41. See Senate Bill No. 921 "Radiogenic Cancer Compensation Act of 1983". 42. The case is cited at note 31 supra. 43. In Roberts and Nunnamaker, the plaintiff attempted to rebut the probability of causation evidence offered by the defense by offering expert mathematical evidence attacking the mathematical validity of the probability of causation formula. 44. See note 41 supra. 45. Senate Bill No. 921 (cited in note 41 supra) would permit recovery to anyone having a probability of causation greater than ten percent. REVIEW OF NUCLEAR LIABILITY COMPENSATION SYSTEMS APPLICABLE TO REACTORS OUTSIDE THE UNITED STATES Colin McIntosh Legal Affairs OECD Nuclear Energy Agency November 1983 Copyright© 1984 by American Nuclear Insurers Report to American Nuclear Insurers and REVIEW OF NUCLEAR LIABILITY COMPENSATION SYSTEMS APPLICABLE TO REACTORS OUTSIDE THE UNITED STATES I. By Colin McIntosh' OECD Nuclear Energy Agency INTRODUCTION While United States legislation on idemnification of victims of nuclear incidents differs considerably from that of Western European countries, it nonetheless has many points in common. As regards their differences, it should be noted that the Price-Anderson amendment of 1957 was the first law ever adopted in this field and U.S. legislation, as opposed to the laws on the subject passed subsequently in Europe, did not depart substantially from the traditional rules governing third party liability. Furthermore, the indemnification amounts were very much higher than the amounts fixed in Europe for the nuclear operators' liability although this is no longer true with respect to all European countries. The points of similarity are that the United States system of legislation is such that its practical effects and aims are the same as those of European laws, both for the nuclear operator and for victims, i.e. to ensure for victims, safe, simple and equitable conditions of indemnification without burdening the nuclear industry with a load incompatible with the economic rationale for developing nuclear power. Finally, despite the very different context in which the United States legislation on the one hand, and the European nuclear Conventions on the other, were adopted, they had a similar objective which was the harmonization of the rules for compensation of nuclear damage in the States of the Union for the former and in the European countries for the latter. Purpose of Paper These preliminary observations give rise to the thought that a brief presentation of systems of third party liability and indemnification for nuclear damage in foreign (essentially European) countries, with emphasis on nuclear liability insurance and government indemnity systems, might provide those concerned in the United States with some points of comparison and reflection in the context of an assessment of their national system. Presentation One characteristic of the nuclear liability system in Europe is that it was worked out at the international level before being implemented by domestic laws. Indeed, when nuclear energy was still at the experimental development stage in this region, most countries felt the need to cover the potential risks raised by the peaceful uses of nuclear energy by a specific and uniform system of liability. This concern resulted in the adoption of several international Conventions, the first being the Paris Convention on Third Party Liability in the Field of Nuclear Energy of 1960 ("The Paris Convention") which was later supplemented by a Convention signed in 1963 in Brussels ("The Brussels Supplementary Convention"). These two Conventions, and in particular the Paris Convention, constituted the model on which most national legislation in Europe was based and their provisions will therefore be considered in an International Section before the situation in eight selected countries is looked at.2 2 The countries selected are Canada, France, the Federal Republic of Germany, Japan, Spain, Sweden, Switzerland and the United Kingdom, and may be considered as falling broadly into three categories. France, the Federal Republic of Germnay, Spain, Sweden and the United Kingdom are Contracting Parties of both the Paris and Brussels Supplementary Conventions. Switzerland is a Signatory of these Conventions but has not ratified them, and the systems in Canada and Japan have been developed more or less independently of the Conventions. II. INTERNATIONAL SECTION The Paris Convention on Third Party Liability in the Field of Nuclear Energy was signed on the 29th July 1960 by sixteen European countries. The Paris Convention came into force on 1st April 1968 and is at present applied in fourteen countries.3 The essential purpose of the Convention is to ensure adequate and equitable compensation for persons who suffer damage caused by nuclear incidents whilst taking the necessary steps to ensure that the development of the production and uses of nuclear energy for peaceful purposes is not thereby hindered. This is achieved by channelling all liability, irrespective of fault, on to the operator of the nuclear installation where the incident occurred while at the same time limiting this liability both in amount and in time. Such a system avoids the difficulty for victims of proving who was at fault in relation to any given incident-something that could be almost impossible to establish. Furthermore, as specified in the Expose' des Motifs of the Convention, the channelling of liability to operators means that others associated with the operation of nuclear installations-e.g. suppliers of services or equipment-being protected from liability are relieved of a heavy financial burden which otherwise might endanger the development of the nuclear industry. Finally, if the operator's liability were unlimited (as it would be under the ordinary rules of law), financial protection would be impossible to obtain, at least on the private insurance market. By limiting the operator's liability in the amount (and in time), the Paris Convention system makes it possible for operators to ensure that sufficient funds are available to cover their liability, and indeed requires them to do so. It might also be argued that this limitation in a sense compensates operators for accepting exclusive, no-fault liability. These are the underlying principles of the Convention but it is important to note that the system established by the Paris Convention is a flexible one leaving many options open to national legislators. Following the adoption of the Paris Convention, a number of its signatories felt it necessary to improve the system of liability and financial security applying to nuclear activities by means of a system of additional compensation to deal with the consequences of a catastrophic nuclear incident. It was against this background that thirteen of the sixteen Signatories to the Paris Convention adopted on 31st January 1963, the Brussels Supplementary Convention which came into force on 4th December 1974, and is at present applied in ten countries. Under this Convention, governments undertook to provide funds for the compensation of nuclear damage in excess of the amount already covered by the financial security provided by the operator under the Paris Convention up to a maximum of 120 million European Monetary Agreement (EMA) units of account.* Protocols amending these two Conventions were signed in November 1982 but have not yet come into force. Their essential purpose is in the first place, with respect to both Conventions, to replace the EMA unit of account, the value of which, due to intervening changes in the international monetary system, was giving rise to |