law) be enforceable in your country under your national law?

28%

27%

YES
NO
N/A

45%

Source: NEA.

Session 6 – Conclusionsi)

Disputes related to the compensation of nuclear damage under the international
conventions (whether between states, or between the operator and the victims) could be
resolved by ADRs, which are confidential, less formal, less time-consuming, lessexpensive, more flexible and more adaptable to the case and expectations of the parties.
However, only arbitration awards may be easily enforceable in another country if the1958 New York Convention applies;ii) International nuclear liability conventions determine the competent court, but in theabsence of treaty relations, victims may engage in forum shopping, which may also be
induced if nuclear liability limits are too low and the country does not have access to
supplementary compensatory funds;iii) Recognition and enforcement of judgements on nuclear liability and compensation for
nuclear damage are governed by a variety of sources which may cause confusion on therelevant applicable source, especially because they provide different conditions for therecognition and enforcement of judgements and there is no unanimity on the grounds
for their refusal. It would be in the interest of the victims to further harmonise
enforcement and recognition rules.

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Session 7
Amounts available

Mr Roland Dussart-Desart, Chair of the NLC and Head of Legal Division at the Belgium FPS
Economy, SMEs, Self-employed and Energy, and Chair of Session 7, mentioned that theavailability of funds dedicated to the compensation of victims in an efficient, quick and, if
possible, non-discriminatory manner is key to the success of the whole process of
indemnification for nuclear damage. There are a variety of compensation amounts that may beavailable to victims: (i) “basic” liability amounts provided according to the nuclear liability
conventions that are implemented in different ways by national legislation; (ii) reduced
amounts for compensation in case of transport of nuclear substances or for low-risk
installations; (iii) additional tiers of compensation amounts (sometimes from different origins
and with different destinations); and (iv) “phasing-in” amounts and recommended amounts, etc.
There are additional considerations to take into account while analysing the amounts available:
capacity of the insurance market with different ranges of amounts available depending on eachhead of damage to be covered; capacity of mutuals; amounts available in the operators’ poolingsystem(s); state intervention (i.e. state guarantee, state insurance, state reinsurance). Theseamounts can be fixed, but also variable. Sometimes there is only a minimum or a maximum
amount which is fixed. Some amounts are dedicated to victims located in specific areas, someamounts can interact with others according to the reciprocity principle and other amounts are
subject to certain priority rules. Finally, there are unlimited amounts according to certain
national legislation. Session 7 focuses on the variety of amounts available and the rationale
behind them, as well as the modus operandi of these amounts.

Amounts available:
conventions regimesThe

difference

betweeninternational

nuclearliability

Ms Colleen Demerchant, General Manager, Nuclear Insurance Association of Canada, reported
on behalf of Mr Jacques Hénault, Nuclear Liability Advisor, Uranium and Radioactive Waste
Division, Natural Resources Canada, on the differences in the amounts available among thenuclear liability conventions, and provided practical suggestions on how the limits of liability
and respective amounts could be calculated by explaining the Canadian approach to setting thenuclear liability limits and dealing with situations where nuclear damage claims exceed theavailable amounts.

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The following compensation amounts may be available under the nuclear liability
conventions: 395

Paris Convention•

maximum liability limit (basic liability or “reference amount”): SDR 15 million;•

1990 NEA recommended limit: 396 SDR 150 million;•

minimum liability limit: SDR 5 million;•

minimum reduced liability amounts: 397 (i) transport – SDR 5 million; (ii) low-risk
installations – SDR 5 million.

Revised Paris Convention•

maximum liability limit: none;•

minimum liability limit (“basic” liability or “reference amount”): EUR 700 million;•

minimum reduced liability limits: 398 (i) transport of nuclear substances – EUR 80 million;(ii) low-risk installations – EUR 70 million.

Vienna Convention•

minimum liability limit: USD 5 million; 399•

maximum liability limit: none.

395 Secretariat note: For information on the conventions ratified by the concerned states and the currently
applicable nuclear liability amounts, see the Nuclear Operators’ Third Party Liability Amounts and Financial
Security Limits table available at: www.oecd-nea.org/liability-amounts (Accessed 31 Aug. 2023).
396 The NEA Steering Committee recommended that the contracting parties to the Paris Convention adopt as
an objective the setting, to the extent possible, of the maximum liability of the nuclear operator at not lessthan SDR 150 million. The contracting parties were also invited to examine the possibility of providing
simplified methods for adjusting the liability of the nuclear operator under their national legislation, so as
to take into account the evolution in the capacity available on the insurance market. The NEA Steering
Committee Recommendation of 20 April 1990 [NE/M (90)1] is available in NEA (1990), Paris Convention:
Decisions, Recommendations, Interpretations, OECD Publishing, Paris,. Secretariat note: It is worth noting that
this Recommendation became obsolete following the entry into force of the Revised Paris Convention for
all contracting parties.
397 The OECD Council recommended that any contracting party to the Paris Convention which, having had
regard to the nature of the nuclear installation or nuclear substances in question and to the likely
consequences of a nuclear incident involving them, establishes, by virtue of Article 7(b)(ii) of the said
Convention, the liability of certain nuclear operators at an amount lower than that established for nuclear
operators generally, should take steps to make available public funds to satisfy any claim forcompensation in excess of the lower amount so established, up to a total of the amount established fornuclear operators generally. The Recommendation of the OECD Council of 16 November 1982 [C(82)181] isavailable in NEA (1990), Paris Convention: Decisions, Recommendations, Interpretations, OECD Publishing, Paris.
Secretariat note: It is worth noting that this Recommendation became obsolete following the entry into forceof the Revised Paris Convention for all contracting parties.
398 According to Article 10(c) of the Revised Paris Convention, the contracting party within whose territory
the nuclear installation of the liable operator is situated shall ensure the payment of claims forcompensation for nuclear damage which have been established against the operator by providing thenecessary funds to the extent that the insurance or other financial security is not available or sufficient
to satisfy such claims, up to an amount not less than EUR 700 million.
399 Article V.1 of the Vienna Convention provides that “the liability of the operator may be limited by the
Installation State to not less than US 5 million for any one nuclear incident.” Subparagraph 3 of thesame article further provides that “The United States dollar referred to in this Convention is a unit ofaccount equivalent to the value of the United States dollar in terms of gold on 29 April 1963, that is to
say US $35 per one troy ounce of fine gold.”

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Revised Vienna Convention•

minimum liability limit: SDR 300 million;•

maximum liability limit: none;•

minimum reduced liability limit: 400 SDR 5 million.

Brussels Supplementary Convention•

first tier (operator’s liability amount according to the Paris Convention): maximum
SDR 15 million (recommended: SDR 150 million);•second tier (public funds): the balance between the first tier amount and SDR 175 million;•

third tier (international funds): between SDR 175 million and SDR 300 million. 401

Total amount available: minimum SDR 300 million.

Revised Brussels Supplementary Convention•

first tier (operator’s liability amount according to the Revised Paris Convention):
minimum EUR 700 million;•

second tier (public funds): EUR 500 million;•

third tier (international funds): EUR 300 million.

Total amount available: minimum EUR 1.5 billion.

CSC•

first tier (operator/ State): minimum SDR 300 million;•

second tier (current CSC States): SDR 102.9 million;

Total amount available: minimum SDR 102.9 million. 402
It is worth noting that there is an important difference in the liability amounts among theoriginal nuclear liability conventions (i.e. the Paris Convention and the Vienna Convention) andthe revised conventions.

400 Article V.2 of the Revised Vienna Convention provides that the installation state, having regard to thenature of the nuclear installation or the nuclear substances involved and to the likely consequences of anincident originating therefrom, may establish a lower amount of liability of the operator, provided that in
no event shall any amount so established be less than SDR 5 million, and provided that the installation
state ensures that public funds shall be made available up to the amount of not less than SDR 300 million.
401 With regard to the Brussels Supplementary Convention, the OECD Council adopted a Recommendation[C(92)166/FINAL] that the contracting parties to the BSC shall not invoke Article 3(b)(i) of the Brussels
Supplementary Convention in cases where the amount of the insurance or other financial security of theoperator is higher than SDR 175 million per incident (i.e. public funds tier) of the Brussels Supplementary
Convention. As a consequence of the Recommendation, the third tier will be mobilised when the amount
made available by the operator is exhausted. The third tier is “deferred”. Secretariat note: It is worth
mentioning that the “deferment” principle provided in this Recommendation became obsolete following
the entry into force of the 2004 Protocol to amend the Brussels Supplementary Convention [see Article 9(c)of the Revised Brussels Supplementary Convention]. The revised Recommendation is available at:https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0272 (Accessed 31 Aug. 2023).
402 Secretariat note: Figures are provided as of May 2022. The CSC Online calculator to apply the formula forcontributions provided in Article IV of the CSC according to which the CSC contracting parties shall makeavailable the public funds referred to in Article III.1(b) of the CSC is available at: https://ola.iaea.org /ola/CSCND/index.html (Accessed 31 Aug. 2023).

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Regarding the Canadian nuclear legislation, the NLCA 403 , which entered into force on
1 January 2017, replaced the previous Nuclear Liability Act with stronger legislation to better
deal with liability and compensation for civil damage resulting from a nuclear incident. The
liability limit for operators of nuclear power plants was increased from CAD 75 million under
the previous legislation to CAD 1 billion by way of phasing-in progressively over 4 years – fromCAD 650 million at proclamation (2017), to CAD 750 million, CAD 850 million, and finally
CAD 1 billion in 2020. The nuclear liability limit must be reviewed regularly and can be increased
by regulation. The NLCA provides a prescription period of 30 years for bodily injury and loss oflife from the date of the accident, while maintaining a 10-year prescription period for otherheads of damage. The insurance market in Canada is insuring all new heads of damage
according to the NLCA, with the exception of “routine” emission (e.g. authorised emissions
permitted by the regulatory authorities) and the extended prescription period of 30 years, which
are subject to indemnification by the Canadian government through an indemnity agreement
concluded between the federal government and each of the operators.
The need to balance the requirements under the NLCA with the insurance of adequate
compensation, as well as the commercial interest of the operators were seen as drivers insetting the nuclear liability limits, along with striving to be in line with the international norms.
The government of Canada took into consideration that need for balance and used the following
criteria in setting up the liability limits:

Rationale for the CAD 1 billion limit:•

sufficient to deal with consequences of controlled releases of radiation;•

within the capacity of insurers to provide insurance at reasonable costs;•

in alignment with the standards set in the revised international nuclear third party
liability conventions.

The liability limit will be subject to:•review on a regular basis (at least once every five years), and•possible increase by regulation, having regard to factors such as inflation andinternational standards.

In the event where it appears that nuclear damage compensation claims would exceed theliability amounts established in the NLCA, the second tier of the CSC would be available to cover,at least partially, such claims. 404 Claims for these compensation amounts would be addressedby the insurers and the courts. However, should damage claims exceed the mentioned amounts,
the NLCA provides that the government may establish a quasi-judicial tribunal to replace thecourts in the event of a serious incident, where it is in the public interest to do so, having regard
to the extent and the estimated cost of the damage, and the advantages of having the claims
dealt with by an administrative tribunal. The NLCA elaborates the features and process of thetribunal that would replace the court: there will be minimum of five members, the majority ofwhich should be judges or lawyers; claims will be heard by panels of the tribunal consisting of
one or more members; and in order to process claims expeditiously, the tribunal may establishclasses of claims that shall be determined by a claims officer designated by the tribunal.
Immediately following the government’s declaration that claims from a nuclear incident are
to be dealt with by a tribunal, the Minister of Natural Resources must report to Parliament on
the estimated cost of the indemnification for damage arising from the nuclear incident.
If further funds are appropriated by Parliament to provide compensation for damage arisingfrom the nuclear incident, the tribunal is authorised to award those further funds for thedamage. The government could make regulations respecting the compensation that may beawarded by the tribunal, including regulations establishing priorities for classes of damage,403 NLCA, supra note 124.
404 On 4 September 2017, the CSC entered into force for Canada.

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those reducing awards on a pro rata basis for specified classes of damage and fixing a maximum
award within a specified class of damage, and regulations establishing classes of damage forwhich compensation is not to be awarded.
As a conclusion, in order to deal with the consequences of a nuclear incident, theinstallation state needs to have established well in advance of a nuclear incident an efficientsystem that would facilitate the process of compensation of nuclear liability claims to victims.

Amounts available: The reciprocity principle
Mr Patrick Reyners, Former Head of the NEA Legal Affairs, Secretary General and Scientific
Advisor of the International Nuclear Law Association, reported on the reciprocity principle andits application in the framework of the nuclear liability conventions in relation to compensation
amounts. 405
The term “reciprocity” is used in international law to denote the relation existing between
two states when one of them gives the subjects of another state certain privileges, on thecondition that its own subjects shall enjoy similar privileges. Moreover, and as a general rule ofRoman law, a country may wish to preserve a balance regarding the benefits afforded to othercountries in the name of reciprocity.
Generally speaking, the reciprocity principle may be considered as a derogation from thenormal application of the nuclear liability conventions, as it seems to contradict one of the basic
principles of these conventions, namely the principle of non-discrimination. 406 The reciprocity
principle may thus be regarded as a derogation from the normal application of the conventions
due to specific circumstances. It is worth noting that a particular kind of derogation from theprovisions of the convention was already introduced into the Paris Convention regarding theallocation of public funds. 407 However, the original conventions (i.e. the Paris Convention, the405 For information on the application of the reciprocity principle in different countries, see Principle ofReciprocity in National Legislation Relating to Compensation of Nuclear Damage table, available at: www.oecdnea.org/upload/docs/application/pdf/2022-06/reciprocity_principle_table_2021-05.pdf (Accessed 31 Aug.
2023).
406 Both the Paris Convention (Article 14) and the Vienna Convention (Article XIII) establish the principleof non-discrimination, specifying that the “[…] law and legislation [of the Contracting Party] shall beapplied without any discrimination based upon nationality, domicile, or residence”. The CSC states thatcompensation “…shall be distributed equitably, without discrimination based upon nationality,
domicile, or residence” (Article III.2).
407 Article 15 of the Paris Convention states that “a. Any Contracting Party may take such measures as it
deems necessary to provide for an increase in the amount of compensation specified in this Convention.
b. In so far as compensation for damage involves public funds and is in excess of the 5 000 000 Special
Drawing Rights referred to in Article 7, any such measure in whatever form may be applied underconditions which may derogate from the provisions of this Convention.” The Exposé des Motifs of the Paris
Convention provides in this regard in its paragraph 62 that “[…] a Contracting Party may take such measures
as it deems necessary to provide for an increase in the amount of compensation specified in theConvention [Article 15(a)] whether within the third party liability of the operator or outside such liability.
Where a Contracting Party takes measures to provide for compensation above 5 000 000 SDRs in so far as
it is to be paid out of public funds, such measures, whether within the third party liability of the operator
or outside such liability, may be applied under special conditions which derogate from the provisions of
the Convention and in particular need not be applied without discrimination to all victims [Article 15(b)].
Hence, the Convention does not regulate the methods and means of application of State intervention andthe availability of additional compensation above 5 000 000 SDRs out of public funds for foreign victims isleft to be dealt with outside the Convention.” It is worth noting that, unlike Article 15(b) of the Paris
Convention which limits the effects of the derogation to the use of public funds in excess of a certain
amount, Article 15(b) of the Revised Paris Convention allows the contracting parties to derogate from theprovisions of the Convention in so far as compensation for nuclear damage is in excess of EUR 700 million,
regardless of the nature of funds. NEA (1982), Exposé des Motifs of the Paris Convention, supra note 109. The
Exposé des Motifs of the Revised Paris Convention provides in this regard (paragraph 105) that “Article 15(b)allows for deviation from the non-discrimination rule contained in Article 14 where additional funds areused to compensate nuclear damage in excess of the EUR 700 million liability amount provided for under
Article 7. For Contracting Parties with unlimited liability regimes or States with limited liability in excess

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Brussels Supplementary Convention and the Vienna Convention) do not contain express
provisions on reciprocity, thus giving the competent national court the discretion to apply it, if
relevant.
The following factors may be pointed out to explain the establishment of the reciprocity
conditions in the revised nuclear liability conventions:•the lack of harmonisation among the international nuclear liability conventions withregard to the amounts of compensation provided therein;•

the fact that a few countries (e.g. Germany, Japan, Switzerland) provide for unlimited
liability or that some countries provide for higher nuclear liability amounts than others;•

the fact that a nuclear incident could have transboundary consequences, as
demonstrated by the Chernobyl accident;•

the fact that if a state is a party to the Joint Protocol, the scope of application of the nuclear
liability convention it is a party to (either the Paris Convention or the Vienna Convention,
whether original or revised) will be expanded and the concept of “equivalent treatment”
provided under the Joint Protocol will apply; 408•

the extended geographical scope of the Revised Paris Convention and the Revised
Vienna Convention, which would cover states that are not parties to such conventions.

