Washington International Law Journal


Joel Rheuben


This article considers the Japanese government’s response to the 2011 Fukushima nuclear power disaster, in assisting Tokyo Electric Power Company (“TEPCO”) with handling claims for compensation. It argues that in setting guidelines for claims, establishing a government alternative dispute resolution (“ADR”) body to deal with disputes, and creating a convoluted funding structure that has led to the effective nationalization of TEPCO, the government has intervened significantly in what are essentially private disputes governed by the Nuclear Compensation Law. This is contrasted with the less interventionist response of the New South Wales government in Australia to mass tort claims for asbestos exposure. This article argues that this difference in approach can be attributed to the respective scope of state liability for regulatory failure in Japan and common law countries. Whereas courts in common law countries have imposed a high threshold for establishing the liability of public authorities, Japanese courts have acknowledged liability more readily, creating an incentive for the Japanese government to divert potential claims against itself from the courts.

First Page