civil liability for nuclear damage act 2010 05nov2014

Civil Liability for Nuclear Damage Act 2010

5 November 2014Khaitan & Co.

Advocates, Solicitors, Notaries, Patent & Trademark Attorneys

Copyright © Khaitan & Co 2014 | 2

NUCLEAR LIABILITY REGIME (CONTD.)

India signed the Convention on Supplementary Compensation (CSC): October 2010

• Conformity of national law with Annex required• Being a signatory to the Convention on Nuclear Safety 1994

(India already a signatory)

Pre-requisites for ratification

• Presidential Assent given in September 2010• Rules framed in November 2011

Civil Liability for Nuclear Damage Act 2010

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INTERNATIONAL NUCLEAR LIABILITY REGIME

(CONTD.)

3

• ‘nuclear damage’• caused by a ‘nuclear incident’• occurring in a ‘nuclear installation’• or occurring in the course of transport of ‘nuclear

material’ to or from such installation

Liability for what?

• Loss of life or personal injury• loss of or damage to property• resulting from radioactive properties of ‘nuclear fuel’

or ‘radioactive products or waste’ in a nuclear installation

• resulting from radioactive properties of ‘nuclear fuel’ or ‘radioactive products or waste’ of nuclear material coming from, originating in or sent to such installation

What is nuclear

damage?



(CONTD.)

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Exclusive liability of operator

Strict liability of operator

Liability limited in amount

Liability limited in

time

Authorities with

exclusive jurisdiction


CIVIL LIABILITY FOR NUCLEAR DAMAGE ACT 2010 (CONTD.)

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• The liability of the operator of the nuclear installation shall be strict and based on the principle of no-fault liability




(CONTD.)

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time

Authorities with




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• Rs 15 billion in respect of nuclear reactors of 10MW or more

• Rs 3 billion in respect of spent fuel reprocessing plants

• Rs 1 billion in respect of research reactors of less than 10MW, fuel cycle facilities etc

Operator liability

limited in amount

• Maximum amount of liability in respect of each nuclear incident shall be the rupee equivalent of SDR 300 million

• Liability exceeding operator’s liability to the account of Central Government

Overall cap on liability amount



(CONTD.)

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time

Authorities with




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• Claim must be made within specified period from date of nuclear incident: • 10 years in case of damage to

property• 20 years in case of personal injury

• However subject to the above, claim must be lodged within 3 years from date of knowledge of nuclear damage

Operator liability

limited in time



(CONTD.)

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time

Authorities with




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• Claims Commissioners

• Nuclear Damage Claims Commission

• Commissioner/Commission will be vested with powers as a civil court in matters relating to evidence

• Jurisdiction of other courts (except High Courts and Supreme Court exercising writ jurisdiction) barred; no injunction to be granted by any court or authority in respect of any action taken in pursuance of power conferred under the Act

Exclusive jurisdiction

of authorities under the

Act



(CONTD.)

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time

Authorities with




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• No civil court (except the Supreme Court and the High Courts) to have jurisdiction to entertain any proceedings in respect of any matter which the Commissioner or the Commission is empowered to adjudicate under the Act (section 35)

• Provisions of the Act will be in addition to – and not in derogation of – any other law then in force and they do not exempt the operator from any proceeding which might be instituted apart from the Act against it – tortious claims

Act a complete code on

liability for nuclear

damage?



(CONTD.)

14





time

Authorities with



OPERATOR’S RIGHT OF RECOURSE

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• If such right is expressly provided in the contract; or

• If nuclear incident resulted as a consequence of act of supplier or his employee including supply of equipment or material with patent or latent defects or sub-standard services; or

• Act or omission done with intent to cause nuclear damage

Operator’s right of

recourse


OPERATOR’S RIGHT OF RECOURSE (CONTD.)

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• The case of the tail wagging the dog? Rules vs. Act

• Supplier will be liable for an amount equal to the contract value or operator’s liability, whichever is less; however this limitation available only if right of recourse specifically provided for in the contract

• If right of recourse not specified in the contract, suppliers’ liability will extend to the entire amount of operator’s liability

• Recourse available for the period of 5 years or product liability period specified in contract, whichever is longer

Do the Rules

provide relief?


OPERATOR’S RIGHT OF RECOURSE (CONTD.)

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• Supplier could possibly limit liability under contract

• The same limitation could also apply to claims under tort made by the operator – however this is not free from doubt

• Supplier could still be liable to claims under torts from third parties i.e. affected persons

Supplier’s ability to

limit liability?


POINTS TO PONDER

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Limited utility of CSC provisions: in case of inconsistency in obligations under international conventions and domestic law, the latter will prevail

Proceedings under the Act may not be the only remedy available

Suppliers could be subjected to unlimited liability in amount

Suppliers’ liability over long periods of time

Long and tedious legal proceedings hinging on questions of fact

Insurance coverage will be dearer since coverage for same risks will be sought by operator as well as suppliers

THANK YOU

civil liability for nuclear damage act 2010 05nov2014

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