Hostname: page-component-cd9895bd7-dzt6s Total loading time: 0 Render date: 2024-12-27T05:55:28.805Z Has data issue: false hasContentIssue false
  • English
  • Français

Private Liability and Critical Infrastructure

Published online by Cambridge University Press:  20 January 2017

Michael Faure
Michael Faure*
Affiliation:
Maastricht European Institute for Transnational Legal Research, Maastricht University
Get access Rights & Permissions [Opens in a new window]

Abstract

Private liability can potentially play a crucial role in protecting critical infrastructure. Traditional liability rules will especially play their deterrent and therefore preventive effect in the case of so-called man-made “technological” disasters. By using a strict liability role and by providing solvency guarantees potential tort-feasors can be provided with incentives to take optimal preventivemeasures.However, the case of nuclear accidents, addressed inmore detail, makes clear that in practice those efficient liability rules that would be needed to generate this preventive effect are often not implemented at the legislative level. The legislator rather imposes financial limits on liability and provides for public funding, thus effectively granting a subsidy to operators. Those type of inefficient rules laid down in international conventions are obviously often the result of interest group politics.

As far as natural disasters are concerned liability rules can play less of a role given the fact that those are considered an “act of God”. One could then only consider public authority liability.However, this is not often accepted in practice and there may also be theoretical reasons to be careful with the imposition of public authority liability. Public authorities are multitask agents which need a substantial amount of discretion. That explains that many legal systems award (partial) immunity from liability to public authorities. This leads generally to the conclusion that although liability rules can play a role in the protection of critical infrastructure those rules may have important limits as well. As a result the primary instrument to protect critical infrastructure will in practice often be safety regulation rather than liability rules.

Type
Symposium on Critical Infrastructures: Risk, Responsibility and Liability
Information
European Journal of Risk Regulation , Volume 6 , Issue 2 , June 2015 , pp. 229 - 243
Copyright
Copyright © Cambridge University Press 2015

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 See on public authority liability for damage to CI also the article by Anne Van Aaken and Isabelle Wildhaber (“State Liability and Critical Infrastructure”, also included in this issue).

2 See Faure, Michael, “Financial Compensation for Victims of Catastrophes: a law & economics perspective”, Law & Policy, 2007, vol. 29(3), p. 342–344.CrossRefGoogle Scholar

3 See Kunreuther, Howard, “Catastrophe Insurance: Challenges for the US and Asia”, in Scawthorn, Charles and Kobayashi, Kiyoshi (eds), Asian Catastrophe Insurance (London: Risk Books, 2008), pp. 3 et sqq., at p. 5.Google Scholar

4 See Calabresi, Guido, “Some Thoughts on Risk Distribution and the Law of Torts”, Yale Law Journal (1961), pp. 499 et sqq CrossRefGoogle Scholar. and see Calabresi, Guido, The Costs of Accidents: A Legal and Economic Analysis (New Haven: Yale University Press, 1970).Google Scholar

5 See for a critical perspective on tort law inter alia Abel, Richard L., “A Critique of Torts”, 37 UCLA Law Review (1990), pp. 785 et sqq Google Scholar. and Keating, Gregory C., “Reasonableness and Rationality in Negligence Theory”, 48 Stan. L. Rev. (1996), pp. 311 et sqq.CrossRefGoogle Scholar

6 See van Velthoven, Ben C.J., “Empirics of Tort”, in Faure, Michael (ed.), Tort Law and Economics, 2nd ed. (Cheltenham: Edward Elgar, 2009), pp. 453 et sqq. Google Scholar

7 See Shavell, Steven, “Strict Liability versus Negligence”, Journal of Legal Studies (1980), pp. 1 et sqq.Google Scholar

8 Landes, William M. and Posner, Richard A., “Tort Law as a Regulatory Regime for Catastrophic Personal Injuries”, 13 Journal of Legal Studies (1984), pp. 417 et sqq.CrossRefGoogle Scholar

9 Landes and Posner, “Tort Law as a Regulatory Regime”, supra note 8; Faure, Michael and Grimeaud, David, “Financial Assurance Issues of Environmental Liability”, in Faure, Michael (ed.), Deterrence, Insurability and Compensation in Environmental Liability. Future Developments in the European Union (New York: Springer, 2003), pp. 7 et sqq., at pp. 35–36.CrossRefGoogle Scholar