All of the points above raise the issue of the adequate distribution of the amount ofcompensation available with regard to national and foreign victims in a situation wherecountries do not provide for reciprocal benefits.
It is worth remembering that the Joint Protocol links the operation of the Paris Convention
and the Vienna Convention to allow victims of a nuclear accident in a party to one of theConventions to benefit from the compensation regime established by the other Convention, andvice versa. It therefore realises a mutual extension of the protection provided to victims by the
special regime under the Paris Convention and the Vienna Convention. However, the provisionsof the Joint Protocol raised certain questions regarding their effects on the application of theBrussels Supplementary Convention, as well as the issue concerning the preservation of theinternational tier of compensation under this Convention in the case where the operator’s
financial security equals or exceeds the amount of the third tier.
To manage the consequences of the entering into force of the Joint Protocol, and in order topreserve the availability of the public funds provided pursuant to the Brussels Supplementary
Convention, the contracting parties to the Paris Convention and the Brussels Supplementary
Convention took certain measures that would apply among them:of 700 million EUR, these additional funds are, effectively, operator funds and would therefore be subject
to distribution in accordance with the non-discrimination rule of Article 14, rather than in accordancewith the provisions of Article 15(b). To remedy this situation, and to ensure that the same rules apply tothe distribution of these additional funds regardless of their source, deviation from the non-discrimination
rule is permitted regardless of whether public or private funds are used to compensate nuclear damage inexcess of the liability amount established under Article 7.” NEA(2020), Exposé des Motifs of the Revised Paris
Convention, supra note 187. However, the provisions of Article 15(b) of the Revised Paris Convention should
be read in conjunction with the 2004 Recommendation on the Application of the Reciprocity Principle to Nuclear
Damage Compensation Funds adopted in the frame of the Conference on the Revision of the Paris Convention
and of the Brussels Convention Supplementary to the Paris Convention. This Recommendation (analysedin further detail later in this Session) reflects the agreement of the contracting parties to the Revised Paris
Convention and the Revised Brussels Supplementary Convention in respect of deviations from the nondiscrimination rule. NEA (2004), “Recommendation on the Application of the Reciprocity Principle to
Nuclear Damage Compensation Funds”, infra note 418.
408 Article IV of the Joint Protocol provides that “1/. Articles I to XV of the Vienna Convention shall be applied,with respect to the Contracting Parties to this Protocol which are Parties to the Paris Convention, in thesame manner as between Parties to the Vienna Convention. 2/. Articles 1 to 14 of the Paris Convention
shall be applied, with respect to the Contracting Parties to this Protocol which are Parties to the Vienna
Convention, in the same manner as between Parties to the Paris Convention.”

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the 1992 Declaration of the contracting parties’ intention to consent to the early mobilisation offunds under the Brussels Supplementary Convention; 409 and•the 1992 OECD Council Recommendation on the Application of the Brussels Supplementary
Convention to take measures to ensure the uniform application of the Brussels
Supplementary Convention. 410

With regard to the geographical scope of application, the Revised Paris Convention and the
Revised Vienna Convention adopted different approaches regarding its extension: the Revised
Paris Convention offers a “conditional extension” 411 , while the Revised Vienna Convention
provides for an “opting out” clause. 412 Both conventions do make a distinction between “nuclear”
and “non-nuclear” states, and refer to “equivalent reciprocal benefits” as a case for the possible
exclusion of “nuclear” non-contracting states from their respective geographical scopes ofapplication. 413 In addition, both conventions provide that, in respect of “nuclear” noncontracting states, there is a possibility to fix lower amounts in case such a state “does not afford

409 As provided in the Note by the Secretariat in NEA(2005), “Recommendations Concerning the Operationof the Brussels Supplementary Convention: Status of Notifications/Declarations made by Contracting
Parties [First Revision of Document NEA/LEG/DOC(97)7]”, OECD Doc. NEA/NLC/DOC(2005)2, “Thepractical result of the application of the Joint Protocol is an extension of the geographical scope of theParis Convention to benefit Parties to the Vienna Convention and Joint Protocol. This may result inearlier exhaustion of the financial security of the operator liable under the Paris Convention and of theamount of public funds to be made available by the contracting party in whose territory the nuclear
installation of the operator liable is situated under the Brussels Supplementary Convention. This, inturn, may lead to earlier mobilisation of public funds under the latter Convention. Taking into accountthat the prior consent of the contracting parties to the Brussels Supplementary Convention being
necessary in such a case [Art. 14(b) of the Brussels Supplementary Convention], the BSC contracting
parties were invited to state in advance their intention to give consent to this early mobilisation offunds. All contracting parties have made declarations to the Secretary General of the OECD to this effect.
Contracting parties also stipulated in their declarations that this consent would be confirmed, in due
course, to the Belgian government as Depository for the Brussels Supplementary Convention.”
410 Secretariat note: One of the reasons behind the adoption of this Recommendation was the preservationof the international tier of compensation under the Brussels Supplementary Convention. See supranote 397.
411 See Article 2(a) of the Revised Paris Convention.
412 See Article I.A of the Revised Vienna Convention.
413 The Exposé des Motifs of the Revised Paris Convention provides in its paragraph 10 in this respect that “…anyother non-Contracting [nuclear] State must have nuclear liability legislation in force that affords
equivalent reciprocal benefits and that is based upon principles identical to those contained in the Paris
Convention. Since such States pose a risk of nuclear damage in Paris Convention States, it is only logicalthat the benefits under the Paris Convention should accrue to victims in such States only if those States
extend the benefits of their own legislation to victims in Paris Convention States. The additional
requirement that such legislation be based upon principles identical to those contained in the Paris
Convention is designed to ensure that victims in Paris Convention States who suffer damage as a result ofa nuclear incident occurring in such a non-Contracting State will have the same basic rights with respect
to claiming compensation against the liable operator in the non-Contracting State as will victims in the
non-Contracting State when bringing their claims for compensation against the liable operator under theParis Convention. The inclusion of this additional requirement thus transforms the principle of reciprocity
into concrete terms.” NEA (2020), Exposé des Motifs of the Revised Paris Convention, supra note 187.The
Explanatory Texts of the 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention on
Supplementary Compensation for Nuclear Damage mentions in its Section 2.2.3 that “[…] the idea behind thisprovision [Article I A.2] is that a nuclear State should either join the Vienna Convention or afford‘reciprocal benefits’ if it wants the funds available under the Convention to cover damage suffered in its
territory. The question may arise of the precise meaning of reciprocity in this context. It seems obviousthat the exclusion of damage suffered in a non-Contracting nuclear State could be based on the fact thatthe legislation of that State does not provide for compensation of damage suffered by victims in States
party to the Vienna Convention. It is less obvious that the exclusion could be based on the fact that thelegislation of that State does not ensure the same amount of compensation or, a fortiori, that it does notconform with all the principles of nuclear liability embodied in the Vienna Convention.” IAEA (2020), The
1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention on Supplementary
Compensation for Nuclear Damage – Explanatory Texts, supra note 110.

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reciprocal benefits of an equivalent amount”. 414 Article XIII.2 of the Revised Vienna Conventionis, however, broader than the similar provisions of the Revised Paris Convention, as it covers
not only “nuclear” non-contracting states but any “[other] State” (i.e. it applies to the contracting
parties to Revised Vienna Convention as well). 415
Concerning the effect of the right to derogate envisaged in Article XIII.2 of the Revised Vienna
Convention in respect to the contracting parties to both the Paris Convention and the Joint
Protocol, the Explanatory Text of the Joint Protocol provides further explanation as to “whether, under
the terms of the Joint Protocol, the Contracting Parties to one Convention may limit the amount414 See Article 7(g) of the Revised Paris Convention and Article XIII.2 of the Revised Vienna Convention. The
Exposé des Motifs of the Revised Paris Convention provides in its paragraph 67 the following explanation in thisrespect “[…] by virtue of Article 2(a)(iv) the Convention applies to nuclear damage suffered in a nonContracting State which has nuclear liability legislation in force that affords equivalent reciprocal benefits
to those provided under the Convention and that is based on principles identical to those of theConvention. It may be the case, however, that the non-Contracting State’s legislation provides forreciprocal benefits which are globally equivalent to those provided under the Convention without actuallyproviding for liability amounts identical to those fixed by the Convention. In these cases, the Contracting
Parties are permitted to establish liability amounts that are lower than those established by theConvention and equal to those offered by that non-Contracting State.” NEA (2020), Exposé des Motifs of the
Revised Paris Convention, supra, note 187.
415 Article XIII.2 of the Revised Vienna Convention provides that “Notwithstanding paragraph 1 of this
Article, insofar as compensation for nuclear damage is in excess of 150 million SDRs, the legislation of
the Installation State may derogate from the provisions of this Convention with respect to nuclear
damage suffered in the territory, or in any maritime zone established in accordance with theinternational law of the sea, of another State which at the time of the incident, has a nuclear installationin such territory, to the extent that it does not afford reciprocal benefits of an equivalent amount.” The
Explanatory Texts of the 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention
on Supplementary Compensation for Nuclear Damage mentions in this regard in its Section 2.8 that “[…] itmust be recognized that the drafting of the new provision is not entirely satisfactory and could give rise
to doubts as to its precise implications. Inasmuch as it refers to ‘another State’, as opposed to a ‘nonContracting State’, Article XIII.2 is clearly intended to apply to a Contracting Party also. On the other
hand, whereas the context of the new provision might be seen as implying that a derogation could only
related to the non-discrimination principle, a broader interpretation is also possible, since reference ismade to the possibility of derogating from ‘the provisions’ of the Convention. Under this broader
interpretation, it could be argued, for example, that the legislation of the Installation State could
establish lower amounts of compensation in respect of damage suffered in a State not affording
reciprocal benefits; this interpretation may be seen as reinforced by the fact that the new provision isintended to apply to a nuclear State not affording ‘reciprocal benefits of an equivalent amount’, alanguage which clearly refers to the amount of compensation. In other words, when it comes to damage
suffered in a nuclear Contracting party, lack of reciprocity, under the strict interpretation of Article
XIII.2, would only allow for a derogation from the non-discrimination principle; for example, theInstallation State could exclude damage suffered by nationals of that State. Under the broader
interpretation of that provision, the Installation State could establish lower amounts of compensationin respect of damage suffered in a Contracting Party which does not provide reciprocal benefits of anequivalent amount, for example, because it has availed itself of the pashing-in provision in Article
V.1(c). The same holds true as far as damage suffered in a non-Contracting nuclear State is concerned,
but then only if the legislation of the Installation State chooses not to exclude that damage. In fact,
since Article I A.2 and 3 allows the legislation of the Installation State to exclude such damage from“the application” of the Convention, it could be argued that Article XIII.2 would not even apply in sucha case. On the other hand […] whereas there is no doubt that an exclusion under Article I A.2 and 3
could be based on the fact that the legislation of the third State concerned does not cover damage
suffered in the States party to the Vienna Convention, it is not so obvious that such an exclusion could
be based on the mere fact that the same amount of compensation is not made available. Therefore, if
the Installation State opts for a strict interpretation of Article I A.2 and 3, it could still avail itself of thepossibility envisaged in Article XIII.2.” IAEA (2020), The 1997 Vienna Convention on Civil Liability for Nuclear
Damage and the 1997 Convention on Supplementary Compensation for Nuclear Damage – Explanatory Texts,
supra, note 110.

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of compensation available under their legislation to the lesser amount that may be available under
the legislation of the Contracting Parties to the other Convention.” 416
Differences in the amounts of compensation according to the revised Paris Convention andthe Revised Vienna Convention, amplified by the application of the Joint Protocol, may lead to asituation where victims of a nuclear incident for which a foreign operator is liable may be entitledto a higher or lower amount of compensation than the one to which they would be entitled intheir own country. Under the revised Paris/Brussels regime, this issue is mitigated by the existenceof an additional mechanism of compensation of public funds, which benefit the BSC states only.
However, and taking into account that certain contracting parties to the Paris Convention opted
for an unlimited liability for nuclear operators (e.g. Germany), a nuclear operator may remain
liable for paying a compensation amount which goes beyond the liability limits provided under
the Paris/Brussels regime (the so-called “excess” funds). This situation led to the adoption of a
specific Recommendation on the Application of Reciprocity Principle to Nuclear Damage Compensation
Funds by the Conference on the Revision of the Paris Convention and the Brussels Supplementary
Convention on 12 February 2004. 417 It was recommended that contracting parties to the Brussels
Supplementary Convention agree not to apply special conditions (as would be allowed under
Article 15(b) of the Paris Convention) for the allocation of “excess funds” to compensate victims incertain “nuclear” states (i.e. other contracting parties to the Revised Paris Convention, contracting
parties to both the Vienna Convention and to the Joint Protocol and non-convention nuclear states)
provided that such states afford “reciprocal benefits of an equivalent amount”, or in any “nonnuclear” state. 418 The main purpose of this non-binding instrument is to allow a compromised
solution to protect potential victims in the contracting parties to the Paris Convention and the

416 The Explanatory Text of the Joint Protocol provides in its Section 3.2.3. that “Inasmuch as the new Article XIII.2of the 1997 Vienna Convention refers to ‘another State’, it is clearly is intended to apply to both to theother Contracting Parties to the Vienna Protocol and to non-Contracting States, to the extent that damage
suffered in such States is covered. In any event, if a Contracting Party to the Vienna Protocol ratifies or
accedes to the Joint Protocol, it would have to cover damage suffered in the Contracting Parties to both theParis Convention and the Joint Protocol, but Article IV of the Joint Protocol would allow it to apply to the
new Article XIII.2 to these latter States ‘in the same manner’ as it applies between Contracting Parties tothe Vienna Protocol. […] It appears, therefore, that, under the above interpretation of Article XIII, para. 2,of the 1997 Vienna Convention, the Contracting Parties to the Vienna Protocol may resort to reciprocity inrespect of compensation available in excess of 150 million SDRs, but, for those of them that are party to
the Joint Protocol, it is highly unlikely that they may in fact do so vis-à-vis the Contracting Parties to theParis Convention that are also party to the Joint Protocol, in view of the much higher amount ofcompensation that will be available under this latter Convention once it is amended by the 2004 Protocol.
On the other hand, despite the much lower amount of compensation available under the other
Convention, the Contracting Parties to the amended Paris Convention that are also party to the Joint
Protocol will only be allowed to resort to reciprocity vis-à-vis the Contracting Parties to the Vienna
Convention in respect of compensation available in excess of €700 million.” IAEA (2013), Explanatory Textof the Joint Protocol, supra note 347.
417 NEA (2004), “Recommendation on the Application of the Reciprocity Principle to Nuclear Damage
Compensation Funds”, Annex III to the Final Act of the Conference on the Revision of the Paris
Convention and the Brussels Supplementary Convention, 12 Feb. 2004 (Recommendation on the Applicationof Reciprocity Principle to Nuclear Damage Compensation Funds), available at: www.oecd-nea.org/law/finalact-conference-revision-pc-bc.pdf (Accessed 31 Aug. 2023).
418 Recommendation on the Application of Reciprocity Principle to Nuclear Damage Compensation Funds states that“Ifa Contracting Party to the Brussels Supplementary Convention has satisfied its obligations under that
Convention up to the amount referred to in Article 3(a) thereof [i.e. EUR 1.5 billion], if the amount of
nuclear damage to be compensated exceeds the aforementioned amount and if funds remain available,
whether provided by insurance or other financial security pursuant to Article 10 of the Paris Convention
or by public funds pursuant to national legislation enacted prior to the nuclear incident which requiresthat a specified amount of public funds will be provided to compensate nuclear damage, it should not
make use of the right provided for in Article 15(b) of the Paris Convention to apply special conditions tothe compensation of nuclear damage using such remaining funds in respect of: a) a State referred to in
Article 2(a)(i), (ii) or (iv) of the Paris Convention which, at the time of the nuclear incident, has a nuclear
installation in its territory or in any maritime zone established by it in accordance with internationallaw and which affords reciprocal benefits of an equivalent amount; b) any other State which, at thetime of the nuclear incident, has no nuclear installation in its territory or in any maritime zone
established by it in accordance with international law.” [Italic added by the Secretariat]

