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Liability for Nuclear Damages Under Japanese Law: Key Legal Problems Arising from the Fukushima Daiichi Nuclear Accident

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Asia-Pacific Disaster Management

Abstract

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 author expresses his sincerest gratitude to Luke Nottage, Thomas Shaw and Melanie Trezise for their friendly help and suggestions; he is also indebted to Sydney Law School for having made this research possible through the award of a Parsons Visiting Fellowship. All references in footnotes are in chronological order, currency conversions as of 31 January 2013.

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Notes

  1. 1.

    For a more comprehensive study in German (with an English abstract), including Japanese legal terminology and sources, as well as an economic analysis, full references to all statutes, precedents and legal opinions mentioned here, see Weitzdörfer (2011). The chapter partially summarises that analysis and adds updated information, drawing upon new sources in Western languages since 2011.

  2. 2.

    Law No. 147 of 1961; English translation available at: http://www.oecd-nea.org/law/legislation/japan-docs/Japan-Nuclear-Damage-Compensation-Act.pdf (translation as of 2009).

  3. 3.

    The respective conventions are available at: http://www.oecd-nea.org/law/legal-documents.html#agreements.

  4. 4.

    For a recent and detailed comparison of the Japanese to the international nuclear liability regimes, see Pelzer (2011b); Sato (2012), pp. 2–14; Vásquez-Maignan (2012). See further, Cook (2013), in this volume.

  5. 5.

    Cabinet Order No. 44 of 1962; English translation available at: http://www.oecd-nea.org/law/legislation/japan-docs/Japan-Cabinet-Order-No%2044.pdf (translation as of 2009).

  6. 6.

    Law No. 148 of 1961; English translation available at: http://www.oecd-nea.org/law/legislation/japan-docs/Japan-Nuclear%20Liability-Indemnification-Contract-Law.pdf (translation as of 2009).

  7. 7.

    Cabinet Order No. 45 of 1962; English translation available at: http://www.oecd-nea.org/law/legislation/japan-docs/Japan-Cabinet-Order-No%20201.pdf (translation as of 2009).

  8. 8.

    For a discussion on more specialised statutes, for example concerning labour safety standards and insurance for nuclear power plant staff and contract workers, state liability or disaster relief measures for evacuees, see generally Weitzdörfer (2011). For accompanying legislation on the regulatory bodies, power plant licensing, reactor safety as well as the relevant environmental and energy law, see also Yokouchi (2011), pp. 126–128 and Pardieck (2013).

  9. 9.

    Law No. 168 of 1955.

  10. 10.

    Laws No. 98 of 1896 and No. 9 of 1898; English translation available at: http://www.japaneselawtranslation.go.jp/law/detail/?ft=2&re=02&dn=1&yo=&kn[]=%E3%81%BF&_x=2&_y=44&ky=&page=9 and http://www.japaneselawtranslation.go.jp/law/detail/?ft=2&re=02&dn=1&yo=&kn[]=%E3%81%BF&_x=2&_y=44&ky=&page=10.

  11. 11.

    For initial overviews, see OECD, NEA Legal Affairs Section (2011); Sato (2012), pp. 15–22; and broadly and very comprehensively, Faure and Liu (2012), pp. 170–205. A recent update is given by Nomura et al. (2012).

  12. 12.

    For details on the rules on financial security, on the respective amounts and on state aid to operators see, Weitzdörfer (2011), pp. 73–75.

  13. 13.

    The burden-sharing of nuclear liability is shown in Fig. 5.2, below.

  14. 14.

    Nihon Bengoshi Rengo-kai (2011), as of 1 June 2011.

  15. 15.

    There are countless studies on the widely-perceived sense of low litigiousness in Japan. However, on the (relatively high) number of suits in the field of nuclear law which had been heard before the Fukushima disasters, see Weitzdörfer (2011), pp. 62–63, 84, 86, and further Ramseyer (2012), pp. 9–14 (all page numbers referring to the online version).

  16. 16.

    See generally, Foote (2013); Idei (2012); also compare Rheuben (2013), in this volume.

  17. 17.

    Law No. 6 of 2012. For details, see Foote (2013).

  18. 18.

    Reproduction of public press material by TEPCO (2013a), available in regularly updated versions online.

  19. 19.

    Author’s estimations, based on the still-increasing numbers previously published above in 2012 and 2013.

  20. 20.

    Compare especially the hastily-enacted Act on Emergency Measures Relating to Damage Caused by the 2011 Nuclear Accident, Law No. 91 of 2011; English translation: OECD and NEA Legal Affairs Section (2012), pp. 237–242.

  21. 21.

    For details, see Weitzdörfer (2011), pp. 101, 107–108. For a recent summary of the progress in compensating victims, see Matsuura (2012).

  22. 22.

    On the scope of the Act, see generally Yokouchi (2011).

  23. 23.

    Such as by the Tokyo High Court on 21 September 2005, the Tokyo District Court on 27 February 2006 and 19 April 2006, and the Mito District Court on 27 February 2008; in total, 11 cases were brought to court, the remaining 99 % were handled using ADR.

  24. 24.

    For a summary, see Weitzdörfer (2011), pp. 83–86. For a description of three of the cases see Yokouchi (2011), pp. 143–144.

  25. 25.

    Guideline and appendices available at: http://www.mext.go.jp/a_menu/anzenkakuho/baisho/1304756.htm (in Japanese); for a first full English translation of seven guidelines and their respective supplements, see OECD, NEA Legal Affairs Section (2012), pp. 89–184.