10 Shavell, Steven, “The Judgment Proof Problem”, 6 International Review of Law and Economics (1986), pp. 43 et sqq.CrossRefGoogle Scholar

11 So also Kunreuther, Howard C. and Freeman, Paul K., “Insurability, Environmental Risks and the Law”, in Heyes, Anthony (ed.), The Law and Economics of the Environment (Cheltenham: Edward Elgar, 2001), pp. 302 et sqq.Google Scholar

12 See Shavell, Steven, “Liability for Harm versus Regulation of Safety”, 13 Journal of Legal Studies (1984), pp. 357 et sqq.CrossRefGoogle Scholar

13 For that reason the limited liability of corporate entities has been seriously criticized by Hansmann, Henry and Kraakman, Reinier, “Towards Unlimited Liability for Corporate Torts”, 100 The Yale Law Journal (1991), pp. 1879 et sqq CrossRefGoogle Scholar, especially when involuntary creditors (like tort victims) are involved.

14 For difficulties concerning access to justice see the contributions in Tuil, Mark and Visscher, Louis, New Trends in Financing Civil Litigation in Europe. A Legal, Empirical and Economic Analysis (Cheltenham: Edward Elgar, 2010).Google Scholar

15 See Zeckhauser, Richard, “The Economics of Catastrophes”, 12 Journal of Risk and Uncertainty (1996), pp. 113 et sqq.CrossRefGoogle Scholar

16 See Leonard, Herman B. and Howitt, Arnold M., “Acting in Time against Disaster: A Comprehensive Risk Management Framework”, in Kunreuther, Howard and Useem, Michael (eds), Learning from Catastrophes. Strategies for Reaction and Response (New Jersey: Pearson Prentice Hall, 2010), pp. 18 et sqq.Google Scholar

17 See O’Keefe, Phil, Westgate, Ken and Wisner, Ben, “Taking the Naturalness out of Natural Disasters”, 260 Nature (1976), pp. 566 et sqq.CrossRefGoogle Scholar

18 See Shughart, William F. II, “Katrinanomics: The Politics and Economics of Disaster Relief”, 127 Public Choice (2006), pp. 31 et sqq.CrossRefGoogle Scholar

19 US House of Representatives, A Failure of Initiative, Final Report of the select bipartisan committee to investigate the preparation for and response to hurricane Katrina 2006, Washington, available at http://www.nola.com/katrina/pdf/mainreport.pdf (last accessed on Feb. 27, 2015), 156.

20 Department of Homeland Security, A Performance Review of FEMA's Disaster Management Activities in response to Hurricane Katrina, 2006, p. 129, available at: http://www.oig.dhs.gov/assets/MgMt/OIG_06-32_Mar06.pdf (last accessed on Feb. 26, 2015).

21 See Bier, Vicky, “Hurricane Katrina as a Bureaucratic Nightmare”, in Daniels, Ronald J., Kettle, Donald F. and Kunreuther, Howard (eds), On Risk and Disaster. Lessons from Hurricane Katrina (Philadelphia: University of Pennsylvania Press, 2006), pp. 243 et sqq.Google Scholar; Walters, Jonathan and Kettl, Ronald, “The Katrina Breakdown”, in Daniels, Ronald J., Kettle, Donald F. and Kunreuther, Howard (eds), On Risk and Disaster. Lessons from Hurricane Katrina (Philadelphia: University of Pennsylvania Press, 2006), pp. 255 et sqq.Google Scholar

22 Bier, supra note 21 and Walters and Kettl, supra note 21.

23 Report of the Senate Committee on Homeland Security and Governmental Affairs, Hurricane Katrina: a nation still unprepared, executive summary, May 2006, at p. 17, available on the internet at <http://www.disastersrus.org/katrina>.