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Brussels Supplementary Convention against discriminatory treatment by restricting the use ofreciprocity conditions. Although not legally binding, the recommendation is considered a strong
policy commitment on the part of those states.
Given that there are important differences among the minimum liability amounts provided
under the nuclear liability conventions, as well as among the amounts provided in national
legislation, the contracting parties to the Revised Paris Convention in their effort to minimise theimpact of such differences, adopted on 23 November 2004 a Joint Declaration whereby they
approved in advance the deposit of a reservation regarding the reduction of compensation to be
paid to victims in certain states, 419 unless and “to the extent such other State does afford reciprocal
benefits of an equivalent amount.” 420 The contracting parties to the Revised Paris Convention havesubsequently confirmed their agreement both on the principle and the text of this Declaration.
The effects the reservation suggested in the Joint Declaration would have on the Joint Protocol
raised discussions on its legal validity, especially as to whether such reservation would defeat theobject and purpose of the Joint Protocol. However, a legal opinion made by Professor Alain Pellet
on this topic concluded that the reservation would be admissible since “in itself such a reservation
would have no effect on the application of the 1988 Joint Protocol”. Indeed, such a reservation
would apply to the contracting parties to the Paris Convention and to the parties to both theVienna Convention and the Joint Protocol, without discrimination, since “given the wording of
Article IV of the Joint Protocol, the reserving State will have the benefit of such a reservation in its
relations with the Contracting Parties to the Protocol which are not Parties to the Paris Convention.
In other words, since ‘the Parties to either convention are to be treated as if they were Parties tothe other’, the inescapable consequence is that a State Party to the Paris Convention which has
made a reservation in keeping with the Joint Declaration, will have the benefit of its reservationin its relations with the Parties to the Joint Protocol.” 421 Therefore, and based on the legal opinionof Professor Pellet, the reservation contained in the Joint Declaration would be opposable to theVienna Convention states parties to the Joint Protocol.
In conclusion, the existing variety of compensation amounts provided in the nuclear liability
conventions, combined with the application of the Joint Protocol, have resulted in theestablishment of reciprocity conditions. 422 However, introducing reciprocity rules results in the

419 These states are listed in Article 2(a)(i), Article 2(a)(ii) and (iv), and Article 2(b) of the Revised Paris
Convention (i.e. the contracting parties to the Revised Paris Convention; the contracting parties to boththe Vienna Convention and to the Joint Protocol; certain non-Paris Convention nuclear states and statesthat are covered by the scope of application of the Revised Paris Convention according to the national
legislation of a contracting party in whose territory the nuclear installation of the operator liable issituated). It is worth noting that “non-nuclear” states are not impacted by the Joint Declaration. See CPPC
(2004), Summary Report, Meeting of the CPPCs, 23 Nov. 2004, Paris, France, NEA Doc. NEA/LEG/CPPC(2004)2,
p. 8, Annex 2, “Draft Proposal for a Joint Declaration by the Signatories to the Protocol of 12 February 2004
to Amend 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 and by the Protocol of 16 November 1982 (the “Paris
Convention”) (CPPC Restricted) (Joint Declaration).
420 The Joint Declaration states that “The Signatories to the Protocol of 12 February 2004 to amend the Paris
Convention hereby declare that if the following reservation is made in accordance with Article 18 of theParis Convention, such a reservation is accepted: “[Name of State making reservation], without prejudice
to Article 2(a)(iii) [i.e. non-nuclear States], reserves the right to establish in respect of nuclear damage
suffered in the territory of, or in any maritime zones established in accordance with international law of,or on board a ship or aircraft registered by, a State other than [Name of State making reservation], amountsof liability lower than the minimum amount established under Article 7(a) to the extent that such otherState does not afford reciprocal benefits of an equivalent amount.” [Italic added by the Secretariat] Ibid.
421 Source: Pellet, A. (2011), “Legal Opinion Regarding the Effects of a Reservation proposed by the
Signatories to the 2004 Paris Protocol on the 1988 Joint Protocol Relating to the Application of the Vienna
and Paris Conventions” (unpublished).
422 Secretariat note: It is worth noting that the CSC also contains its own provisions related to reciprocity. Article
XII.2 of the CSC provides that “Nothing in this Convention shall prevent any Contracting Party frommaking provisions outside the scope of the Vienna or the Paris Convention and of this Convention,
provided that such provision shall not involve any further obligation on the part of the other Contracting
Parties, and provided that damage in a Contracting Party having no nuclear installations within its
territory shall not be excluded from such further compensation on any grounds of lack of reciprocity.”

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creation of an additional source of legal complexity. This is one of the examples of thefragmentation of the international nuclear liability regimes that needs to be remedied in theinterest of victims of nuclear damage. 423 To remedy this situation, states should consider
alignment of the minimum liability limits to remove one of the main causes of reciprocity(i.e. differences in the amounts of liability) and promote harmonisation of nuclear liability laws.

Amounts available: The impact of providing priority rules
Ms Beata Sparażyńska, Chief Expert for EU and International Affairs, Nuclear Energy
Department, Polish Ministry of Energy and Mr Kamil Adamczyk, Expert for Legal Affairs,
Nuclear Energy Department, Polish Ministry of Energy, reported on the impact of providing
priority rules to the amounts available for compensation.
Priority rules are designed to mitigate the situation of insufficiency of compensation amounts
available by streamlining their distribution. Under the original nuclear liability conventions (theParis Convention and the Vienna Convention), 424 the distribution of compensation remains at thediscretion of national courts. However, some states introduced priority rules into their national
legislation, independently from the nuclear liability conventions. There are several possiblemodels of distribution of compensation that may be used (e.g. “first come-first served” basis or
the proportional compensation of all claims). There is a certain consensus that claims for loss oflife or personal injury should take priority over claims for damage to property and other types ofclaims, even though they are usually lodged significantly later than other types of claims.
Establishing priority rules for compensation of damage is one way to elevate claims for loss of life
or personal injury to a more favourable position; another possibility is the extension of theprescription period for such claims. Since the nuclear liability conventions establish limits ofliability, and even if according to certain national legislation liability of nuclear operators is
unlimited, financial security is always limited. Therefore, in the case of a severe nuclear incident,
the amounts available for compensation would likely be insufficient to cover all the damage
suffered. If no priority rules are established, it may happen that severe personal injuries arecompensated only partially or, in a worst case scenario, not compensated at all as the available
funds would have already been used on claims filed earlier.
One of the lessons learnt from the Chernobyl accident was the effect of the lack of priority
in the distribution of compensation for nuclear damage. Discussions on the need to include
priority rules in the conventions revealed the difference in approach among the states regarding
priority rules; some considered the need to provide a formula to clearly establish what part ofthe overall amount available for compensation should be dedicated to compensating loss of life
or personal injury claims, as well as the period of time during which these claims could benefit
from a priority treatment.

423 Secretariat note: As already mentioned (see the Introductory Session), an initiative in the area of
harmonisation of nuclear liability amounts in Europe was launched in 2007 at the EC level and resulted in
the establishment of Nuclear Liability Groups at the EU level (2011-2013) with the purpose of analysing
different procedures to indemnify victims which are already in place in the EU member countries, andinvestigating possibilities of harmonising nuclear liability legislations within the EU to find, among otherissues, appropriate solutions for non-nuclear countries which do not wish to become party to any
international nuclear liability conventions. A set of recommendations of the Nuclear Liability Working
Group 3 on liability amounts was issued, by the overall activities have been indefinitely suspended since2014.
424 Article 11 of the Paris Convention and the Revised Paris Convention provides that “The nature, formand extent of the compensation, within the limits of this Convention, as well as the equitable
distribution thereof, shall be governed by national law.” Article VIII of the Vienna Conventions states
that, “subject to the provisions of this Convention, the nature, form and extent of the compensation, as
well as the equitable distribution thereof, shall be governed by the law of the competent court.” Article
11 of the CSC Annex contains identical provisions.

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In the end, a priority rule was only introduced in the Revised Vienna Convention. 425 Neither
the Revised Paris Convention nor the CSC have similar provisions. 426 However, the risk of
insufficient funds is to some extent mitigated in the Brussels Supplementary Convention, as wellas in the CSC by the mobilisation of additional public funds. With regard to the priority ruleprovision of the Revised Vienna Convention, no precise formula was given, and it was left to thediscretion of the relevant national legislation, which led to the lack of an adequate definition insome states. Finally, the priority rule established under the Revised Vienna Convention isinapplicable to the loss of life or personal injury claims brought 10 years after the nuclear
incident. 427
The following are examples of priority rules defined at the national level: 428

Contracting parties to the Revised Paris Convention•

France: Article L. 597-14 of the French Environmental Code 429 provides that if, as a resultof a nuclear accident, it appears that the maximum amounts available are likely to be
insufficient to compensate all damage suffered, a decree adopted by the Council of

425 As further explained in Section 2.7 of the Explanatory Texts of the 1997 Vienna Convention on Civil Liability
for Nuclear Damage and the 1997 Convention on Supplementary Compensation for Nuclear Damage, the Revised
Vienna Convention “[…] restricts the discretion given to the law of the competent court” by introducing
a specification in Article I.1(k) of the Revised Vienna Convention whereby the law of the competentcourt is to determine the extent to which nuclear damage other than loss of life or personal injury andloss of or damage to property gives rise to compensation. In addition, a new paragraph relating topriority for claims for loss of life or personal injury was introduced in Article VIII.2 of the Revised Vienna
Convention, which provides that “subject to application of the rule of sub-paragraph (c) of paragraph1of Article VI, where in respect of claims brought against the operator the damage to be compensatedunder this Convention exceeds, or is likely to exceed, the maximum amount made available pursuant
to paragraph 1 of Article V, priority in the distribution of the compensation shall be given to claims in
respect of loss of life or personal injury.” According to the Explanatory Texts of the 1997 Vienna Convention
on Civil Liability for Nuclear Damage and the 1997 Convention on Supplementary Compensation for Nuclear
Damage, “[…] this provision aims at preserving the favourable status of the victims who are likely tosuffer most as a result of a nuclear incident, thus ensuring a proper balance of fairness in compensationof nuclear damage.” IAEA (2020), The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the1997 Convention on Supplementary Compensation for Nuclear Damage – Explanatory Texts, supra note 110.
426 Although no express provisions on priority rules are contained in the CSC, Article 9.4 of the CSC Annex
states that “If the national law of a Contracting Party provides for a period of extinction or prescription
greater than ten years from the date of a nuclear incident, it shall contain provisions for the equitable andtimely satisfaction of claims for loss of life or personal injury filed within ten years from the date of thenuclear incident.” With regard to the Revised Paris Convention, the Exposé des Motifs of the Revised Paris
Convention provides in its paragraph 90 that “It is for each State to decide whether measures for equitable
distribution should be taken in advance or at the time when actions are brought. Measures may involve
providing a limit on the amount of compensation paid to each person suffering nuclear damage or limits
upon the amounts of compensation paid for injury or death of persons and all other types of nuclear
damage. Similarly, where the nuclear damage to be compensated exceeds or is likely to exceed the amountavailable under Article 7 of the Convention, it is for each State to decide whether or not priority will begiven to claims for loss of life or personal injury in the distribution of compensation. Nevertheless, theContracting Parties agree that the concept of equitable distribution of compensation allows for the settingof priorities for compensating claims.” NEA (2020), Exposé des Motifs of the Revised Paris Convention, supranote 187.
427 Article VI.1(c) of the Revised Vienna Convention provides that “Actions for compensation with respect
to loss of life and personal injury or, pursuant to an extension under sub-paragraph (b) of this paragraphwith respect to other damage, which are brought after a period of ten years from the date of the nuclear
incident shall in no case affect the rights of compensation under this Convention of any person who
has brought an action against the operator before the expiry of that period.”
428 Secretariat note: For information on the priority rules on compensation for nuclear damage in national
legislation, see Priority Rules on Compensation for Nuclear Damage in National Legislation table available at:www.oecd-nea.org/priority-rules (Accessed 31 Aug. 2023).
429 French Environmental Code issued by Order No. 2012-6 of 5 January 2012 (Official Journal of the French
Republic of 6 Jan. 2012, p. 10).

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Ministers, published within six months of the date of the accident, shall record thisexceptional situation and determine the arrangements for distributing the amounts. In
that case, the amounts available shall be allocated as follows:•1)priority shall be given to the compensation of bodily injuries in a manner to be
determined by analogy with the legislation on occupational accidents andprofessional diseases;2)

the remaining amounts after this first compensation, if any, shall be allocatedamong the victims in proportion to any bodily injury still to be compensated andthe other nuclear damage suffered.

Netherlands: Pursuant to the Act of 17 March 1979 containing rules on liability for damage
caused by nuclear accidents, 430 if the total amount of the claims submitted exceeds the
maximum amount of liability of the operator according to the Act (the “nuclear liability
amount”), the amount stated in Article 3(a) of the Brussels Supplementary Convention, orthe amount to be provided by the state according to the Act, the following rules shall apply
to the claims in each case in so far as they can be met out of these amounts:
1)

where the claims relate only to damage to persons, the claims shall be reduced
proportionately;2)

where the claims relate only to damage other than that referred to in paragraph(1) above, the claims shall be reduced proportionately;

3)

where the claims relate both to damage as referred to in paragraph (1) and todamage as referred to in paragraph (2):a)

2/3 of the nuclear liability amount shall be allocated solely for the payment of theclaims as referred to in paragraph (1) (which claims shall, if necessary, be reduced
proportionately),b)

the remaining 1/3 shall be allocated for the payment of the claims as referred toin paragraph (2) and of the claims as referred to in paragraph (1), in so far as thelatter claims would otherwise not be paid,c)

if an amount is left over after full payments of the claims referred under (1) it will
be used for the payments for claims referred to under (2) if not alreadycompensated.

Pursuant to Section 18(1) of the Act, if on the territory of the Netherlands as a result of a
nuclear accident damage is suffered for which compensation is required to be paid
under the Brussels Convention or the Act, and the funds available are inadequate tocompensate for damage, the state shall make available public funds required to pay
compensation for that damage up to an amount of EUR 2,268,901,080.45. Pursuant to
Section 27(2) of the Act, “[w]hen applying the Section 18 the compensation for claims in
respect of damage to persons instituted after a period of ten years has elapsed since thedate of the nuclear accident shall be at least ten per cent of this additional amount to bemade available by the State”;•

Norway: Under Section 32(1) of the Act on Nuclear Energy Activities of 1972, 431 if theamount of liability available under the Paris Convention and the Brussels Supplementary
Convention does not cover the claims of all victims, the compensation shall be reduced
proportionally. Under Section 32(2), the Minister of Health and Care Services may decidethat loss of life and personal injury shall be given priority over other types of claims if theavailable funds cannot fully cover all claims;

430 Act of 17 March 1979 Containing Rules on Liability for Damage Caused by Nuclear Accidents, as
amended (Stb. 2008, No. 509).
431 1972 Act on Nuclear Energy Activities, No. 28, as amended.

