Mass Tort in Japanese Nuclear Incidents East China University of Political Science and Law Shanghai November 28, 2012 Andrea Ortolani, PhD Centre for Comparative and Transnational Law – Torino The University of Tokyo 1 sabato 1 dicembre 2012
Outline 1. The facts of March 2011 2. Nuclear damage compensation in Japan 3. The incident at JCO 4. The incident at Fukushima-1 5. Current state of compensation 6. Lessons learned (?) 2 sabato 1 dicembre 2012
Radioactive materials escaped from cores Contamination of air (I-131, Cs-134, Cs-137, other) Direct contamination of sea water Indirect contamination of sea water (fallout, rivers, etc) Contamination of: Agricultural lands, rivers and sea Urban waste, sewage and sewage sludge Environment Fukushima Daiichi The Facts 6 sabato 1 dicembre 2012
The incident at JCO Tokaimura The Facts Uncontrolled chain reaction Irradiation of workers at the plant (2 workers died) Limited irradiation of air and areas around the plant Several precautionary measures of Mayor and Prefecture 11 sabato 1 dicembre 2012
The incident at JCO Tokaimura Liabilities Civil liability Guidelines of Nuclear Damage Dispute Reconciliation Committee - Most claims solved through mediation - Some claims went to court Criminal liability Criminal charges against JCO, executives and surviving worker All defendants guilty - light sentences 12 sabato 1 dicembre 2012
The incident at JCO Tokaimura Liabilities Civil liability Guidelines of Nuclear Damage Dispute Reconciliation Committee - Personal injuries - Medical examination expenses - Evacuation expenses - Examination expenses for property - Loss of value for contaminated property - Loss of income - Business damage (actual damage and damage for rumour) - Mental suffering (in principle, only when recognized) 98% of claims compensated in a year 15.4 billion yen paid out in compensation 13 sabato 1 dicembre 2012
The incident at JCO Tokaimura Civil suits & Lessons learned Civil suits “Successful” claimants: compensation won in Court is less than what granted on the basis of guidelines Unsuccessful claimants: failure to prove damages Lessons learned Very low financial security (compensation 15x insured sum) Litigation control through mediation 14 sabato 1 dicembre 2012
Compensation for Fukushima-1 Legal Issues Liability of TEPCO “A grave natural disaster of an exceptional character”? Jurisdiction Fukushima City, Tokyo Causation Vague standards (to be evaluated in practice) State Liability - For surveillance through NISA? - For emergency response? 16 sabato 1 dicembre 2012
ݪࢠྗଛഛঈฆ૪৹ࠪձ Decree 99/2011 Pres. Yoshihisa Nomi (Gakushuin Univ.) ✴ Guidelines Provisional guidelines 4/28, 5/31 Interim guidelines 8/5 + 12/6, 3/16 economic damages + non-economic ✴ Guidelines March 16, 2012: - ¥ 6.000.000 for areas contaminated 5+years - 100% compensation for land and real estate. - Other zones: compensation according to evacuation time Compensation for Fukushima-1 Current Situation 17 sabato 1 dicembre 2012
Compensation for Fukushima-1 Compensation Guidelines 1) Damages caused by governmental order to evacuate; 2) Damages caused by governmental designation of the sea and sky hazard zone; 3) Damages caused by governmental request to restrict shipment of agricultural and sea products; 4) Damage caused by other governmental orders; 5) Reputation damage (the so-called “fuhyo higai”); 6) Indirect damage (including business damage and lost income); 7) Damage caused by exposure to radiation; 8) Coordination between donations to victims; property damage suffered by local governments. 18 sabato 1 dicembre 2012
Claim Preparation of documents Filing the claim Accepting the claim Mediation Mediation offer Center does not accept Center does not accept Total or partial agreement Total or partial disagreement Total or partial disagreement Mediation contract Court Procedure restarts Compensation for Fukushima-1 Dispute Settlement Center 19 sabato 1 dicembre 2012
ݪࢠྗଛഛঈࢧԉػߏ Established on September 12, 2011 Ex. Director: Takehiko Sugiyama ✴ Capital: ¥14 billion Government 50% + 12 EPCO 50% ✴ Aim: obtaining funds to pay the compensation Bonds issued for 5,000 billion ✴ http://www.ndf.go.jp/index.html Compensation for Fukushima-1 Nuclear Damage Liability Facilitation Fund 20 sabato 1 dicembre 2012
Compensation claims - Ordinary procedure: Deterrents (mandatory conciliation?) JCO precedents: no gains for plaintiffs Derivative suit of shareholders - Biggest legal suit in Japanese history Lessons Learned (?) Japanese Aversion to Litigation? 22 sabato 1 dicembre 2012
The role of the Bar Associations - Active voice in public debate - Free legal assistance for compensation claims - National network for suits against nuclear plants Lessons Learned (?) Japanese Aversion to Litigation? 23 sabato 1 dicembre 2012
Lessons Learned (?) Need of Framework for Disaster Response Problems of disaster preparedness 1. No comprehensive, realistic plan at governmental/local level 2. Lack of training 3. Excessive reliance on the Self-Defence Force 4. Lack of a framework for communication among public authorities and between authorities and volunteers/NPO Recommendations 1. A comprehensive “all-hazard” planning 2. Improvement of training 26 sabato 1 dicembre 2012
Lessons Learned (?) New Framework for Compensation Hard problems to solve 1. Unprecedented damages Huge compensation with substantial burden for the economy of the Country 2. Long-lasting damages: problem of evaluation 3. Problem of assessing the causal connection 27 sabato 1 dicembre 2012
Thank You ! @ortospace il diritto cʼè, ma non si vede http://dirittogiapponese.wordpress.com/ search: “diritto giapponese blog” [email protected] 29 sabato 1 dicembre 2012
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