CYIL vol. 14 (2023)

MARIANNA NOVOTNÁ CYIL 14 (2023) In adjudicating nuclear liability cases, courts rely on the pertinent provisions of Vienna Convention that functions as a self-executing treaty, thereby directly imposing rights and obligations on the individuals involved. Simultaneously, in situations not explicitly addressed by this convention but still pertaining to nuclear damage compensation, courts apply the principle of lex fori , which governs the procedural and substantive aspects of the legal system in which the court is situated. The above-mentioned situation may consequently lead to an undesirable cleavage, whereby different issues within a single case are governed by the laws of different jurisdictions (dépeçage). Although the Rome II Regulation does not expressly exclude dépeçage (and the situation outlined above is not a typical case of dépeçage), it seeks to avoid as far as possible the application of the laws of different countries to different issues in the same case (e.g., by means of Article 15, by means of broadly worded articles referring to the law which is to govern the case as a whole, etc.). 32 So the area of concern is, whether the exclusion clause of Article 1(2)(f) of the Rome II Regulation also extends to relationships that are not covered by international nuclear conventions or that does not fall under the notion of “non-contractual obligations arising out of nuclear damage” but are nonetheless connected to the determination of nuclear damage or to the nuclear damage claims (e.g., measures that the court may take within the scope of its jurisdiction under procedural law in order to prevent or terminate the occurrence of damage or to ensure the compensation, determination of the burden of proof, and the application of legal presumptions, the right of recourse or the delictual capacity). The answer to this question remains elusive, even within Article 28 of the Regulation, which governs the relationship with existing international treaties and allows Member States to give preference to conflict rules concerning non-contractual obligations as specified by the conventions to which they were party at the time of adopting the regulation. The Regulation’s text does not explicitly clarify whether Article 28 is applicable to conventions regulating nuclear damage compensation. However, insights from the explanatory memorandum suggest that the legislative intent was to establish the primacy of conflict rules in international conventions. The Vienna Convention does not address the choice of applicable law, indicating that it should not be given preference in this respect. 33 If we accept this argumentation, the relations arising from nuclear damage compensation governed by Vienna Convention would be, according to the Article 1(2)(f) of the Regulation, excluded from its scope of application. On the other side, the conflict-of-law rules in matters related to nuclear damage compensation, that does not fall directly under the notion of “non-contractual obligations arising out of nuclear damage”, would underlie the Rome II Regulation in matters of determination of applicable law. This may lead to a curious situation, i.e., another national law could be applied to nuclear damage compensation and another national law to related legal relationships. 34 32 Despite the generally negative attitude towards splitting the case into individual sub-issues, some articles of the Rome II Regulation allow the possibility of dépeçage indirectly (e.g., Articles 8(2), 14, 16, 17, and 26, etc.). 33 NOVOTNÁ, M. VARGA, P., HANDRLICA, J. Strengthening of nuclear liability regime on national, international and European level: a tool to enhance nuclear new build (RW&W Science & New Media 2015), pp. 88–90; KOSNÁČOVÁ, M. Občianskoprávna zodpovednosť za jadrovú škodu v práve EU [Civil liability for nuclear damage in EU law] (2004) 11 International and Comparative Law Review , p. 42. 34 NOVOTNÁ, M. VARGA, P., HANDRLICA, J. Strengthening of nuclear liability regime on national, international and European level: a tool to enhance nuclear new build (RW&W Science & New Media 2015), p. 90.

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