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Slovenia: Under Article 16 of the Act on Liability for Nuclear Damage, 432 if the amountof the operator's liability for nuclear damage is not sufficient to provide for the fullcompensation to the injured parties, the following must be taken into account in thesettlement of compensation claims:
1)

if the claims relate in part to damage arising from the loss of life or a personal
injury and in part to other damage;a)

2/3 of the available resources shall be allocated immediately to cover the damage
arising from the loss of life or a personal injury in its entire amount or inproportion to the available resources,b)

1/3 shall be allocated to cover the claims for other damage,2)•

if the damage arising from the loss of life or a personal injury is fully or in partcompensated for by the resources of the social or health insurance, the right ofrecourse of those paying the compensation shall be considered as claims forother damage;

Spain: The implementing law of the Revised Paris Convention 433 provides for thefollowing priority rules for compensation of nuclear damage:
Death or bodily injury to persons. Claims must be lodged within the first 3 years fromthe date on which the incident occurred;
1)

Cost of measures of reinstatement of impaired environment, the cost of
preventive measures and any loss or harm caused by such measures. Claims
must be lodged within the first 3 years calculated from the date on which theincident occurred. Compensation will be payable without further priority
between such claims;

2)

Loss of any property; financial losses arising out of damage to persons or loss oflife and damage to or loss of property; and loss of income directly related to theuse or enjoyment of an environment that has been significantly impaired.
Claims must be lodged within the first 3 years from the date on which theincident occurred. Compensation will be payable without further priority
between such claims;

3)

Claims lodged after 3 years from the date on which the incident occurred will
elapse. Compensation will be payable without further priority between suchclaims and up to the maximum limit of liability established.

Contracting parties to the Vienna Convention•

Bulgaria: The Bulgarian Act on the Safe Use of Nuclear Energy (Article 132 paragraph 5)
provides that loss of life and physical injury shall be compensated first: “Whensatisfying claims for compensation for nuclear damage, claims for loss of life or physicalinjury shall be compensated with priority”; 434•

Mexico: In accordance with Article 18 of the Act on Third Party Liability for Nuclear
Damage, the following cases of nuclear damage should be compensated on a priority
basis: a) loss of life; b) loss of total capacity; and c) partial disability. 435

432 See Article 16 of the 2010 Act on Liability for Nuclear Damage, supra note 126.
433 Law 12/2011 of 27 May 2011 on Civil Liability for Nuclear Damage or Damage Caused by Radioactive
Materials (BOE no. 127 of 28 May 2011).
434 Act on the Safe Use of Nuclear Energy, as amended (State Gazette No. 63 of 28 June 2002).
435 Act on Third Party Liability for Nuclear Damage (Official Gazette [Diario Oficial de la Federación], no. 41
of 31 December 1974).

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Contracting parties to the Revised Vienna Convention•

Poland: The priority rules on compensation for nuclear damage are established under
Articles 102 and 103 of the Atomic Energy Act. 436 In accordance with the Act, the operator’s
liability for nuclear damage is limited to the amount equivalent to SDR 300 million (Article
102.1). In the event the claims for nuclear damage exceed this amount, the operator shallestablish a limited liability fund, of which the procedures for the establishment anddistribution shall be regulated, as appropriate, by the provisions of the Sea Code on thelimited liability for sea claims subject to Articles 102(3) to (5) of the Atomic Act. If, apartfrom the damage to property or the environment, nuclear incident causes also loss of life
or personal injury, 10% of the corresponding insurance guarantee shall be earmarked forsettling the claims involving nuclear damage resulting in loss of life or personal injury(Article 103c.1). If within five years from the date of nuclear incident the claims against
the operator involving nuclear damage resulting in loss of life or personal injury do not
exceed the total amount of the guarantee earmarked exclusively for settling such claims,
the remainder of this guarantee shall be used for settling the claims involving damage tothe property or environment, and also the claims for loss of life or personal injury brought
up not later than within 10 years from the date of the nuclear incident (Article 103.2). If
the corresponding financial security is not available or is insufficient to satisfy all nuclear
damage claims, the National Treasury will guarantee the payment up to the limit ofSDR 300 million. Claims for the compensation of personal injury shall not be barred bylimitations in time (Article 105.1).

Another possible approach regarding the establishment of the priority rules can be found inGerman law, where, on the one hand, Section 32(3) of the Atomgesetz 437 provides that priority isgiven to claims for loss of life or personal injury brought within 10 years over any claims brought
after expiration of this period. In addition, Section 35 of the Act provides that the government canissue a provisional ordinance – until Parliament passes an act – which may establish other criteria
for the distribution of compensation in case of a nuclear incident that exhausts the means forcompensation available. On the other hand, according to the “solidarity agreement”, 438 parent
companies of German nuclear power plants agreed that claims of victims have priority over rightsof recourse against the operator that parent companies may have according to the solidarity
agreement.
Having priority rules in place before a nuclear incident occurs offers strong advantages in asituation where compensation for nuclear damage shall be provided with no delay. Proportionate
distribution of claims may lead to a partial compensation of severe personal injuries, to the same
extent as other types of damage. Should nuclear liability claims be distributed on a “first comefirst served” basis, there is an issue of allocating funds among early and late claimants in asituation where there may be little remaining of available funds for victims who became ill several
years after the accident. On the other hand, if payment is delayed until all the claims are judged,
victims may have to wait many years to receive their compensation.
Based on the examples provided above, priority rules would likely give claims for loss of life
or personal injury an advantage over other types of claims. However, it is likely that such priority
would cease to apply over a certain period of time (e.g. ten years after a nuclear incident according
to the Revised Vienna Convention). At the same time, many radiation-related injuries may
become evident at a later stage, so that it would be impossible for them to benefit from priority.
On the other hand, extending priority rules to the whole period of prescription would result in thewithholding of a portion of the compensation amount for a very long period of time (30 years
according to the Revised Paris Convention and the Revised Vienna Convention), with additional
complications regarding establishing the causal link between the damage and the nuclear incident.
In addition, this would not serve the interests of victims who bring claims within the ten-year
period, as they could only expect a reduced amount of compensation. Therefore, the mostequitable solution appears to be to give priority to claims for personal injury or loss of life only for

436 Act of 29 November 2000 on Atomic Energy, supra note 66.
437 Atomgesetz, supra note 173.
438 For more information on the “solidarity agreement”, see Raetzke, C. (2016), supra note 255, pp. 20-31.

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a certain period of time. Moreover, having priority rules in place should trigger the introduction in
the national legislation of a mechanism of damage assessment to determine whether the damage
will or is likely to exceed the amounts available. Unfortunately, this is not always the case.
From the insurers’ point of view, having priority rules in place may be irrelevant, as far as
the amount of compensation to be paid is concerned, but it would however have a significant
impact on how the claims for compensation need to be handled. Priority rules impose an orderof claims settlement, which is usually the exact opposite of the order in which the claims arelodged. All this adds more difficulties to the task of handling a large number of claims over alarge period of time.
As a conclusion, despite the unanimity of views regarding the general principles of nuclear
liability, there are still differences among states as to how to approach priority rules(i.e. whether they should be included in the nuclear liability conventions, national laws, orwhether it is enough if they are established after a nuclear incident occurs). Some states oppose
the inclusion of priority rules with regard to loss of life or personal injury by arguing that theseclaims could be compensated under the social security system. 439 Certain states question thenecessity to provide priorities in the case of insufficiency of available funds as the state would
most likely step in, especially when it comes to personal injuries. As important as priority rules
appear, it may be equally important for a state to have in place a mechanism of damage
assessment and a proper claims handling system.

Discussion session
A question arose as to whether there are priority rules at the international or national levels that
apply to the time allocated to pay compensation for nuclear damage. It appeared that one of theconsequences of a system which provides priority rules would be the constant existence of a delay
in dealing with the portion of funds allocated to certain types of claims according to theestablished priorities, because some of the money needs to be reserved. Regarding the time period
for which the money has to be reserved, approaches vary among states. The same holds true forthe time frame allocated to the payment of claims subject to priority rules.
It was observed that the amounts of compensation for nuclear damage provided in the nuclear
liability conventions seem to be far from being sufficient should a major nuclear incident occur.
When the original nuclear liability conventions were drafted, the extensive consequences(including financial) of a major nuclear incident were unknown. However, based on the lessons
learnt from past nuclear incidents, a question may be raised as to whether the current nuclear
liability conventions are still fit to deal with the risks of an exceptional character and far-reachingconsequences of a large-scale nuclear incident, or whether they are better suited for small or
medium size incidents. Even though the amounts of compensation currently available under the
nuclear liability conventions seem to be unfit to deal with the consequences of a major nuclear
incident, they can however cope with small and medium-sized incidents. In addition, taking theexample of the priority rules provided in some international and national legal instruments,
establishing a causal link between the incident and the damage suffered several years after theaccident may constitute a significant issue that could heavily impact the process of compensating
victims who need to get emergency payments immediately after the accident. The sameobservation may be relevant to reciprocity conditions which, in the case of a nuclear incident
having transboundary effects in several countries with different levels of reciprocity, would add
difficulties to the process of compensation in practice.
It was also observed that the existence of priority rules may impact the implementation ofurgent preventive measures (such as evacuation or decontamination), should the compensation
for preventive measures be subject to the availability of funds that would remain after the money
is put aside to cover prioritised heads of damage. However, even though such a risk exists, it
should be considered together with the advantages to the compensation process that priority rules
may offer. Indeed, the solutions to manage the issue of amounts available for compensating

439 See Article 6(h) of the Paris Convention and the Revised Paris Convention; Article IX.1 of the Vienna
Convention and the Revised Vienna Convention; and Article 8.3 of the CSC Annex.

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victims (reciprocity and priority rules) have both advantages and disadvantages. In order to avoid
complications that such solutions may create in the process of compensating for nuclear damage,harmonisation of nuclear liability amounts should be sought and encouraged.

Overview of responses to the questionnaire
Operator’s nuclear liability amountThis part of the questionnaire focused on the amounts that would be available under the national
legislation of the responding country to compensate victims suffering nuclear damage.
There is a variety of operator’s nuclear liability amounts provided under the national
legislation of the responding countries:i)

Six responding countries reported that their national law provides for an unlimited
amount of nuclear liability. Examples:–

Australia: Should third party liability be determined based on general tort law, theamount for liability would be unlimited. However, for some types of economic loss,
particularly future economic loss and non-economic loss, liability would be capped;–

Austria and Japan: Liability imposed on the operator of a nuclear installation isunlimited;–

Finland: Section 18 of the Act (No. 493/2005) amending the Nuclear Liability Act(No 484/1972) stipulates that “[…] the liability of an operator of a nuclear installation
situated in Finland in respect of nuclear damage caused by any single nuclear
incident and suffered in Finland shall be unlimited”. However, for nuclear damage
suffered outside Finland, the liability shall not exceed EUR 700 million; 440–

Germany: In accordance with Section 31(1) of the Atomgesetz, “The liability of theoperator of a nuclear installation under the Paris Convention in conjunction with§ 25, paras. (1), (2) and (4), and also under the Paris Convention and the Joint Protocolin conjunction with § 25, paras. (1), (2) and (4), shall be unlimited”;–

Sweden: According to Section 27 of the Law on Liability and Compensation of Nuclear
Damage, the operator’s nuclear liability is unlimited for damage suffered in Denmark,Finland, Norway and Sweden, and in other states with no nuclear installations.
However, for nuclear damage suffered in states with nuclear installations other thanthose above, the amount of nuclear liability will be calculated based on reciprocity. 441

ii) Several responding countries mentioned that national legislation provides for lower
liability amounts depending on the type of nuclear installation or nuclear substanceinvolved. Examples:–

Czechia: Liability for nuclear damage would be “[…] limited in the case of (a) nuclear
installations used for power generation purposes, storage facilities and repositories ofspent nuclear fuel assigned to these installations, or nuclear materials generated byprocessing of this fuel, to the sum of CZK 8 000 million; (b) other nuclear installations
and shipments, to the sum of CZK 2 000 million”; 442–

India: National legislation provides for different amounts of nuclear liability
depending on the type of installation and the thermal power capacity. Morespecifically, Section 6(2) of the CLND Act stipulates that “the liability of the operator
in each nuclear incident shall be: (a) in respect of nuclear reactors having thermal

440 Act (No. 493/2005) amending the Nuclear Liability Act (No. 484/1972).
441 See Articles 27 and 29 of the Act on Liability and Compensation for Nuclear Incidents, 2010 (SFS
2010:950).
442 See Section 35 of the 2010 Act on Liability for Nuclear Damage, supra note 126.

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power equal to or above 10 MW, INR 1.5 billion; (b) in respect of spent fuelreprocessing plant INR 300 million; (c) in respect of research reactors having thermal
power below 10 MW, fuel cycle facilities other than spent fuel reprocessing plants
and transportation of Nuclear Materials, INR 100 million; provided that the Central
Government may review the amount of operator’s liability from time to time, andspecify, by notification, a higher amount in this sub section[…];” 443–

Netherlands: The amount of nuclear liability for nuclear power plants is
EUR 1.2 billion. However, for other type of reactors, significantly lower amounts areapplicable. 444

Amount of compensation for nuclear damage higher than the amount of the operator’s
nuclear liability or the amount provided by the international funds
The second question in this part of the questionnaire enquired about how the national legislation
addresses a situation where the amount of compensation of nuclear damage exceeds the amountof the operator’s nuclear liability or the amount provided by the international funds establishedby the Revised Brussels Supplementary Convention or the CSC. Based on the responses provided:a)b)Some responding countries reported that the state would have to step in assuming theobligation to provide funds for the compensation of nuclear damage. Examples:•

Australia: The government and the operator of Australia’s nuclear facilities, theAustralian Nuclear Science and Technology Organisation (ANSTO, an AustralianGovernment Agency), have entered into a Deed of Indemnity. 445 The Deed provides forunlimited indemnity from the Australian government for any loss or liability caused byionising radiation, including indemnity for contractors and employees;•

India: If the compensation amounts exceed the amount of the operator’s nuclear liability,
Section 7(1) of the CLND Act would be applicable. According to this Section, “[t]he Central
Government shall be liable for nuclear damage in respect of a nuclear incident: (a) where
the liability exceeds the amount of liability of an operator specified under subsection 2 ofSection 6, to the extent such liability exceeds such liability of the operator.” 446

Some responding countries reported that under the scenarios described in this part of thequestionnaire, the installation state would have to release funds with a view to compensating
victims. The state’s obligation to step in providing funds may be related to different situations.
This would be the case in the event that the operator’s nuclear liability amount wasestablished at a lower amount than the general nuclear liability amount provided for under
the national legislation. However, in many cases, it was also noted that there were noprovisions governing the scenario where the amount for compensation is higher than the
maximum amount of liability under national legislation. Examples:•

Hungary: According to Section 52 of the 1996 Act on Atomic Energy, the amount forcompensation that exceeds the operator’s nuclear liability amount under national
legislation (i.e. SDR 100 million) will be provided by the State. However, “the total amountdevoted to compensation of nuclear damage shall not be greater than SDR 300 million
even in this case”; 447•

Romania: Article 8(2) of the 2001 Law on Civil Liability for Nuclear Damage stipulates
that “[…] the liability of the operator for any one nuclear accident may be limited to less

443 See Section 6(2) of the CLND Act, supra note 159.
444 See Section 5 of the Act of 17 March 1979 Containing Rules on Liability for Damage Caused by Nuclear
Accidents, as amended (Stb. 2008, No. 509).
445 See the Deed of Indemnity between the Commonwealth of Australia and the Australian Nuclear Scienceand Technology Organisation and ANSTO Nuclear Medicine Pty Ltd, signed by the Minister for Industry,Innovation and Science on 21 April 2016.
446 See Section 7(2) of the CLND Act, supra note 159.
447 See Section 52 of the 1996 Act on Atomic Energy, supra note 158.

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than the equivalent in ROL of SDR 300 million, but not less than the equivalent in ROLof SDR 150 million, provided that the difference up to at least the equivalent in ROL of
SDR 300 million shall be made available by the State from public funds, with a view tocovering nuclear damage under the terms of this Law”; 448•c)Sweden: According to Section 42 of the Liability and Compensation of Nuclear Damage
Act, the state would provide funds for compensation up to EUR 1.2 billion, whichcorresponds to the amount of financial security required for nuclear power reactor inoperation for the production of nuclear energy under the Swedish law. There are no
relevant provisions in the event that the amount for compensation exceeds EUR 1.2 billion.

