Channelling of Nuclear Third Party Liability towards the Operator: Is it Sustainable in a Developing Nuclear World or is there a Need for Liability of Nuclear Architects and Engineers?

Abstract

World-wide, almost all legal regimes transfer third party liability for nuclear accidents exclusively towards the operator of a nuclear plant. This is called “channelling” and implies that the operator of a nuclear installation is exclusively liable for damages, either legally or economically. Irrespective of their possible contribution, none of the other players – suppliers of nuclear material or fuel, transporters of nuclear material or fuel to and from the nuclear power plant, subcontractors, test operators, consultants, nuclear plant designers and constructors – bears any responsibility towards third parties in the event of a nuclear accident. Channelling is an oddity of nuclear liability law. It deviates from the nuts and bolts of ordinary tort law provided for by both civil law and common law systems. The present paper will not consider all above-listed players that are exempted from liability following the channelling principle, but will focus on designers and constructors.1 Indeed, the question will be examined whether, in this day and age, liability should still be exclusively channelled to the operator when a nuclear accident is partly or entirely due to design or construction faults or deficiencies. The paper will, firstly, analyse the origin and raison d’eÃtre of the principle of channelling liability towards the nuclear power plant operator, both as regards the so-called “legal” and “economic” channelling regimes. It will then proceed to review the sustainability of “lchannelling” in a “mature” nuclear sector, which currently faces massive technological challenges at the dawn of a nuclear renaissance. In doing so, this author will examine to which extent the most popular form of channelling – legal channelling – is sustainable in the light of recent developments in the nuclear sector or whether it would be advisable, on the contrary, to introduce liability of designers and constructors (architects-engineers) of nuclear power plants. Special attention will be paid to both the fact that nuclear energy is not an embryonic industry anymore, and that new reactor technologies are likely to alter the involvement of designers and constructors. To accurately assess the question from a pragmatic, industry-oriented perspective, the paper considers the outcome of a consultation held on the issue with, on the one hand, nuclear power plant operators and, on the other hand, nuclear designers and constructors. Due to the limited responses to the survey, it has not been possible to draw any statistically relevant conclusions. However, the opinions of the consulted stakeholders – who all requested anonymity – have been inserted, where appropriate, throughout the body of the present paper. One should keep in mind that these inputs are not of a representative, but merely indicative nature.