Hi Karuna, Thanks for the response. I'm not too concerned about Greenpaece stand per se. That's evidently for the Greenpeace to decide. But as regards the issue, the point, to my mind, is rather simple and straightforward.
*Unless there is a singular defined point who'd be held responsible in case of an "incident",* *what would be the plight of the poor and hapless victim(s)*? *That's the crux*, from my point of view. The relevant data/info would remain out of the reach. Even when the access is allowed (through some court intervention or whatever), it'd hardly make any sense without a high degree of technical expertise (theoretical knowledge + actual experience). And, if through some miracles, the access is granted and and some sense is made of the complex piles of data accessed, how on earth s/he/they will fix/pinpoint/apportion responsibilities without getting into interminable litigations? The playing field between the operator and suppliers (of equipment, materials and services) would, however, be far more levelled. And, the operator, having an unrestricted right of recourse will be pretty much equal to the task. Able to deploy a battery of star lawyers, if required. The info will be at its disposal only. And would be able to absorb the delay in decision without numbing difficulties. All these, to be sure, relate to "civil liability" only. As regards quick disbursals, as per the current draft, the AERB is to notify an incident, and the Claims Commission to decide/award on receipt of claims. The CNDP suggestions include points concerning them. (We've repeatedly circulated that.) But not "quick disbursal" per se. It'd be nice if you offer your ideas on specific improvements that should be suggested. There could be further actions on these. BTW, have you also a detailed list of specific suggestions? It'd be nice if you share. Sukla On 5 July 2010 14:51, Karuna Raina <[email protected]> wrote: > Dear Sadanand, > > I would not want us to change the reccomendation, its not because we are > not flexible but because what we are proposing makes the whole system of > responsibility tighter. > > We arrived at this position not by just research on our part, but also > after holding rigrous discussions with lawyers and also with international > liability experts . Two of which(Antony Frogatt and Simon Carroll) have > worked on official IAEA proccedings on Liability Consultations. > > Let me explain in detail: > > Much of law and practice around the world regarding nuclear liability and > compensation can be traced back to the development of commercial nuclear > power in the USA in the 1950s. Initially, the private sector was only > willing to become involved in nuclear R&D if the US Atomic Energy Commission > would include “hold harmless” clauses in the applicable contracts, thus > channeling liability to the State. Beginning in 1954, however, the US > government shifted third-party liability to the emerging nuclear industry. > That move acted as a brake on private nuclear investment, because the > insurance sector could not provide insurance on a normal commercial basis. > In response, the Price-Anderson Act was passed in 1957, channeling liability > to the operator and limiting that liability, while continuing to allow the > supplier chain to be held liable (economic channeling).[1](Ameya: 2009) > > > > The Price-Anderson Act introduced “economic” channeling, which differs from > the “legal” channeling > > that prevails in Canada, and is proposed in India in this Bill. The > difference has been described as follows (ibid): > > > > *“In regimes of legal channelling, the operator is the only party which > victims may legally* > > *hold responsible for a nuclear accident, i.e. no civil lawsuits may be > initiated against any* > > *other party (suppliers, designers, constructors, etc.) and on any other > civil basis than the* > > *channelling legal basis. Ordinary tort law is, in other words, set aside. > This is so, even* > > *when the operator did not even remotely contribute to the nuclear > accident. Moreover,* > > *unless a contract expressly states otherwise, the operator does not have > a right of* > > *recourse against these other parties and fully bears the financial > liability burden of a* > > *nuclear accident vis-à-vis third parties.* > > *In systems of economic channelling, victims can initiate civil lawsuits > both against the* > > *operator and against any of the other parties involved (suppliers, > designers, etc.) in line with* > > *ordinary tort law. However, the operator, whose insurance needs to cover > the other parties´* > > *third party liability as well (i.e. an “omnibus coverage” or “umbrella > insurance”), ultimately* > > *needs to indemnify these parties. The result is similar to legal > channelling in that the operator* > > *bears the financial liability burden of the nuclear accident vis-à-vis > third parties. However,* > > *economic channelling leaves the legal reality unscathed and does not set > ordinary tort law* > > *aside, whereas legal channelling distorts the underlying legal > construction and sidesteps* > > *ordinary tort law. The functioning of economic channelling is best > illustrated by the Three* > > *Mile Island accident of 1979, where all defendants – the operator, the > designer and the* > > *constructor of the plant – were represented by a single law firm.”* > > * * > > In the late 1950s, US firms began exporting nuclear technology and > materials to the emerging nuclear industry in Europe. They became concerned > about their potential liability for damage arising from a nuclear incident > in Europe. That concern was resolved by successfully promoting legal > channeling as the basis of the 1960 Convention on Third Party Liability in > the Field of Nuclear Energy (Paris Convention), which determined nuclear > liability regimes in Europe. US nuclear suppliers also successfully promoted > legal channeling as the basis of the 1963 Vienna Convention on Civil > Liability for Nuclear Damage (Vienna Convention). Western European nuclear > suppliers subsequently promoted legal channeling as the basis for nuclear > liability regimes in Eastern Europe, to facilitate their exports to that > region*. * > > * * > > This history has been summarized as follows: > > > > “Put simplistically, legal channelling was introduced in the legal systems > of Western Europe by the Paris Convention under US pressure and in the legal > systems of Eastern Europe by the Vienna Convention under Western-European > pressure.”