In some other responding countries, a mechanism to distribute the available funds may beestablished when it is estimated that such funds may not be sufficient to compensate all
nuclear damage. Examples:•

Belgium: Article 20 of the Law of 22 July 1985 on civil liability in the field of nuclear
energy addresses the situation where the amount of compensation for nuclear damage
exceeds the amount of the operator’s nuclear liability or the amount provided by theinternational funds established by the Revised Brussels Supplementary Convention, by
empowering the King to set up the criteria of an equitable repartition of the funds
available if those funds are not sufficient to compensate all the damage suffered; 449•

Canada: Payment of claims cannot exceed the operator’s liability amount, but if further
funds are appropriated by Parliament to provide compensation for damage arising fromthe nuclear incident, the Nuclear Claims Tribunal may award those further funds tocompensate damage. In the event that no further funds are appropriated, thegovernment may make regulations for the Nuclear Claims Tribunal to compensate
damage on a priority or pro rata basis, or exclude certain categories of damage; 450•

France: Article L. 597- 14 of the French Environmental Code provides for priority rules
for the compensation of nuclear damage should funds provided pursuant to the Brussels
Supplementary Convention appear to be insufficient; 451•

Poland: When the claims exceed the amount of compensation for nuclear damage, theoperator may establish a limited liability fund. The proceedings for establishment anddistribution of this fund are governed by relevant regulations in the Sea Code on thelimited liability for sea claims. 452 In addition, pursuant to Article 103c(3) of the 2000
Atomic Energy Act, the National Treasury guarantees compensation payment up to
SDR 300 million to the extent that compensation could not be settled by the insurers
alone, or by the insurers and the Insurance Guarantee Fund. 453

Reciprocity principle under national legislation
Answering the question related to the existence of the reciprocity principle under national
legislation (see Figure 40), approximately one fourth of the countries reported that a reciprocity
principle is provided under their national legislation. Examples:•

Germany: Reciprocity is required under Sections 25(3) and 31(2) of the Atomgesetz.
According to Section 25(3) of the Act, “[t]he provisions of Article 9 of the Paris Convention
relating to the exclusion of liability for nuclear damage caused by a nuclear incident which
is a direct consequence of acts in an armed conflict, hostilities, civil war or insurrection
shall not apply. If the nuclear damage occurs in another country, the first sentence shall

448 See Article 8(2) of the Law no. 703/2001 on civil liability for nuclear damage (Official Gazette of Romania,
Part I, no. 818 of 19 December 2001) (2001 Law on Civil Liability for Nuclear Damage).
449 See Article 20 of the 1985 Law, supra note 168.
450 See Section 68 of the NLCA, supra note 124.
451 See Article L. 597.14 of the French Environmental Code, supra note 179.
452 See Article 102(2) of the Act of 29 November 2000 on Atomic Energy, supra note 66.
453 See Article 103(3) of the 2000 Atomic Energy Act, Ibid.

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only apply insofar as such other country, at the time of the nuclear incident, has provided
for a system of compensation in relation to the Federal Republic of Germany which isequivalent as to nature, terms and amount.” Furthermore, Section 31(2) of the Act clarifies
that “[i]f the nuclear damage occurs on the territory of another State or in its maritime
zones established in accordance with international law, para. 1 [i.e. unlimited liability
amount] shall apply only insofar as, at the time of the nuclear incident, such other Statehas made provisions with the Federal Republic of Germany pursuant to para. 1, which areequivalent with regard to nature, terms and amount. Otherwise, if the nuclear damage
occurs on the territory of another State or in its maritime zones established in accordancewith international law, the liability of an operator of a nuclear installation for thecompensation of nuclear damage caused by nuclear incidents, including any additional
compensation on the basis of international conventions, shall be limited to the amountenvisaged by the other State in relation to the Federal Republic of Germany at the time of
the nuclear incident”; 454•

United Kingdom: The NIA 65 allows claims for damage from persons in “a qualifying
territory”, a definition that includes also any “relevant reciprocating territory”. 455 To be a“reciprocating territory”, the law of the country must confer benefits on a basis that
corresponds to those conferred by the Revised Paris Convention and must be based on
identical principles. The amount of compensation payable in respect of claims from areciprocating territory is capped at the limit on liability set by the law of the reciprocating
territory. 456

Figure 40. Is there a reciprocity principle provided under your national legislation?

20

7
4
YES

NO

N/A

Source: NEA.

Among the responding countries whose national legislation does not provide for areciprocity principle, Austria clarified that according to Section 23 of the AtomHG, if damage iscaused by ionising radiation and if Austrian law is applicable according to the national law of
the competent court, the plaintiff will only be able to benefit from the Austrian law insofar as
its national law would provide for compensation as well.

Priority rules under national legislation
Answering the question related to the existence of priority rules under the national legislation,
10 responding countries reported that such rules exist in their national legal order. Examples:

454 Atomgesetz, supra note 173.
455 For the definition of “qualifying territory”, see Section 26 (1B) of the NIA 65, supra note 149. For thedefinition of “reciprocating territory”, see Section 26 (1A) of NIA 65.
456 For more information, see Section 16 (1ZB) and (3) to (3E) of the NIA 65, Ibid.

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Canada: Priority rules would apply in accordance with Section 80 of the NLCA. According
to this Section, the Governor in Council may make regulations respecting thecompensation that may be awarded by the Nuclear Claims Tribunal, including regulations(a) establishing priorities for classes of damage; (b) reducing awards on a pro rata basis for
specified classes of damage and fixing a maximum award within a specified class ofdamage, for the purposes of paragraph 60(2)(b); and (c) establishing classes of damage forwhich compensation is not to be awarded; 457•

Ukraine: If the damage exceeds the liability limit insured, the order of compensation shallbe established according to the nature of damage, as follows: (i) death; (ii) categorised
disability; (iii) health disorders; (iv) property of physical persons; and (v) property of legal
entities. 458

Among the responding countries reporting that there are no priority rules under their national
legislation, the United States clarified that a prioritisation of amounts for claims may be operated.
More precisely, the Price-Anderson Act provides that, when a plan of distribution is required
because the liability limit may be exceeded, the NRC must propose a distribution plan, including
an allocation and prioritisation of appropriate amounts for personal injury claims, property
damage claims, and possible latent injury claims. The court can approve, modify or disapprove
the NRC distribution plan and prioritisation. Moreover, and while this is not an express rule forprioritisation of nuclear damage claims, this requirement suggests some prioritisation of claims
based on the type of nuclear damage contemplated in the Price-Anderson Act. 459

Figure 41. Does your national law provide for priority rules
for compensation of nuclear damage?
17

10

2
YES

NO

N/A

Source: NEA.

457 See Section 80 of the NLCA, supra note 124.
458 See Government Resolution No. 953 of 23 June 2003 “On Compulsory Insurance Of Civil Liability for
Nuclear Damage”.
459 See Section 170.o(1)(C) of the United States Atomic Energy Act of 1954, supra note 169.

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Legislation or regulation providing for emergency assistance payments to be paid, or theestablishment of a mechanism to determine such payments
In answering the question related to the existence of national legislation or regulation providing
for emergency assistance payments to be paid, or the establishment of a mechanism to determine
such payments, only a few responding countries confirmed that relevant measures for emergency
assistance payments have been adopted in the national legislation or regulation. Examples:•

Austria: Under general private law, the liable person also has to compensate expenses,
which the victim had to meet in order to avoid or reduce the damage. Furthermore,according to Section 11(3) of the AtomHG, the obligation to compensate comprises also
the costs of reasonable preventive measures taken to avoid an imminent threat ofionising radiation from a nuclear installation, nuclear material or a radionuclide; 460•

Canada: The insurers have an initial incident assessment process where case-specificevaluations may be made, enabling the urgent payment of claims. Moreover, Section 39
of the NLCA provides that, following the declaration of the establishment of a Nuclear
Claims Tribunal, and up until the tribunal is fully functional, the Minister may pay
interim financial assistance to persons who, in the Minister’s opinion, have suffereddamage as a result of the nuclear incident. The maximum amount that the Minister can
pay out in interim financial assistance cannot exceed 20% of the difference between theoperator’s liability and the total amount of compensation paid by insurers before thedeclaration for the establishment of the tribunal (i.e. 20% of what remains of theoperator’s liability); 461•

Netherlands: Advance payments may be granted by the delegated judge before a
distribution list for the compensation of claims has been established; 462•

United States: In respect of immediate payment to injured persons, the Price- Anderson
Act provides that the NRC or the insurer may make payments to claimants for the
purpose of providing “immediate assistance” following a nuclear incident and thatfunds appropriated to the NRC are to be made available for such payments. Furthermore,
the Act provides for payment of reasonable state or local government costs of aprecautionary evaluation, which would provide for the immediate needs of the affected
community in the aftermath of a nuclear incident or precautionary evacuation. 463

While the large majority of the responding countries reported that national legislation or
regulation does not provide for measures related to emergency assistance payments, several
countries clarified their answers, putting forward that relevant measures could be eventuallyadopted. Examples:•

Belgium: Even though there is no relevant provision under national legislation or
regulation, the common practice of the insurers dealing with catastrophic events would
be to make advance payments to cope with the urgent needs of the victims;•

Finland: The Act on Social Assistance (1412/1997) may apply in the case of nuclear
accidents. According to Section 1 of the Act, “social assistance is last-resort financial
assistance under social welfare, the purpose of which is to ensure a person’s or family’s
living and help them to cope independently. Social assistance is used to ensure theperson or family at least the minimum income needed for a life of human dignity”;•

Germany: In the event of a nuclear incident, the government may decide to provide
emergency assistance payments;

460 See Section 11(3) of the AtomHG, supra note 136.
461 See Section 39 of the NLCA, supra note 124.
462 See Section 30 of the Act of 17 March 1979 Containing Rules on Liability for Damage Caused by Nuclear
Accidents, as amended, (Stb. 2008, No. 509).
463 See Section 170.m and Section 11.w of the United States Atomic Energy Act, supra note 169.

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SESSION 7. AMOUNTS AVAILABLE•

Slovenia: The government has an option to adopt an Interventional Act and determine
emergency assistance payments. However, there is no common practice established inthis field.

Figure 42. Does your legislation or regulation provide for emergency assistancepayments to be paid, or establish a mechanism to determine such payments?

23

4
YES

2
NO

N/A

Source: NEA.

Session 7 – Conclusionsi.

A variety of (minimum) nuclear liability amounts under the nuclear liability conventions
were established according to the then available insurance capacity. National laws may
also take into account that funds must be sufficient to deal with consequences ofcontrolled releases of radiation (as in Canada); may provide for review mechanisms toincrease liability amounts by simple regulation; may set up a specific process in case theoverall amount of compensation exceeds the liability cap or, in the case of unlimited
liability, if the operator cannot bear the burden (which was the case in Japan);ii.

The extension of the geographical scope of application (as per the Joint Protocol, theRevised Paris Convention and the Revised Vienna Convention) and divergence of liability
amounts and financial security limits led the contracting parties to the Paris Convention
and the Brussels Supplementary Convention to introduce among themselves a nonbinding reciprocity mechanism regarding the allocation of funds beyond the operator’s
nuclear liability cap. The 2004 Joint Declaration of the contracting parties to the Paris
Convention established a reciprocity principle with regard to the parties to the Vienna
Convention, the Revised Vienna Convention and the Joint Protocol. Reciprocity rules areagainst the spirit of international conventions and may lead to practical issues if they
have to be applied to more than one country;iii.

Priority rules in favour of bodily injury and loss of life are considered by some countries asnecessary when nuclear liability is capped (and is compulsory under the Revised Vienna
Convention), but not necessary by others where the social security system takes overbodily injuries. The national law should also set up a mechanism of damage assessment
to determine whether amounts available will be sufficient, and a proper claims handlingto ensure the application of priority rules. However, priority rules might have an adverse
effect on the availability of funds to cope with the immediate relief of victims(e.g. preventive measures such as evacuation may prevent bodily injury).

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Annex 1
Programme of the Third International Workshop on the
Indemnification of Damage in the Event of a Nuclear Accident

About the workshop
Organisers
The OECD Nuclear Energy Agency (NEA) is an intergovernmental agency that facilitates co-operation
among countries with advanced nuclear technology infrastructures to seek excellence in nuclear
safety, technology, science, environment and law. The current membership of the NEA consistsof 33 countries in Europe, North and South America and the Asia-Pacific region.
The Nuclear Regulatory Authority of the Slovak Republic is a central government authority of the
Slovak Republic for nuclear regulation. It exercises state supervision over the safety of nuclear
installations (in all stages of the fuel cycle including radioactive waste management and spent
fuel management), nuclear materials and the physical protection of nuclear installations; andperforms assessments of plans for use of nuclear energy, the quality of classified equipment
and nuclear technology devices, and the commitments of the Slovak Republic arising frominternational treaties on nuclear safety of nuclear installations and nuclear materials
management.

Background
The First International Workshop on the Indemnification of Damage in the Eventof a Nuclear Accident was organised by the NEA in co-operation with the
French authorities and held in November 2001 in Paris, France. Its purpose
was to integrate third party liability and compensation issues into an
essentially technical emergency exercise (INEX-2000, a simulated nuclear
accident at the Gravelines nuclear power plant in France). The emphasisof the workshop was placed on the manner in which the Paris Convention
on Third Party Liability in the Field of Nuclear Energy and the Brussels
Convention Supplementary to the Paris Convention would apply to theindemnification of damage incurred by victims in those convention
countries as a result of a nuclear accident scenario.
The Second International Workshop on the Indemnification of Damage in the
Event of a Nuclear Accident was held in May 2005 in Bratislava, Slovak
Republic. This workshop, co-organised by the NEA and the Nuclear
Regulatory Authority of the Slovak Republic, was based on two fictitious
scenarios aimed to test the implementation of various third party
liability regimes with a special focus on an assessment of theindemnification measures that would be taken if a nuclear accident
occurred in a state party to the Vienna Convention on Civil Liability for
Nuclear Damage, and more specifically a state party to both the Vienna
Convention and the Joint Protocol Relating to the Application of theVienna Convention and the Paris Convention.

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Programme
The Third Workshop will focus on an assessment of the implementation of currently applicableinternational nuclear liability conventions in conjunction with, inter alia, non-convention states
regimes, assuming all the modernised international instruments have come into force. The
exercise will therefore assess the implementation of the following instruments: i) the Paris
Convention on Third Party Liability in the Field of Nuclear Energy and the Brussels
Supplementary Convention, both as amended by the 2004 Protocols; ii) the Vienna Convention
on Civil Liability for Nuclear Damage and the 1997 Protocol to amend the Vienna Convention;iii) the Joint Protocol relating to the application of the Vienna Convention and the Paris
Convention; and iv) the Convention on Supplementary Compensation for Nuclear Damage.
Workshop participants will be invited to discuss the legal aspects of compensating victims
having suffered nuclear damage due to a nuclear incident occurring at a nuclear installation,
which has transboundary damage. Even though experts from the public and private sectors will
be invited to speak on the different topics addressed in the programme, the workshop should
leave enough time for all the participants to contribute to the discussion, to encourage a realexchange of experience and point of views.

View of Bratislava, Slovak Republic (SEGHIZZI, CC BY-NC 2.0).

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Wednesday, 18 October 201708:30

Registration

09:00

Opening session – Welcome addresses

10:00

•

Mr William D. Magwood, IV, Director-General, Nuclear Energy Agency•

Ms Marta Žiaková, Chair of the Nuclear Regulatory Authority of the Slovak Republic and Chair of the
NEA Steering Committee for Nuclear Energy•

Ms Zora Mistríková, Manager of Legal and Corporate Affairs, Slovenské elektrárne, Slovak Republic•

Mr Juraj Chochol, Chair of the Slovak Nuclear Insurance Pool, Head of Non-life Department,
KOOPERATIVA poisťovňa, a.s.

•

Ms Ingrid Brocková, Director-General, Directorate-General for Economic Cooperation, Ministry ofForeign and European Affairs of the Slovak Republic•

Mr Anton Masár, Vice-chairman of the Board of Directors, Director of the Finances and Services
Division, JAVYS, a.s.

