Search

This chapter considers the response of the Japanese Government to the Fukushima nuclear power disaster in assisting Tokyo Electric Power Company (TEPCO) with handling claims for compensation. It argues that in setting guidelines for claims, establishing a government alternative dispute resolution (ADR) body to deal with disputes, and creating a convoluted funding structure that has led to the effective nationalisation of TEPCO, the Government has intervened significantly in what are essentially private disputes governed by the Nuclear Damages Act. This is contrasted with the response of the New South Wales (NSW) Government to mass tort claims for asbestos exposure in Australia, whereby it established an independent court to hear claims, and funded the primary defendant through a long-term finance facility without any powers of control. It is argued that this difference in approach can be attributed to the respective standards imposed by courts in both countries relating to state liability for regulatory failure. Whereas Australian courts have imposed a high threshold establishing the liability of public authorities, Japanese courts have acknowledged liability more readily, creating an incentive for the Japanese Government to divert potential claims against it from the courts.

This chapter gives a critical overview of highly topical legal problems inherent to the largest liability case in Japanese history. Starting with a survey of the relevant legal provisions, it draws upon precedents, Japanese scholarship, as well as the guidelines prepared by a dispute resolution panel established by the Government. Amongst other issues, the chapter elaborates who is liable by law and who is actually carrying the enormous financial burden, and also investigates causes of action beyond nuclear liability law, such as state liability. Furthermore, it discusses which damages are covered at all, such as loss of profits due to rumours of nuclear radiation. The Government has had to resolve pressing issues of legal uncertainty, including whether the earthquake could lead to an exclusion of liability, how claims of more than 1.5 million plaintiffs could be handled in a swift and just manner, and how financial resources are to be found once the funds of the nuclear operator have been exhausted. In short, an extra-judicial procedure has been created, involving government-regulated compensation payments. With respect to substantive law, legal solutions have been determined by politics to a considerable extent. This entails notable, if not alarming, problems with regards to the rule of law in Japan.

The United Nations Convention on the Law of the Sea and other international agreements, in particular those concerning the protection of the marine environment against oil pollution, provide for an individual liability of polluters. There has been an increasing trend to hold individuals or corporations liable for oil pollution damage. No such trend exists in respect of State liability, neither subsidiary in cases where the individual polluter does not provide compensation, nor in cases where environmental damage results from the violation of a State’s own non-compliance of international environmental obligations. In respect of the latter general international law on state responsibility is of relevance.1

Liability of the public authorities to compensate an individual for any loss or injury caused to him may arise in several situations. It may arise for a breach of contract, a tort, expropriation or quasi-expropriation of property, sacrifice by an individual in the public interest (Aufopferung) or under any other special situation contemplated in a legislation. The following discussion is, however, confined to the tortious liability of the public authorities and other cases of liability will be mentioned only so far as they explain or supplement the tortious liability.