  26. 26.

    For an overview of the first guidelines and the committee that enacted them, see Weitzdörfer (2011), pp. 64–65, 83–87, 106–108. A detailed early description followed by Yokouchi (2011), pp. 133–134, 135–137.

  27. 27.

    The doctrinal and practical issues of causation in nuclear liability cases are examined comprehensively by Yokouchi (2011), pp. 134–135, 138–151.

  28. 28.

    For a case of a nuclear power plant worker exposed to radiation involving questions of causation, see Japanese Supreme Court on 17 December 1991, in: Rodo Hanrei 600 (1992), p. 6.

  29. 29.

    Reproduction from TEPCO (2012a), p. 2.

  30. 30.

    Reproduction from TEPCO (2012b), p. 2.

  31. 31.

    The (im)possibility of an accumulative application of these and many other special laws, including agricultural, fisheries and labour law, is summarised in Weitzdörfer (2011), pp. 87–93.

  32. 32.

    The draft English translation is available at: http://josen.env.go.jp/en/framework/pdf/special_act.pdf?20130118.

  33. 33.

    For a more detailed discussion with further references, see Weitzdörfer (2011), pp. 76–78; Yokouchi (2011) and Ramseyer (2012) briefly raise the question but leave the answer open. Recently, Osaka (2012) elaborately advocated against the applicability of the exemption clause, also suggesting that the manufacturer of the plant, General Electrics, may be liable under US law.

  34. 34.

    Press conference on the afternoon of 25 March 2011, available as a video at: http://www.kantei.go.jp/jp/tyoukanpress/201103/25_p.html; an English transcription is available at: http://www.kantei.go.jp/foreign/incident/110325_1611.html.

  35. 35.

    Statement on NHK Television on 30 April 2011.

  36. 36.

    Translated from Weitzdörfer (2011), p. 75.

  37. 37.

    This is also the observation of Yokouchi (2011), p. 129. For an attempt to summarise the political relationship of TEPCO and the Government in terms of nuclear indemnification, see Weitzdörfer (2011), pp. 102–108.

  38. 38.

    One of the rare examples in a Western language is Kabashima (2013). Kabashima extends explicit criticism concerning the rule of law and separation of powers, with respect to the compensation guidelines (at p. 18): ‘…the government is trying to resolve the dispute by applying the Guideline which it drew up by itself. Insofar as it too is liable for the accident, it is dubious whether the Guideline is fair to all parties. In addition, it is also problematic for the Guideline to play a role as a special act of tort liability for the on-going cases, even though it is being applied retroactively. It is therefore not legitimate with regards to procedural justice’. Kabashima also repeats the scandalous fact that several members of the government-appointed panels had earlier received research grants from TEPCO.

  39. 39.

    The Japanese Constitution of 3 November 1946.

  40. 40.

    Ramseyer (2012), pp. 2–3 provides a compelling summary of the ignored seismic history around the plant site.

  41. 41.

    Law No. 125 of 1947.

  42. 42.

    For more details and further references, see Weitzdörfer (2011), pp. 94–100; and Rheuben (2013), in this volume.

  43. 43.

    This question is also raised, yet left open, by Yokouchi (2011), p. 128.

  44. 44.

    The political reasons why the Government did not decide to compensate or financially support victims directly, instead of fuelling funds into TEPCO, both when enacting and when applying the liability regime, can only be speculated upon. Rheuben (2013), in this volume argues that the schemes in force were adopted to shield the Government from the burden and the shame of possible lawsuits under the State Liability Law.

  45. 45.

    Law No. 94 of 2011. English translation with orders of enforcements and so on in OECD, NEA Legal Affairs Section (2012), pp. 185–236.

  46. 46.

    Translated from Weitzdörfer (2011), p. 81. For updates see OECD, NEA Legal Affairs Section (2012), p. 235.

  47. 47.

    For an updated summary on the Government’s support of TEPCO, see Takahashi (2012).

  48. 48.

    As of 22 February 2013: TEPCO (2013b), p. 1. Note how this ever-growing sum demonstrates the clear inadequacy of the mandatory insurance of only ¥120 billion and that TEPCO’s payouts, according to its information in Table 5.1, lag behind the funds it has received. For an economic analysis of the legal rescue of TEPCO, see generally Morita (2013).

  49. 49.

    For an explanation of the Japanese wording of the statute, see Yokouchi (2011), p. 136, footnote 58.

  50. 50.

    On this question, see Weitzdörfer (2011), pp. 108–111. Morita (2013) also points out that the financial institutions in question benefit from the scheme, for TEPCO’s bankruptcy would mean the loss of their (many) unsecured loans to the utility.

  51. 51.

    See particularly the pin sharp analysis of nuclear liability versus corporate law by Ramseyer (2012), pp. 17–23; and Faure and Liu (2012), pp. 203–225.

  52. 52.

    See also Pelzer (2011a); Faure and Liu (2012), pp. 202–205, 212–218; and Sato (2012), pp. 22–24.

  53. 53.

    Referring to the four traditional aims of tort law, most prominently described by Williams (1951). Although Glanville Williams paid relatively little attention to the notion of appeasement, for Japanese society and particularly in the case at hand, it should not be dismissed without further consideration.

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Weitzdörfer, J. (2014). Liability for Nuclear Damages Under Japanese Law: Key Legal Problems Arising from the Fukushima Daiichi Nuclear Accident. In: Butt, S., Nasu, H., Nottage, L. (eds) Asia-Pacific Disaster Management. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-39768-4_5

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