24 See more particularly Depoorter, Ben, “Horizontal Political Externalities: The Supply and Demand of Disaster Management”, 56 Duke Law Journal (2006), pp. 101 et sqq.Google Scholar

25 Daniels, Ronald J. and Trebilcock, Michael J., “Rationales and Instruments for Government Intervention”, in Daniels, Ronald J., Kettle, Donald F. and Kunreuther, Howard (eds), On Risk and Disaster. Lessons from Hurricane Katrina (Philadelphia: University of Pennsylvania Press, 2006), pp. 89 et sqq., at pp. 91–92.Google Scholar

26 For details see Cannarsa, Michel, Lafay, Fabien and Moréteau, Oliver, “France”, in Faure, Michael and Hartlief, Ton (eds), Financial Compensation for Victims of Catastrophes. A Comparative Legal Approach (Vienna: Springer, 2006), pp. 81 et sqq., at pp. 94–95.CrossRefGoogle Scholar

27 Schäfer, Hans-Bernd, “Can Member State Liability for the Infringement of European Law Deter National Legislators?”, in Eger, Thomas and Schäfer, Hans-Bernd (eds), Research Handbook on the Economics of European Union Law (Cheltenham: Edward Elgar, 2012), pp. 82 et sqq. Google Scholar; Van den Bergh, Roger and Schäfer, Hans-Bernd, “Liability of Member States for Infringement of the EC Treaty: Economic Arguments in Favour of a Rule of Obvious Negligence”, European Law Review (1998), pp. 552 et sqq. Google Scholar; Van den Bergh, Roger and Schäfer, Hans-Bernd, “Member States Liability for Infringement of the Free Movement of Goods in the EC: An Economic Analysis”, Journal of Institutional and Theoretical Economics (2000), pp. 382 et sqq. Google Scholar and Van den Bergh, Roger, “Francovich and its Aftermath. Member State Liability for Breaches of European Law from an Economic Perspective”, in Maduro, Miguel and Azoulai, Loic (eds), The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Oxford: Hart Publishing, 2010), pp. 423 et sqq.Google Scholar

28 De Geest, Gerrit, “Who Should be Immune from Tort Liability?”, 41 Journal of Legal Studies (2012), pp. 291 et sqq., at p. 291.CrossRefGoogle Scholar

29 Paris Convention on Third Party Liability in the Field of Nuclear Energy, 956 UNTS 251 (Paris Convention).

30 Convention Supplementary to the Paris Convention on Third Party Liability in the Field of Nuclear Energy, 1041 UNTS 358 (Brussels Supplementary Convention).

31 Vienna Convention on Civil Liability for Nuclear Damage, 1063 UNTS 358 (Vienna Convention).

32 Faure, Michael and Borre, Tom Vanden, “Compensating Nuclear Damage: A Comparative Economic Analysis of the US and International Liability Schemes”, 33 William & Mary Environmental Law and Policy Review (2008), pp. 219 et sqq., at p. 219.Google Scholar

33 Schwartz, Julia A., “International Nuclear Third Party Liability Law: The Response to Chernobyl”, in International Nuclear Law in the Post-Chernobyl Period (Paris: OECD-NEA, 2006), pp. 37 et sqq, at pp. 41–44.Google Scholar

34 Joint Protocol relating to the Application of the Vienna Convention and the Paris Convention, 42 Nuc. L. Bull. 56 (1988) (Joint Protocol).

35 Vienna Convention as Amended by the Protocol of 12 September 1997 to Amend the Vienna Convention on Civil Liability for Nuclear Damage (the Protocol to the Vienna Convention).

36 Convention on Supplementary Compensation for Nuclear Damage (CSC).

37 Paris Convention on Third Party Liability in the Field of Nuclear Energy as amended by the Additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, and by the Protocol of 12 February 2004 (the Protocol to the Paris Convention).

38 Convention Supplementary to the Paris Convention on Third Party Liability in the Field of Nuclear Energy (as Amended by the Additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, and by the Protocol of 12 February 2004) (the Protocol to the Brussels Supplementary Convention).

39 Article III (a), the Paris Convention.

40 Point 48, the ‘exposé des motifs’ of the Paris Convention.

41 Article IX, the Paris Convention. This is hence similar to the formulation in the Japanese law on nuclear liability. See on the exception of the natural disaster of an exceptional character also supra section 4.

42 Article I (1) (k), IV (1), (3), the Vienna Convention.

43 Article IV (2), the Vienna Convention.

44 Article VI (a), (b), the Paris Convention.

45 Article I (a) (vi), the Paris Convention.

46 Article VI (c)(ii), the Paris Convention.

47 Point 15, the ‘exposé des motifs’ of the Paris Convention.

48 Point 18, the ‘exposé des motifs’ of the Paris Convention.

49 Article VI (f), the Paris Convention.

50 Article II (5), X, the Vienna Convention.

51 Article VII (b), the Paris Convention.

52 Point 43, the ‘exposé des motifs’ of the Paris Convention.

53 OECD: Nuclear Legislation in OECD Countries, Regulatory and Institutional Framework for Nuclear Activities: Sweden, p. 13, available on the internet at <http://www.oecd-nea.org/law/legislation/sweden.pdf>.