•

Mr Roland Dussart-Desart, Chair of the NEA Nuclear Law Committee and Head of the Legal Divisionat the Belgian FPS Economy, SMEs, Self-employed and Energy

Introduction by the moderators of the workshop:•

Mr Martin Pospíšil, Director of the Division of Legislation and Legal Affairs, Nuclear Regulatory
Authority of the Slovak Republic, and•Dr Christian Raetzke, Independent Lawyer and Consultant, CONLAR Law Firm

10:10

Break

10:30

Setting the scene: Overview of challenges of a nuclear incident at a nuclear power plant with transboundary
effects and status of ratification of the international nuclear liability conventions and national legal frameworks
Ms Ximena Vásquez-Maignan, Head of the NEA Office of Legal Counsel
Discussion session

11:25

Insurance of nuclear risks: Overview of nuclear insurance pools system
Mr Mark Tetley, insurance expert, lecturer at the NEA nuclear law educational programmes
Discussion session

12:30

Lunch

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14:00

Notification of an accident
Chair: Ms Florence Touïtou-Durand, Head of Legal Affairs, French Alternative Energies and Atomic Energy Commission(CEA) and member of the NEA Nuclear Law Committee Bureau•

International legal framework
Mr Andrea Gioia, Senior Legal Officer at the Office of Legal Affairs, International Atomic Energy Agency•

A practical approach
Commissioner Stephen G. Burns, US Nuclear Regulatory Commission

Discussion session
14:50

Evacuation process
Chair: Ms Florence Touïtou-Durand, Head of Legal Affairs, French Alternative Energies and Atomic Energy Commission(CEA) and member of the NEA Nuclear Law Committee Bureau•

Overview of the applicable frameworks
Dr Patricia Milligan, Senior Technical Advisor, Division for Emergency Preparedness and Response, Office of
Nuclear Security and Incident Response, US Nuclear Regulatory Commission and member of the NEA Working
Party on Nuclear Emergency Matters Bureau•

A practical approach
Mr Toshimitsu Homma, Senior Advisor for Emergency Preparedness and Radiation Protection Technical
Coordinator, Radiation Protection Policy Planning Division, Radiation Protection Department, Japanese Nuclear
Regulation Authority

Discussion session

15:40

Break

16:00

Determining the damage to be compensated
Chair: Mr Ben McRae, Assistant General Counsel at the US Department of Energy and member of the NEA Nuclear Law
Committee Bureau•

Evolution of the international nuclear liability conventions

1. Mr Andrea Gioia, Senior Legal Officer at the Office of Legal Affairs, International Atomic Energy Agency•

National legal systems
Ms Ximena Vásquez-Maignan, Head of the NEA Office of Legal Counsel
Prof. Monika Hinteregger, Institute of Civil Law, Foreign Private Law and Private International Law, KarlFranzens-University of Graz,•

How detailed is detailed enough?
Mr Will Morris, Underwriting Manager, Nuclear Risk Insurers Ltd.

Discussion session

180

18:00

End of Day 1

19:00

Dinner at the Bratislava Castle

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Thursday, 19 October 2017

09:00

Proving the causal link
Chair: Prof. Vanda Lamm, President of the Section of Economics and Law, Hungarian Academy of Sciences andmember of the NEA Nuclear Law Committee Bureau•

Identifying the persons entitled to claim compensation
Ms Fiona Geoffroy, Senior Legal Adviser, Électricité de France (EDF)•

Practical methods to establish the causal link
Prof. Taro Hokugo, Director for Investigation and Planning of R&D Projects, Atomic Energy Division, Japanese
Ministry of Education, Culture, Sports, Science and Technology (MEXT)
Prof. Shinsuke Toyonaga, Attorney at Law, Advisor, Nuclear Damage Compensation and Decommissioning
Facilitation Corporation, Japan

Discussion session

10:15

Break

10:30

Identifying the liable entity
Chair: Mr Konstantin Kryazhevskikh, Director Legal and Corporate, Rusatom Overseas Energo International•

Different approaches to channelling
Mr Ben McRae, Assistant General Counsel at the US Department of Energy and member of the NEA Nuclear Law
Committee Bureau•

Applying in practice the exonerations from liability provided under the nuclear liability conventions
Mr Roland Dussart-Desart, Chair of the NEA Nuclear Law Committee and Head of Legal Division at the Belgian
FPS Economy, SMEs, Self-employed and Energy•

Terrorism as one of the exonerations from nuclear liability – arguments for further discussion
Dr Petr Záruba, Independent Legal Advisor, Former Director of the Czech Nuclear Insurance Pool•Is channelling at risk?
Ms Helena Kazamaki, Senior Vice President - General Counsel Europe and France, Group Counsel Nuclear
Industry, Legal & Integrity, ABB

Discussion session

12:30

Lunch

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14:00

Claims handling
Chair: Mr Juraj Chochol, Chair of the Slovak Nuclear Insurance Pool, Head of Non-life Department, KOOPERATIVApoisťovňa, a.s.
•

Is it always the insurer?
Mr Marc Beyens, General Counsel Energy BeLux, ENGIE Electrabel•

How to manage transboundary claims?
Mr Alain Quéré, Head Nuclear Energy Risks, Swiss Re / Pool Manager, Swiss Nuclear Pool (SPN)

Discussion session

15:15

Break

15:35

Resolving disputes
Chair: Prof. Yvonne Scannell, Trinity College Dublin, judge of the European Nuclear Energy Tribunal•

Alternative Dispute Resolution mechanisms
Prof. Vanda Lamm, President of the Section of Economics and Law, Hungarian Academy of Sciences and memberof the NEA Nuclear Law Committee Bureau

Discussion session•

Identifying the competent court
Mr Omer F. Brown, II, Omer F. Brown, II Law Office

Discussion session•

Enforcement of foreign judgements
Prof. Ulrich Magnus, University of Hamburg Professor Emeritus, former judge at the Court of Appeal of the City of
Hamburg

Discussion session

182

18:00

End of Day 2

19:00

Closing reception at the Holiday Inn Bratislava

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ANNEX 1. THE PROGRAMME

Friday, 20 October 201709:00

Amounts available
Chair: Mr Roland Dussart-Desart, Chair of the NEA Nuclear Law Committee, Head of Legal Division at the Belgian FPS
Economy, SMEs, Self-employed and Energy•

The differences between international nuclear liability conventions regimes
Mr Jacques Hénault, Nuclear Liability Advisor, Uranium and Radioactive Waste Division, Natural Resources
Canada•The reciprocity principle
Mr Patrick Reyners, Former Head of the NEA Legal Affairs, Secretary General and Scientific Advisor of theInternational Nuclear Law Association•

The impact of providing priority rules
Ms Beata Sparażyńska, Chief Expert for EU and International Affairs, Nuclear Energy Department, Polish Ministryof Energy
Mr Kamil Adamczyk, Expert for Legal Affairs, Nuclear Energy Department, Polish Ministry of Energy

Discussion session

10:35

Break

11:00

Closing session: Conclusions by the Session Chairs and workshop organisers

12:00

•

Ms Florence Touïtou-Durand – Session on Notification of an accident & Evacuation process•

Mr Ben McRae – Session on Determining the damage to be compensated•Prof. Vanda Lamm – Session on Proving the causal link•

Mr Konstantin Kryazhevskikh – Session on Identifying the liable entity•

Mr Juraj Chochol – Session on Claims handling•Prof. Yvonne Scannell – Session on Resolving disputes•

Mr Roland Dussart-Desart – Session on amounts available•

Mr Martin Pospíšil, on behalf of the Nuclear Regulatory Authority of the Slovak Republic•

Ms Ximena Vásquez-Maignan, on behalf of the Nuclear Energy Agency

Workshop adjourned

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Annex 2
Questionnaire of the Third International Workshop on the
Indemnification of Damage in the Event of a Nuclear Accident

Purpose of the questionnaire
The Secretariat has developed this questionnaire to prepare the discussion sessions that willtake place during the workshop and to gather information for the preparation of thepresentations and final report on the implementation of the international nuclear liability
instruments and the national legislations from convention and non-convention States. 464
The international nuclear liability instruments that will be assessed are the following:i)the Paris Convention on Third Party Liability in the Field of Nuclear Energy (the “Paris
Convention” or “PC”) and the Brussels Supplementary Convention (the “Brussels
Supplementary Convention” or “BSC”), both as amended by the 2004 Protocols(respectively the “Revised Paris Convention” and the “Revised Brussels Supplementary
Convention”, or “RPC” and “RBSC”); 465

ii)

the Vienna Convention on Civil Liability for Nuclear Damage (the “Vienna Convention”
or “VC”);iii)

the 1997 Protocol to amend the Vienna Convention (the “Revised Vienna Convention”
or “RVC”);

iv)

the Joint Protocol relating to the application of the Vienna Convention and the Paris
Convention (the “Joint Protocol” or “JP”); andv)

the Convention on Supplementary Compensation for Nuclear Damage (the “CSC”).

While the competent courts will have the final say on the matters mentioned below, thepurpose of this questionnaire is to identify the laws and regulations applicable in each country incase a nuclear accident occurs at a nuclear power plant and to have an overview of how the legal
systems are designed and would operate, especially when there are no treaty relations between
the State in which territory the nuclear accident occurred (the “Installation State”) and the Statein which territory nuclear damage is suffered (the “Affected State”). 466 The workshop will not
address matters relating to transport of nuclear substances (or nuclear material).

464 “Convention States” means States that are parties to one or several nuclear liability conventions; and“non-convention States” means States that are not parties to any of the nuclear liability conventions.
465 The contracting parties to the Paris Convention who have adopted the relevant law(s) to implement theParis Convention, and as applicable the Brussels Supplementary Convention, as amended by the 2004
Protocol(s) are invited to fill in the questionnaire taking into account the provisions provided in theimplementing law(s). Please do not provide information based on draft laws, but only on adopted ones.
466 To “have treaty relations” means that your country (i) is a party to the same nuclear liability
convention(s) as the Affected State; or (ii) is a party to the Joint Protocol and so is the Affected State.

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ANNEX 2. THE QUESTIONNAIRE

The accident scenario
You are kindly invited to fill in this questionnaire keeping in mind the following scenario:

OPTION 1 / Your country has at least one nuclear power plant
A nuclear accident has occurred at a land-based nuclear power plant located in your country’s
territory that was caused by a grave natural disaster of an exceptional character (such as a large
earthquake or flood). Your country is the Installation State.
This nuclear accident caused nuclear damage within your national territory and in the
territory of Affected States, such as loss of life and personal injury, loss of and damage to property,
and damage to the environment. No damage was suffered in the airspace or maritime /high sea
areas.
Your country has treaty relations only with some of the Affected States.

OPTION 2 / Your country has no nuclear power plants
Your country is one of the Affected States of the accident described above.
Please confirm which option your country corresponds to [Please tick the appropriate box]☐☐

Option 1: your country is the Installation State
Option 2: your country is one of the Affected States

1. National legal regime – General informationa.

Has your country adopted a nuclear liability law? [Please tick the appropriate box]
☐Yes

☐No

[Please provide reference to the law that would apply to compensate victims of a nuclear accident
and send a copy (if possible in English) to the Secretariat for information, and potentially translationand publication in the Nuclear Law Bulletin][If your country has not adopted a nuclear liability law, please continue filling the questionnaire
adapting your responses as necessary; e.g. considering “nuclear damage” as “damage”]b.

Has your country ratified an international nuclear liability instrument? [Please tick theappropriate box(es)]☐ PC/RPC

c.

☐ VC

☐ RVC

☐ CSC

☐ JP

Under your legal system, is your country required to have an implementation law or isan international instrument directly applicable? [Please tick the appropriate box]☐☐d.

☐ BSC/RBSC

An implementing law is required
The international instrument is directly applicable

Does your country have bilateral agreements with other States that include provisions
on nuclear liability that would apply in case a nuclear accident causes transboundary
nuclear damage? [Please tick the appropriate box]
☐Yes

☐No

[If yes, please provide reference to the relevant instrument and, if possible, a copy to the Secretariat
for information)]

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ANNEX 2. THE QUESTIONNAIRE

2. Notification of an accidenta.

Is your country party to the 1986 Convention on Early Notification of a Nuclear
Accident? [Please tick the appropriate box]
☐Yes

b.

☐No

Does your country have bilateral agreements in the area of notification that would
apply in case a nuclear accident has transboundary effects? [Please tick the appropriate
box]
☐Yes

☐No

[If yes, please provide reference to the relevant instrument and, if possible, a copy to the Secretariat
for information)]c.

Does your country have a notification system and/or an emergency preparedness andresponse scheme that would apply in the case of a nuclear accident with potential
transboundary effects (whether your country is the Installation State or an AffectedState)? What are the main principles/rules of such system/scheme? [Please tick theappropriate box]
☐Yes

☐No

[If yes, please provide reference to the relevant law(s)/regulation(s) and give a brief description]d.

In accordance with your national law, what is the applicable procedure (if any) andwhat means would be used for disseminating information in the case of a nuclear
accident (whether your country is the Installation State or an Affected State)? Who will
be responsible for such dissemination? [Please specify as relevant]

3. Evacuation process
Who is responsible in your country for making decisions with respect to evacuation
measures and imposing restrictions (on harvesting, production and consumption of foodproducts, etc.) following a nuclear accident (whether your country is the Installation Stateor an Affected State)? [Please specify and provide the relevant legal/regulatory basis]

4. Determining the damage to be compensateda.

Does your national legislation provide for a definition of “nuclear damage”? [Please tick
the appropriate box]
☐Yes

☐No

If yes, does it reflect the one provided in any of the following international nuclear
liability conventions? [Please tick the appropriate box]
☐ RPC

☐ VC

☐ RVC

☐ CSC

☐ No

[If no, please provide the definition that would apply in your national legislation]

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ANNEX 2. THE QUESTIONNAIREb.

Does your national legal system provide for definition(s) of heads of damage that would
entitle victims to receive compensation that are more detailed than those provided
under the international nuclear liability convention(s)? [Please tick the appropriate box]
☐Yes

☐No

[If yes, please list the heads of damage and provide reference to the relevant law/regulation thatdefines them]c.

Does your national legal system designate an authority/commission to provide for amechanism to further specify which damage shall be compensated? 467 [Please tick theappropriate box]
☐Yes

☐No

[If yes, what are the main principles / rules of such mechanism? Please provide a brief descriptionof the mechanism]d.

In accordance with your national legislation, for which of the following types ofdamage would victims of a nuclear accident be compensated? [Please tick the appropriatebox]☐ direct damage☐ indirect damage☐ bothIf “indirect damage” is compensated under your national legislation, is there a legal or
judicial definition of that term? [Please specify]e.

Is there a system to assess the extent of compensation to be paid in order to determine
whether the nuclear damage caused by a nuclear accident on your country’s territory
appears to exceed or is likely to exceed a certain threshold, or to provide the operator,
the insurer(s), the competent court and/or the Installation State to have a roughestimate of compensation to be paid? 468 [Please tick the appropriate box]
☐Yes

☐No

[If yes, please provide a brief description]f.

Which authority is entitled to take measures of reinstatement (i.e. measures toreinstate or restore damaged or destroyed components of the environment) and/or iscompetent to approve them?
[If more than one authority, please specify how they are expected to co-ordinate]

467 For example, the Japanese Compensation Act provides that a Dispute Reconciliation Committee for
Nuclear Damage Compensation may be established to, among other functions, draft guidelines
establishing the scale of the nuclear damage to be compensated in case of a nuclear accident, as wellas other general instructions to help operators reach a voluntary settlement.
468 This system should allow the states parties to the BSC or the CSC to inform the other contracting parties
if it appears that the nuclear damage caused exceeds or is likely to exceed, the threshold that would
trigger the international tier; and may help States with priority rules and a limited nuclear liability
amount to manage payments.

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ANNEX 2. THE QUESTIONNAIRE

5. Proving the causal linka.

In accordance with your national law, who may claim compensation for nuclear
damage suffered:[Please specify hereunder](i)

within your territory?

