On May 27, 2015, Mindfirst will be hosting a Future of Nuclear Seminar on Nuclear Liability Developments in India. The speaker at the event will be Els Reynaers, a Partner at the law firm of M.V. Kini & Co. and President of the International Nuclear Law Association.
In her talk on the recent Indo-US political breakthrough on nuclear liability, Ms. Reynaers will explore the legal and insurance-related developments in India’s nuclear sector, and what those changes mean for Canadian nuclear vendors, regulators, and suppliers.
In the run up to this event, we bring you a three-part special report on India’s nuclear law regime. In Part 1, we explore the history of India’s nuclear law and liability regime. Next week, in Part 2, we discuss the recent negotiations and tentative agreement reached between the US and India in early 2015. In Part 3, to be published the week of Ms. Reynaers’ talk, we will explore the opportunities and challenges ahead for India’s nuclear energy sector.
We hope that this report will give you a clearer understanding not only of the recent Indo-US agreement, but the unique evolution of the nuclear law regime in India. We hope you can join us on May 27 to discuss these issues in person.
Part I: The History of India’s Nuclear Law and Liability Regime
As Gruendel and Reynaers pointed out in their 2012 article, India is not well endowed with natural energy resources. In response to this lack of reliable and local reserves, India plans to have 20,000 MW of nuclear capacity by 2020, with plans to derive 25% of its electricity (approximately 3000 GW) from nulcear by 2050.
Up until the passage of the Civil Liability for Nuclear Damage Act, 2010 (2010 Liability Act), to be discussed below, nuclear activity in India was governed by the Atomic Energy Act of 1948 and the Atomic Energy Act of 1962. Together, these Acts made the Central Government of India the sole legal operator of nuclear facilities in the country. The legislation did, however, leave room for private sector companies to hold a minority share in the ownership and operation of nuclear facilities under joint ventures.
Another key detail – highlighted by Yash Mannully in an important 2012 article on issues in Indian nulcear liability law – is that the Acts gave power to the Government to make rules that deliniate
the [operator’s] liability in respect of any hurt to any person or any damage to property caused by ionising radiations or any radioactive contamination either at the plant under license or in the surrounding area.
However, despite provisions that enable the Government to regulate liability, little was done in terms of legislating until the last decade. Additionally, up until the last decade, India’s 20 nulcear power plants operated at reduced capacity, given that India was excluded from international nuclear trade under the 1970 Nuclear Non-Proliferation Treaty. However, with a 2008 agreement by the Nuclear Supplier Group to grant a waiver to India, the country was able to import nuclear technology and sign bilateral agreements on civilian nuclear energy technology with countries such as Canada, France, the Republic of Korea, the United Kingdom, and the United States.
As of 2008 then, India’s nuclear energy sector was primed to grow at an incredible rate. The country, then home to over 1.1 billion people, was given a new opportunity to fulfill it’s nulcear energy ambitions, in new partnerships with suppliers from around the world. As Gruendel and Reynaers note, these partnerships were not for “turn-key”, full construction services, but rather for specific contracts for reactor technologies and related components. Given that these contracts are between the suppliers and India’s state nuclear operator (the Nuclear Power Corporation of India Limited (NPCIL)) the challenge of establishing a clear liability regime for the industry, and the scope of the liability itself, remained.
The 2010 Liability Act was the first concerted effort by the government to outline the scope of liability for the nuclear sector in India. In essence, the Act, in conjunction with subsequent ammendments, expanded the scope of liability beyond the operator – in this case, the NPCIL – to the suppliers of technology used in the civilian nuclear energy sector. By affirming strict and no-fault liability on the operator, the Liability Act was in keeping with the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy and the 1963 Vienna Convention on Civil Liability for Nuclear Damage.
However, where the 2010 Liability Act differed significantly was in its granting of special rights of legal recourse to the operators in the event of an incident. Under s 17(b), the operator of the nuclear installation “shall have the right of recourse where:
the nuclear incident has resulted as a consequence of an act of supplier or his employee, which includes supply of equipment or material with patent or latent defects or sub-standard services.”
As Gruendel and Reynaers note in their 2012 article, linked above, the original language of 17(b) targeted situations where “the nuclear incident has resulted from the willful act or gross negligence on the part of the supplier,” but such language was dropped when experts agreed that establishing mens rea (or “guilty mind”) would be too difficult and would potentially weaken the government’s power, through their role as operator, to rely on legal recourse for damages against suppliers.
There are additional issues in the 2010 Liability Act that are important – including limitation periods and the complex interaction between international and domestic law – but they are beyond the scope of this brief review.
The key point is that up until the early 2015 Indo-US agreement – which established an insurance pool and clearer liabilility limits for both operators and suppliers in India – suppliers were subject to special legal liability in the event of a nuclear incident. The establishment of this statutory tort – which coexists with common law tort liability – thus drove a wedge between suppliers and India’s nuclear industry. The 2008 agreement to allow bilateral trade was thus at a standstill – the country was open for business, but there was a massive catch. In addition, while the law was extensive, it did not necessarily clarify many of the issues it was designed to solve.
As a result, reform was crucial to any opening of trade between foreign suppliers and India’s NPCIL. Next week, in Part 2 of this series, we explore the efforts to reform and clarify the 2010 Liability Act and the recent Indo-US agreement on nuclear liability and technological development.