54 Gesetz über die friedliche Verwendung der Kernenergie und den Schutz gegen ihre Gefahren (Atomgesetz - AtG) vom 23. Dezember 1959, Neufassung vom 15. Juli 1985, letzte Änderung vom 31. Juli 2011, (Act on the peaceful utilisation of nuclear energy an the protection against its hazards (Atomic Energy Act) of 23 December 1959, as amended and promulgated on 15 July 1985, last amendment of 31 July 2011), § 31.

55 Article V, the Vienna Convention.

56 Article VII (a) (b), the Protocol to the Paris Convention.

57 Article X (b), the Protocol to the Paris Convention.

58 Article V (1), the Protocol to the Vienna Convention.

59 Article X, the Paris Convention; Article VII, the Vienna Convention.

60 Article XI, the Paris Convention; Article VIII, the Vienna Convention.

61 Article III (a)(b), the Brussels Complementary Convention.

62 Article III (b), the Protocol to the Brussels Complementary Convention.

63 Article III 1, IV 1, the CSC Convention.

64 For the patchy and complicated approach under international nuclear liability conventions, see Currie, Duncan E.J., “The Problems and Gaps in the Nuclear Liability Conventions and an Analysis of How an Actual Claim Would Be Brought under the Current Existing Treaty Regime in the Event of a Nuclear Accident”, 35 Denver Journal of International Law and Policy (2006), pp. 85 et sqq., at p. 85.Google Scholar

65 Of these five countries, only Argentina and Romania have nuclear capacity. The net nuclear power generating capacity of Argentia is 935 MWe and that of Romania is 1300 MWe in 2009. See Schwartz, Julia A., “Great Expectations: Where Do We Stand with the International Nuclear Liability Conventions?”, in Pelzer, Norbert (ed.), European Nuclear Liability Law in a Process of Change (Berlin: Nomos, 2009), pp. 43 et sqq., at p. 50.Google Scholar

66 See e.g. Shavell, supra note 7.

67 Faure, Michael and Fiore, Karine, “The Civil Liability of European Nuclear Operators: Which Coverage for the New 2004 Protocols? Evidence from France”, 8 International Environmental Agreements (2008), pp. 228 et sqq., at pp. 229-230.CrossRefGoogle Scholar

68 Trebilcock, Michael and Winter, Ralph A., “The Economics of Nuclear Accident Law”, 17 International Review of Law and Economics (1997), pp. 215 et sqq., at p. 215.CrossRefGoogle Scholar

69 Ameye, Evelyne, “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?”, 19 European Energy and Environmental Law Review (2010), pp. 33 et sqq., at p. 56.Google Scholar

70 See Reiji Yoshida, GE Plan Followed with Inflexibility, The Japan Times (14 July 2011), available at the internet at <http://www.japantimes.co.jp/text/nn20110714a2.html>.

71 Schäfer, Hans-Bernd and Müller-Langer, Frank, “Strict Liability versus Negligence”, in Faure, Michael (ed.), Tort Law and Economics (Cheltenham: Edward Elgar, 2009), pp. 3 et sqq.Google Scholar

72 For example, unlimited liability was adopted in Austria and Germany. In Denmark and Sweden, the unlimited liability is seriously considered or will be applicable when the revised Paris Convention comes into force. See Schwartz, supra note 65, at p. 43, 54.

73 Cited in Currie, supra note 64, at p. 92.

74 Faure, Michael and Fiore, Karine, “An Economic Analysis of the Nuclear Liability Subsidy”, 26 Pace Environmental Law Review (2009), pp. 419 et sqq., at p. 419.Google Scholar

75 Tom Vanden|Borre, “Shifts in Governance in Compensation for Environmental Damage: 20 Years after Chernobyl”, in Faure, Michael and Verheij, Albert (eds), Shifts in Compensation for Environmental Damage (Vienna: Springer, 2007), pp. 261 et sqq., at p. 261, 305.CrossRefGoogle Scholar

76 See Faure and Vanden Borre, supra note 32, at p. 219.