[Installation States and Affected States, please consider natural or legal persons](ii) outside your territory?
[Installation States, please consider natural or legal persons from Affected States with which yourcountry has no treaty relations]b.

Does your national legislation provide a mechanism(s) to determine the causal link tonuclear damage so that victims avoid bearing the burden of proof before the courts(especially with regard to latent damage, such as personal injury that would appear
between 10 to 30 years after the date of the nuclear accident)? [Please tick the appropriate
box]
☐Yes

☐No

[If yes, what are the main principles/rules of such mechanism? Please specify hereunder]

6. Identifying the liable entitya.

Under your national law, who is or may be primarily liable for the nuclear damage
caused by the nuclear accident, if(i)your country is the Installation State?

(ii) your country is an Affected State?
[Please specify here above][Please take into consideration whether your country has, or does not have, treaty relations with
the Affected State or the Installations State (as appropriate) if it raises a difference in treatment]b.

Under your national law, is it possible that in the case of a nuclear accident occurring
at a nuclear power plant:(i)more than one operator may be held liable for nuclear damage? [Please tick theappropriate box]
☐Yes

☐No

(ii) another natural or legal person may be held liable in addition to or instead of a nuclear
operator (e.g. a parent company or an entity jointly holding the operating licence of thenuclear power plant where the nuclear accident occurred)? [Please tick the appropriate box]
☐Yes

☐No

[Please specify further if you have ticked any of the “Yes” boxes above]

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ANNEX 2. THE QUESTIONNAIRE

c.

Under your national law, may the liable operator be:[Please tick the appropriate box(es)]
(i)
☐
☐
☐

exempt from paying compensation (or part of it) with respect to:nuclear damage suffered by a person whose own gross negligence wholly or partly
caused the nuclear damage;nuclear damage suffered by a person who acted or omitted to act with the intent tocause damage;any other scenarios? [If yes, please specify](ii) exonerated from liability in case of:
☐

☐
☐
☐
☐

☐

armed conflict;hostilities;
civil war;
insurrection;
grave natural disaster of an exceptional character;any other scenarios? [If yes, please specify]

In cases (i) and (ii) above, who will be compensating the victims? [Please specify]d.

Under your national law, is the liable operator entitled to have a right of recourse:[Please tick the appropriate box]☐☐☐

against the individual (natural person) who acted or omitted to act with the intent tocause damage;if expressly provided by contract;
any other scenario? [If yes, please specify]

7. Financial securitiesa.

Under your national legislation, what are the option(s) available for the operator tocover its nuclear liability?
[Please tick the appropriate box(es)]
☐

☐

☐
☐
☐
☐

☐
☐

190

insurance;
mutuals;
State insurance;
State re-insurance;
State guarantee;
self-insurance;
corporate guarantee;
captive insurance (i.e. insurance company owned by the operator’s company orcompany group);

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ANNEX 2. THE QUESTIONNAIRE☐☐

private bank alternatives (bonds, letter of credit, etc.);other type of financial security [Please specify hereunder such other types]

If the operator is State owned, is it still legally compelled to have insurance or otherfinancial security to cover its nuclear liability? [Please tick the appropriate box]
☐Yes

☐No

[If yes, please specify under which conditions]b.

Does your country have a national nuclear insurance pool? [Please tick the appropriate
box]
☐Yes

☐No

[If yes, please provide reference]c.

Does your country have a national nuclear operators’ pooling arrangement? [Please tick
the appropriate box]
☐Yes

☐No

[If yes, please provide an overview of the arrangement (e.g. whether it is compulsory for all nuclear
operators, how the contributions to the pool are calculated, etc.)]

8. Claims handlinga.

Does your country have a claims handling procedure set up? [Please tick the appropriate
box]
☐Yes

☐No

[If yes, please provide reference to the relevant legislation and a brief description of the procedure]b.

In accordance with your national legislation, who is (are) responsible for handlingcompensation claims for nuclear damage:[Please tick the appropriate box(es)]
☐
☐

☐

☐

c.

insurers / insurance pool;
public authorities;
operator;other entities [Please specify]

In case different entities are providing financial security(ies) to the liable operator, arethere any principles/rules to co-ordinate between these different financial security
providers? [Please tick the appropriate box]
☐Yes

☐No

[If yes, what are the main principles/rules applicable?]

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ANNEX 2. THE QUESTIONNAIRE

d.

Under your national law, against whom can the victims directly claim compensation?
[Please tick the appropriate box(es)]
☐
☐

☐
☐

the operator;
the insurer;
any financial security provider;other options? [Please specify]e.

What is the applicable time limitation for bringing compensation claims? [Please specify]f.

Under your national law, is there a possibility of grouping compensation claims (“classactions”)? [Please tick the appropriate box(es)]
☐Yes

☐No

[If yes, what are the main principles/rules of such a mechanism?]
May your State (whether the Installation State or an Affected State) organise a classaction? 469
☐Yes

☐No

[If yes, what are the main principles/rules of such a mechanism?]g.

Is there any specific process already set up in your country to handle transboundary
claims? [Please tick the appropriate box]
☐Yes

☐No

[If yes, what are the main principles/rules of such a mechanism?]h.

Does your country have a bilateral (or multilateral) agreement with neighbouring
countries that addresses transboundary claims handling issues? [Please tick theappropriate box]
☐Yes

☐No

[If yes, please provide reference to the relevant instrument]

469 For example, see Article 13(g) of the RPC, which provides that “any State may bring an action on behalfof persons who have suffered nuclear damage, who are nationals of that State or have their domicile orresidence in its territory, and who have consented thereto; […]”.

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ANNEX 2. THE QUESTIONNAIRE

9. Resolving disputesa.

Does your national law provide for an alternative dispute resolution (ADR)
mechanism(s) in case the operator and victims disagree on the extent of thecompensation to be paid for nuclear damage, as a first step before going to court? [Pleasetick the appropriate box]
☐Yes

☐No

[If yes, please provide reference to the relevant law/regulation and describe the type of ADR that isavailable]b.

If your country is an Installation State, which court will have jurisdiction under yournational law to rule on compensation for nuclear damage? [Please consider, among others,
the situation where your country has no treaty relations with some Affected States]c.

If you are an Affected State and do not have treaty relations with the Installation State,
will your courts have jurisdiction under your national law to rule on compensation for
nuclear damage? [Please tick the appropriate box]
☐Yes

☐No

[If yes, please specify]d.

If you are an Installation State and do not have treaty relations with an Affected State,
will decisions by the Affected State’s competent courts (according to their respective
national law) be enforceable in your country under your national law? [Please tick theappropriate box]
☐Yes

☐No

[In either case, please specify]

10. Amounts availablea.

Under your national law, what is the operator’s nuclear liability amount? [Please specify]b.

How does your national law address the situation where the amount of compensation
for nuclear damage exceeds the amount of the operator’s nuclear liability or theamount provided by the international funds established by the RBSC or the CSC? [Please
specify as relevant]c.

Is there any reciprocity principle provided for in your national legislation? [Please tick
the appropriate box]
☐Yes

☐No

[If yes, please explain how such reciprocity principle would apply when compensating foreign
victims]

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ANNEX 2. THE QUESTIONNAIREd.

Does your national law provide for priority rules for compensation of nuclear
damage? 470 [Please tick the appropriate box]
☐Yes

☐No

[If yes, what are the main principles/rules of such mechanism? For instance, does your national
legislation provide for funds to be set aside to compensate damage that manifests itself in themedium and long term? If not, will the State provide funds to compensate these heads of damage?]e.

Does your legislation or regulation provide for emergency assistance payments to be
paid, or establish a mechanism to determine such payments? [Please tick the appropriate
box]
☐Yes

☐No

[If yes, what are the main principles? Which are the entities that will pay the emergency assistancepayments (e.g. the liable operator, insurers, the State, etc.) and who will receive such payments(e.g. the victims directly, the operator, the insurers, etc.? In the absence of legislation or regulation
providing for such payments, would such payments take place anyway based on common
practice)?]

470 Please note that Article VIII of the consolidated version of the RVC provides that “where in respect ofclaims brought against the operator the damage to be compensated under [the RVC] exceeds, or is likely
to exceed, [the operator’s nuclear liability amount], priority in the distribution of the compensation
shall be given to claims in respect of loss of life or personal injury”.

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ANNEX 3. LIST OF PARTICIPANTS

Annex 3
List of participants

Australia

Ms Karyn LAXALE
Government and Strategic Programmes Advisor
Nuclear Security, Government and International Affairs
Australian Nuclear Science and Technology Organisation (ANSTO)

Austria

H.E. Maria Zeneida ANGARA COLLINSON
Ambassador
Embassy of the Philippines
Dr Peter BAUMANN
President – European Nuclear Energy Tribunal (ENET)
Mr Sulpicio M. CONFIADO
Deputy Chief of Mission & Consul General
Deputy Permanent Representative
Embassy of the Philippines
Mr Zdenko DLHOŠ
Network Partner Specialist HUB EMEA
Ms Sandra GEUPEL
Joint Convention and WASSC Coordinator
Waste and Environmental Safety Section
Division of Radiation, Transport and Waste Safety
Department of Nuclear Safety and Security
International Atomic Energy Agency (IAEA)
Vienna International Centre
Mr Andrea GIOIA
Senior Legal Officer
Nuclear and Treaty Law Section
Office of Legal Affairs
International Atomic Energy Agency (IAEA)
Prof. Monika HINTEREGGER
Professor
Institute of Civil law, Foreign Private Law and Private International Law
University of Graz (Karl-Franzens-Universität)
Graz, Austria
Mr Robert Joachim MUNER
Civil Servant
Directorate I/6, General Coordination of Nuclear Affairs
Federal Ministry of Agriculture, Forestry,
Environment and Water Management

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ANNEX 3. LIST OF PARTICIPANTS

Belgium

Mr Marc BEYENSGeneral Counsel Energy BeLux
ENGIE Electrabel
Mr Roland DUSSART-DESART
Chair of the NEA Nuclear Law Committee
Head of Legal Division
FPS Economy, SMEs, Self-employed and Energy
Ms Maria LAGUNA
Senior Underwriter
European Liability Insurance for the Nuclear Industry – ELINIMr Rudolf LENNARTZ
Legal Advisor
Joint Research Center (JRC)
Legal Advice Unit
European Commission
Mr Marc ROOTHOOFT
General Manager
SYBAN
Mr Danny VAN WELKENHUYZENManaging Director
European Liability Insurance for the Nuclear Industry – ELINI
Ms Godelieve VANDEPUTTE
Senior Legal Counsel Energy BeLux
ENGIE Electrabel
Mr Luc WITTOCK
Senior Advisor
SYBAN

CanadaMs Colleen DEMERCHANT
General Manager
Nuclear Insurance Association of Canada
Mr Jacques HÉNAULT
Nuclear Liability Advisor
Uranium and Radioactive Waste Division
Natural Resources Canada
Mr Douglas McINTYRE
Vice-President, Legal & Insurance
Canadian Nuclear Laboratories Ltd.

China

196

Dr CHEN Gang
General Legal Counsel
China Nuclear Power Engineering Co., Ltd.

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Czechia

Ms Andrea JANKOVIČOVÁ
LawyerLegal Division
State Office for Nuclear Safety (SÚJB)Mr Eduard KLOBOUČEK
LawyerLegal Division
State Office for Nuclear Safety (SÚJB)Mr Štěpán KOCHÁNEK
Head of Legal Division
State Office for Nuclear Safety (SÚJB)Mr Karel KÜNZEL
LawyerLegal Division
State Office for Nuclear Safety (SÚJB)Mr Jiří ORTMAN
Risk & Insurance Manager – ČEZ GroupČEZ, a.s.
Mr Miloš POSÁD
Director
Czech Nuclear Insurance Pool Officec/o Česká pojišťovna a.s.
Mr Jan PRÁŠIL
Senior EU Regulatory Affairs Specialist
European Affairs Department
ČEZ, a.s.
Ms Blanka TŮMOVÁ
Deputy Director
Czech Nuclear Insurance Pool Officec/o Česká pojišťovna a.s.
Dr Petr ZÁRUBA
Independent Legal Advisor
Former Director of the Czech Nuclear Insurance Pool
Ms Tereza ŽILKOVÁ
MA Student
Czech Technical University in Prague
Faculty of Nuclear Sciences and Physical Engineering

Finland

Mr Caj WECKSTRÖMManaging Director
NNI Nordic Nuclear Insurers

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FranceMs Laurence CHABANNE-POUZYNIN
General Counsel Public, Nuclear, Environmental &Real Estate Law Department
New AREVA Holding
Ms Fiona GEOFFROY
Senior Legal Adviser
Energies Law Department
Électricité de France (EDF)
Ms Helena KAZAMAKI
Senior Vice President - General Counsel Europe & FranceGroup Counsel Nuclear Industry
Legal & Integrity
ABB
Mr Marc LÉGER
Senior Legal Advisor to the Chairman
French Alternative Energies and Atomic Energy Commission (CEA)Mr Karoly Tamas OLAJOS
Legal Officer - Onsite
Legal Service Unit
ITER Organization
Mr Ranjitsinh U PARMAR
Counsellor (Atomic Energy)
Embassy of India in France
Ms Olivia PASSERIEUXLegal Advisor
Legal Affairs – Nuclear and Environment Law
French Alternative Energies and Atomic Energy Commission (CEA)Mr Patrick REYNERS
Former Head of the NEA Legal Affairs
Secretary General and Scientific Advisor of the International Nuclear Law
Association
Ms Florence TOUÏTOU-DURAND
Head of Legal Affairs
French Alternative Energies and Atomic Energy Commission (CEA)Mr Gilles TREMBLEY
Managing Director
ASSURATOME

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ANNEX 3. LIST OF PARTICIPANTS

Germany

Mr Tobias ECKHOFF
Senior Counsel
Siemens AG
Legal and Compliance
Project Business
Turnkey Projects & Electrification
LC PJ MO TPE
Mr Justin FRANKEN
Junior-Underwriter
German Nuclear Insurance Pool
Mr Thomas Christian HELLING-JUNGHANS
Ministry Official
Federal Ministry for the Environment, Nature Conservation, Building andNuclear Safety
Working Group RS/1 - Nuclear Legislation
Prof. Ulrich MAGNUS
Professor Emeritus
Former judge at the Court of Appeal of the City of Hamburg
Affiliate of the Hamburg Max Planck Institute of Foreign and Private
International Law
University of Hamburg
Prof. Norbert PELZER
Consultant
University of Göttingen
Dr Christian RAETZKE
Independent Lawyer and Consultant
CONLAR Law Firm
Ms Anna Klara SCHMIDDER-RICCHIUTO
Business Economist
German Nuclear Insurance Pool
Dr Siegbert SCHNEIDER
HeadWorking Group RS I 1Federal Ministry for the Environment, Nature
Conservation Building and Nuclear Safety
Ms Alexandra VAN KALLEVEEN
Scientific Officer
Joint Research Centre (JRC)
Directorate for Nuclear Safety and Security
European Commission

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Hungary

Ms Orsolya FAZEKAS
Postgraduate student
University of GyőrDr Eszter KAMOCSAY-BERTAManaging Partner
Attorney at law
KCG Partners Law Firm
Dr Kolos KATONA
Senior Legal Advisor, Deputy Chief Legal Counsel
Legal Department
MVM Paks Nuclear Power Plant
Prof. Vanda LAMM
Professor Emerita, Széchenyi István University
President of the Section of Economics and Law
Hungarian Academy of Sciences
Mr Attila OLÁHManager
Hungarian Nuclear Insurance Pool
Allianz Hungaria Ins. Co. Ltd.
Dr Lívia PUCH
Legal Counsel
MVM Paks Nuclear Power Plant
Dr Judit SILYE
EURATOM Advisor
Department of International Relations, EURATOM and Legal Affairs
Hungarian Atomic Energy Authority
Dr Ádám TAKÁCS
Legal Associate
MVM Paks Nuclear Power Plant
Dr Amaryllis TAKÁCS
Legal Counsel
Legal and Compliance Department
Allianz Hungária Zrt.