(Ameya:2009). > > Since, the objective of the Indian bill is to provide speedy compensation > to the victims, for that the Indian bill should go for economic channeling > of liability. > > Your other point about costly litigation and all that is taken care of, > since in economic channeling the operator is liable and pays without buck > passing on supplier, to this we have also reccomended that the bill proposes > a mechanism of disbursing money quickly for compensation because even if we > keep the status-quo (what sukla is suggesting)the bill does not provide any > mechanism of speedy disbursal of funds. > > > > ------------------------------ > > [1] Evelyne Ameye, “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-Engineers?”, paper for the Nuclear > Inter Jura Congress, Toronto, 5-9 October 2009. > > regards > > karuna > > > On Mon, Jul 5, 2010 at 12:25 PM, Sukla Sen <[email protected]> wrote: > >> >> >> ---------- Forwarded message ---------- >> From: SADANAND PATWARDHAN <[email protected]> >> Date: 5 July 2010 10:50 >> Subject: RE: [Arkitect India] Need your help >> To: [email protected] >> >> >> >> >> I saw the petition put forward by Green Peace. At one point it says, “*The >> bill lays down for legal channeling of liability according to which only the >> operator is responsible in case of a nuclear accident. No civil suits can be >> initiated against the suppliers or any other person for faulty design or >> faulty construction. However, countries like the United States lay down for >> the economic channeling of liability, which makes it possible for law suits >> to be initiated against anyone in the entire supply claim*”. >> >> >> >> Sukla Sen had in fact pointed out that this may actually be a good >> provision as there would be a single agency which is held responsible and >> this would avoid time consuming, highly expensive and wearisome litigation >> on complex issues such as who is responsible for what and then apportion >> accountability. I agree with him. However, bill should provide both >> explicitly and categorically for Operator’s right to hold suppliers fully >> responsible for the equipment they supply & ask suppliers to give an >> undertaking to the operator to indemnify & pay compensation to the extent of >> their culpability in case of a “Nuclear Accident”. >> >> >> >> He had also sent a draft letter (* >> http://groups.yahoo.com/group/arkitectindia/message/8232*) that we could >> study, send as it is, or amend suitably and send. I did that with following >> two changes. >> >> >> >> Added an Introduction at the beginning : >> >> “The *capping of liabilities* in case of *industrial catastrophes* >> *externalizes >> major costs* of projects that are actually *intrinsic to their nature & >> operations. *This unfairly puts the *burden of mitigating the effects* of >> *Hazardous Undertakings* on the *society at large* or worse still, *passes >> such burden to future generations*. If such costs were to be *fully >> accounted for* & *factored into project feasibility studies*, then it >> would become crystal clear that the *total costs of such projects far >> outweigh the potential benefits*. While in the context of present >> economic model that we have, there is an acute need for energy, fortunately >> there are better technologies (*Photovoltaic/ Wind/ Tidal/ Micro-hydel*etc.) >> already available that would generate comparatively cheaply the >> required energy much faster & in a more eco-friendly manner. Another option >> is of achieving energy efficiency – Energy saved = Energy Generated (*see >> calculations >> here<http://satark.blogspot.com/2009/05/milon-ag-wip-to-led.html> >> *). For instance, by replacing all the *GLS lamps* in the country with *LED >> lamps,* one would be able in *less than 2 years* to generate (save) *31,000 >> Giga Watts Hours of energy/ Annum* at *one sixth the cost of building an >> equivalent Atomic power plant*, which in any case won’t be ready *until 8 >> to 10 years*. Considering all these issues, *government should shun the >> proposal of Subsidizing Atomic Power through capping of liabilities*.” >> >> >> >> And added a note Under section ‘III”, point 6 : >> >> “*Every supplier should give an undertaking to the operator to >> voluntarily subject himself to the provisions of this clause/ act*”. >> >> >> >> I believe the Standing Committee of parliament has asked for suggestions & >> comments, which Sukla’s draft letter provides. Green Peace therefore may >> consider modifying the draft letter if required, and use their formidable >> campaigning skills to have as many people they can muster even at this late >> stage to send it in their names to the Standing Committee. >> >> >> >> Regards, >> >> Sadanand >> >> +91 99 234 24 661. >> >> >> >> >> >> *From:* [email protected] [mailto: >> [email protected]] *On Behalf Of *[email protected] >> *Sent:* 03 July 2010 18:50 >> *To:* [email protected] >> *Subject:* [Arkitect India] Need your help >> >> >> >> >> >> Hi arkitectindia, >> >> This is exciting! Along with 187,759 people I signed a petition asking the >> Prime Minister to hold a public consultation before taking a decision on the >> nuclear liability bill. These petitions were delivered to the Standing >> Committee looking at the bill and now they have decided to hold a public >> consultation. >> >> The bill in its current form lets the foreign corporations get away by >> paying a meagre amount in case of a nuclear accident in India. The major >> chunk of the expenses will be borne by the Indian tax payers. But now we >> have a chance to change this bill and make it stronger. >> >> Greenpeace, an NGO working on this issue, has prepared an open letter >> which states the changes required in the bill. Just like the petition, this >> letter will stand a chance of being considered if lots of us sign it. We >> have less than two weeks to change the bill and prevent another Bhopal in >> the making. >> >> I have already added my signature. >> >> Can you add your signature to this letter? >> >> http://www.greenpeace.org/india/change-the-liability-bill<http://www.greenpeace.org/india/change-the-liability-bill?tyf=1> >> >> Thanks! >> >> [email protected] >> >> You are receiving this email because someone you know sent it to you from >> the Greenpeace site. 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