CYIL vol. 10 (2019)

MARIANNA NOVOTNÁ CYIL 10 ȍ2019Ȏ However, such a strict legal consequence was probably not the aim of the legislation, despite the fact that, except for personal damage and damage to property, the second- generation conventions leave it to the contracting states to what extent they implement the “new” categories of nuclear damages into their national laws. The compensability itself of the heads of nuclear damage that form its immanent part should be thus viewed as cogent (legal exclusion of compensability on part of the national law is not possible) 27 , i.e. the matter of their suability (with one exception of the Protocol to Amend the Vienna Convention 28 ) is not left to the discretion of the court forum. However, the extent of compensation remains at normative or judicative disposal of the contracting states to the second-generation conventions, which ultimately does not exclude real situations where the extent of compensation would close to very low amounts as a consequence of setting strict and very narrow prerequisites for a possibility of compensation within national law. Thus, the competent court shall be obliged to admit an action for compensation of nuclear damage as legitimate and, according to the lex fori , to proceed only within a question of determination of the extent (scope) of the various heads of nuclear damage, i. e. in particular within questions of determination of their exact content and size. The interpretation pointing to the obligatory admissibility of actions for compensation of nuclear damage is confirmed also by an exception of the last of the heads of nuclear damage [Art. I (1) (k) (vii)] exhaustively listed by the Protocol to amend the Vienna Convention that is the only one to which a clause on its compensability is connected solely on the basis of the admissibility of the general law on civil liability of the competent court. 29 4. Extended concept of nuclear damage – particular heads of damages The newly established heads of nuclear damage may be divided into three homogeneous categories that seem to be extremely wide-ranging 30 due to coverage of diverse forms of losses, not only in terms of the nuclear law 31 but also in terms of the general law of torts. 27 For more detail on the reasons see Soljan, V. The new definition of nuclear damage in the 1997 Protocol to amend the 1963 Vienna Convention on Civil Liability for Nuclear Damage . In: OECD Nuclear Energy Agency: Reform of civil nuclear liability. International symposium, Budapest, Hungary, OECD Publishing 2000, p. 65. 28 Art. 2 (2) (k) (vii) of the Protocol: “any other economic loss, other than any caused by the impairment of the environment, if permitted by the general law on civil liability of the competent court”. 29 “Any other economic loss, other than any caused by the impairment of the environment, if permitted by the general law on civil liability of the competent court.” The original draft referred to “the law of the competent court” (see document SCNL/2/INF/2, p. 3). The current wording was adopted as a result of the UK proposal at the seventeenth meeting of the Standing Committee with no precise explanation of the reasons preceding the adoption of such a text. The basic motive for the adoption of that wording stated may have been a requirement for compensation of this head of nuclear damage not to be admissible if it can be compensated as loss caused by a source other than a nuclear incident. In relation to the term “the law of the competent court” that may be understood as law involving conflict-of-law rules of the Private International Law, the term “general law on civil liability of the competent court” may be interpreted as referring to the lex fori , i. e. substantive law of torts irrespective of whether there is applicable law under the Private International Law rules in the particular case. (IAEA (ed.): The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention on Supplementary Compensation for Nuclear Damage – Explanatory Texts . Vienna: IAEA, 2007, p. 40.) 30 Kissich, S. Internationales Atomhaftungsrecht: Anwendungsbereich und Haftungsprinzipien . Baden – Baden: Nomos Verlagsgesellschaft, 2004, p. 95. 31 See HANDRLICA, J. Nuclear Law revisited as an academic discipline. In: Journal of World Energy Law and Business . Vol. 12, Issue 1, pp. 52-68.

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