India

Mr Riju Raj Singh JAMWAL
LawyerMember of the Supreme Court Bar Association of India
Mr Ramandeep Singh SIDHU
Ph.D. research scholar
Centre for Environmental Law
School of Legal Studies and GovernanceCentral University of Punjab

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ANNEX 3. LIST OF PARTICIPANTS

Ireland

Mr Edmund CARROLL
Advisory Counsel
Office of the Attorney General
Prof. Yvonne SCANNELL
Judge – European Nuclear Energy Tribunal (ENET)
Professor Emerita at Trinity College Dublin
Consultant at Arthur Cox

Japan

Prof. Taro HOKUGO
Director for Investigation and Planning of R&D Projects
Atomic Energy Division
Ministry of Education, Culture, Sports, Science and Technology (MEXT)
Mr Toshimitsu HOMMA
Senior Adviser for Emergency Preparedness and Radiation Protection
Technical Coordinator
Radiation Protection Policy Planning Division
Radiation Protection Department
Nuclear Regulation Authority
Mr Shinsuke TOYONAGA
Attorney at Law
Advisor, Nuclear Damage Compensation and Decommissioning
Facilitation Corporation (NDF)

Luxembourg

Mr Christian ATTARD
Legal Officer
Directorate-General for Energy
Directorate ENER D.1 EURATOM coordination, legal matters andinternational relations
European Commission

Netherlands

Mr Idde OOMES
Policy Advisor
Financial Markets Policy Directorate
Treasury
Ministry of FinanceNigeria

Mr Abimbola ODEYEMIManaging Partner
Fortis LP

Philippines

Mr Marlyn B. ALONTE
Representative, Lone District, Biñan Laguna
Mr Arnel ANTONIO
Senior Science Research Specialist
Energy Policy and Planning Bureau
Department of Energy
Mr Rodolfo CASTRO FARIÑAS
Majority Leader
Representative, 1st District, Ilocos Norte

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Philippines

Mr Donato D. MARCOS
Undersecretary/Head of Nuclear Energy Program Implementing
Organization (NEPIO)
Department of Energy
Mr Earl Jan R. NERA
Senior Science Research Specialist
Energy Resource Development Bureau
Department of Energy
Lord Allan Jay QUINTO VELASCO
Chair, Committee on Energy,House of Representative Lone District of Marinduque
Joint Congressional Power Commission

PolandMr Kamil ADAMCZYK
Expert for Legal Affairs
Nuclear Energy Department
Ministry of Energy
Ms Iwona MATUJEWICZ
Inspector
National Atomic Energy Agency (PAA)
Ms Beata SPARAŻYŃSKA
Chief Expert for EU and International Affairs
Nuclear Energy Department
Ministry of Energy
Ms Maciej TUDEK
Inspector
National Atomic Energy Agency (PAA)Mr Tomasz WINNICKI
LawyerLegal and Regulatory Department
PGE EJ 1 sp. z o. o.

Romania

Mr Vlad-Ionut CHIRIPUS
Head of Legal Advisory Department
Legal and Corporate Affairs Division
S.N. Nuclearelectrica S.A.
Mr Mircea DIMA
Control and Risk Management Director
S.N. Nuclearelectrica S.A.
Mr Alexandru HAVRISHead of Projects Management Department
S.N. Nuclearelectrica S.A.

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RussianFederation

Ms Natalia ARTAMONOVA
Head of International Law Department
Law Division
Atomstroyexport (ASE)
Mr Konstantin KRYAZHEVSKIKH
Director Legal and Corporate
JSC “Rusatom Overseas”
Ms Natalia MAKSIMOVA
Senior Specialist, InsuranceState Atomic Energy Corporation ROSATOM
Ms Maria ROMANOVA
Senior Head of Direction, Legal
Techsnabexport (TENEX)
Ms Yuliya V. TSEGELNIK
Senior Insurance Manager
Rosatom Energy International

Singapore

Ms Nivedita S
Research Associate, Nuclear Law and Policy
Centre for International Law & Energy Studies InstituteNational University of Singapore

SlovakRepublic

Mr Adrián BARGER
PartnerBarger Prekop, Attorneys
Mr Emil BÉDI
Prinicipal State Counselor
Department of International Relations in the Energy Sector
Ministry of Economy of the Slovak Republic
Mr Juraj BEŇOInspector
Division of Emergency Preparedness and Informatic
Nuclear Regulatory Authority of the Slovak Republic (ÚJD)
Ms Michaela BIHARYOVÁ
Deputy Head of Legal Department
Nuclear Regulatory Authority of the Slovak Republic (ÚJD)
Mr Peter BOLLARDTLawyer – Independent Expert
Ms Ingrid BROCKOVÁ
Director-General for Economic Cooperation
Ministry of Foreign and European Affairs of the Slovak Republic
Mr Juraj CHOCHOL
Chair of the Slovak National Insurance Pool
Head of Non-life Department
KOOPERATIVA poisťovňa, a.s.

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SlovakRepublic

Ms Zuzana ČUNDERLÍKOVA
Senior Underwriter
Large & Special Risk
Allianz - Slovak Insurance Company
Mr Boris DARU
Inspector
Division of Emergency Preparedness and Informatic
Nuclear Regulatory Authority of the Slovak Republic (ÚJD)
Mr Miroslav DETKO
Master of Laws
Legal and Compliance Department
Allianz - Slovak Insurance Company
Mr Radovan FIGURA
General Director
MSIG Insurance Europe AG
Branch office Slovakia
Mr Martin FILA
Underwriter
Claims Management / Risk Management
HDI Versicherung AG
Mr Vladimír JARUNEKHead of Planning and Controlling Department
JAVYS – Decommissioning Company
Dr Ján KLOCOKHead of Legal Department
VUJE, a.s.
Mr Branislav KOREŇ
Inspector
Division of Emergency Preparedness and Informatic
Nuclear Regulatory Authority of the Slovak Republic (ÚJD)
Mr Rastislav LÁSKA
Director of Underwriting Department
Generali Poisťovňa, a.s.
Mr Martin MACÁŠEK
Nuclear and Decommissioning Manager
JAVYS – Decommissioning Company
Mr Anton MASAR
Vice-chairman of the Board of Directors
Director of the Finances and Services Division
JAVYS – Decommissioning Company
Ms Radomira MIHÁLIKOVÁ
Nuclear Safety Technician – Nuclear Equipment
JAVYS – Decommissioning Company

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SlovakRepublic

Ms Zora MISTRÍKOVÁ
Manager of Legal and Corporate Affairs
Slovenské elektrárne
Slovak Republic
Ms Martina ONDRASOVA
Head of Legal Department for the Slovak Republic
ABB
Mr Peter PAVLOVIČ
Director
Division of International Relations and European Affairs
Nuclear Regulatory Authority of the Slovak Republic (ÚJD)
Ms Beata PETRISKOVÁ
Referent Senior
Slovak Nuclear Insurance Pool
Allianz - Slovak Insurance Company
Ms Zuzana PIŠTEKOVÁ
General Secretary of the NRA Civil Service Office
Division of Legislation and Legal Affairs
Nuclear Regulatory Authority of the Slovak Republic (ÚJD)
Mr Martin POSPÍŠIL
Director
Division of Legislation and Legal Affairs
Nuclear Regulatory Authority of the Slovak Republic (ÚJD)
Mr Peter PROFANT
Procurement Technician
Department of Procurement
JAVYS – Decommissioning Company
Ms Jarmila RÁCOVÁ
General State Advisor
Division of International Relations
Nuclear Regulatory Authority of the Slovak Republic (ÚJD)
Ms Zuzana REPOVÁ
Director
Office of the Slovak Nuclear Insurance Pool c/o
Allianz - Slovak Insurance Company
Slovak Republic
Ms Mária ŠEBESTOVÁ
Senior Advisor
Department of Environmental Risks and Biosafety
Ministry of Environment of the Slovak Republic
Ms Andrea SIKOROVÁ
Director
Reinsurance Department
Allianz - Slovak Insurance Company

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SlovakRepublic

Ms Zuzana ŠÍPOŠOVÁ
Insurance Risks Specialist
Slovenské elektrárne, a.s.
Mr Dušan SLUGEŇ
Vice-Chairperson
Board of Administrators
National Nuclear Fund
Ms Gabriela ŠPAČKOVÁ
LawyerDivision of Legislation & Legal Affairs
Nuclear Regulatory Authority of the Slovak Republic (ÚJD)
Mr Roman STRAŽOVEC
International Projects Manager
JAVYS – Decommissioning Company
Mr Michal UHRÍN
Claims Management/Risk Management
MSIG Insurance Europe AG
Branch office Slovakia
Ms Miriam VACHOVÁ
Principal State Counselor
Division of International Relations and European Affairs
Nuclear Regulatory Authority of the Slovak Republic (ÚJD)
Ms Gabriela VALANCOVÁ
Management Engineer – Interface with Regulatory Authorities andLicencing
JAVYS – Decommissioning Company
Mr Dušan ZEMÁNEK
Director of Product Development non-life Insurance
Union poisťovňa, a.s.
Ms Dagmar ZEMANOVÁ
Director, Chairperson’s office
Nuclear Regulatory Authority of the Slovak Republic (ÚJD)
Dr Marta ŽIAKOVÁ
Chair of the NEA Steering Committee for Nuclear Energy
Chair of the Nuclear Regulatory Authority of the Slovak Republic (ÚJD)
Ms Ema WOODWARD
Political/Economic Officer
US Embassy Bratislava

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Slovenia

Mr Danilo ANTONČIČ
Director
Nuclear Insurance and Reinsurance Pool
Jedrski Pool GIZ
Ms Katarina KASNAR
Jurist/Lawyer
Adviser at the General Affairs Office
Slovenian Nuclear Safety Administration

South Africa

Mr Vusi MALEBANA
Chief Legal Advisor
NECSA

Spain

Mr Francisco Javier GARCÍA RUIZ
Legal Adviser
Legal Department
Nuclear Safety Council (CSN)Mr Fernando PALMA FRANCO
LawyerDirección de Asesoría Jurídica y
Secretaría del Consejo
ENUSA Industrias Avanzadas, S.A.
Mr Juan RINCÓN ARÉVALOGeneral Manager
Aseguradores de Riesgos Nucleares, A.E.I.
Mr Francisco Maria SANABRIA PÉREZ
Legal Department
ENUSA Industrias Avanzadas, S.A.

Sweden

Mr Georg PYKTechnical Director
NNI Nordic Nuclear Insurers

Switzerland

Mr Alain QUÉRÉHead Nuclear Energy Risks, Swiss Re
Pool Manager, Swiss Nuclear Pool (SPN)
Swiss Reinsurance Company Ltd

Türkiye

Mr Alper TAN
Co-ordinator
Turkish Insurance Association – TSB
Ms Burcu YARDIM
Assistant Expert
Nuclear Energy Project Implementation Department
Ministry of Energy and Natural Resources

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UkraineMr Oleksandr BABENKOManaging Director
Ukrainian Nuclear Insurance Pool (UNIP)
Ms Liliya KUKHARCHUKActing Head, Legal Support Section
SS “Atomprojectengineering”
NNEGC Energoatom
Mr Volodymyr ZAKHAROVGeneral Director
Ukrainian Nuclear Insurance Pool

United ArabEmirates

Ms Amani AL SHAMSILegal Affairs Officer
ENEC
Legal Department

UnitedKingdom

Ms Tania ARORA
Senior Associate Lawyer
Corporate - Energy Mining and Infrastructure
Baker & McKenzie LLPMr Andrew CARR
General Counsel
Sellafield Ltd
Ms Michelle GARNER
Lawyer, Nuclear and Non-proliferation
Civil Nuclear and Resilience Directorate
Department for Business, Energy & Industrial Strategy
Ms Zemfira GEJUSOVA
General Manager
Northcourt Limited
Mr Will MORRIS
Underwriter Manager
Nuclear Risk Insurers Ltd
Ms Tracy MURRAY
Senior Solicitor – Environment & Regulation
Sellafield Ltd
Dr Kate PARSONSHead of Nuclear Liability Policy
Civil Nuclear and Resilience Directorate
Department for Business, Energy and Industrial Strategy
Ms Helen PETERS
Legal Director
Pinsent Masons LLPMr Mark POPPLEWELLManaging Director
Nuclear Risk Insurers Ltd

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ANNEX 3. LIST OF PARTICIPANTS

UnitedKingdom

Mr Victor RAE-REEVES
Partner
Clyde & Co LLPMr Mark RICHARDS
Chief Counsel, International Operations
CH2M Hill United Kingdom
Ms Kate SMITH
Head of Regulatory and Planning Law
Sellafield Ltd
Mr Matthew TAYLOR
Solicitor
Governance and Legal Affairs
EDF Energy, Barnett Way
Mr Mark G. TETLEY
Insurance Expert
Lecturer at NEA educational programmes
Mr Ian TRUMAN
Legal Director
Burges Salmon LLP
Ms Kate WARD
Senior Policy Adviser
Civil Nuclear and Resilience Directorate
Department for Business, Energy and Industrial Strategy
Ms Kate WILSON
Senior Associate
Clyde & Co LLP

UnitedStatesOmer F. BROWN, II
Omer F. Brown, II Law Office
Mr Stephen G. BURNS
Commissioner
US Nuclear Regulatory Commission
Ms Grace KIM
Senior Attorney
Division of Legal Counsel
Office of the General Counsel
US Nuclear Regulatory Commission
Mr Ben McRAE
Assistant General Counsel for Nuclear Programs
Office of the General Counsel
US Department of Energy
Mr Barry MILLER
Sr. International Relations Officer
Office of International Programs
US Nuclear Regulatory Commission

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UnitedStatesDr Patricia MILLIGAN
Senior Technical Advisor
Division of Emergency Preparedness and Response
Office of Nuclear Security and Incident Response
US Nuclear Regulatory Commission
Mr Brett RINI
Sr. International Affairs Officer
Office of Nuclear Regulatory Research
US Nuclear Regulatory Commission
Mr Jason ZORN
Commissioner’s Chief of Staff
US Nuclear Regulatory Commission

NEA

Mr William D. MAGWOOD, IV
Director-General
OECD Nuclear Energy Agency (NEA)
Ms Ximena VÁSQUEZ-MAIGNAN
Head, Office of Legal Counsel
OECD Nuclear Energy Agency (NEA)
Ms Elena DE BOISSIEU
Legal Adviser, Office of Legal Counsel
OECD Nuclear Energy Agency (NEA)
Ms Natalia GMUCOVA
Trainee, Office of Legal Counsel
OECD Nuclear Energy Agency (NEA)
Mr Kaan KUZEYLI
Junior Legal Adviser, Office of Legal Counsel
OECD Nuclear Energy Agency (NEA)

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NEA PUBLICATIONS AND INFORMATION

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offers free downloads of hundreds of technical and policy-oriented reports. The professional
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OECD/NEA PUBLISHING, 2 rue André-Pascal, 75775 PARIS CEDEX 16

Third International Workshop

on the Indemnification of Damage
in the Event of a Nuclear Accident

The Third International Workshop on the Indemnification of Damage in the Event of a Nuclear Accident
was held in Bratislava, Slovak Republic in October 2017. It was organised in co-operation with the
Nuclear Regulatory Authority of the Slovak Republic. The workshop offered a unique opportunity
to explore the practical application of international nuclear liability instruments and the potential
consequences with regard to non-convention states in the case of a nuclear incident. Discussions
focused on the legal aspects of compensating victims who suffered nuclear damage due to a nuclear
incident that occurred at a land-based nuclear power plant and caused transboundary damage.
The workshop was attended by more than 170 participants from 33 countries (of residence), including
non-NEA member countries such as China, Croatia, India, Nigeria, Philippines, Singapore, South Africa,
Ukraine and the United Arab Emirates. Participants came from public and private sectors representing
governments, regulatory authorities, academia, the judiciary, operators, suppliers, law firms, theEuropean Commission and the International Atomic Energy Agency.

Nuclear Energy Agency (NEA)
46, quai Alphonse Le Gallo
92100 Boulogne-Billancourt, France
Tel.: +33 1 73 21 28 19
nea@oecd-nea.org www.oecd-nea.org

NEA No. 7429