Poland is still fighting over a clause that could decide the fate of its first nuclear power station: whose law would apply if the American contractors end up in court. Halfway around the world, Japan is facing the same dilemma with the same ally, and Warsaw is studying that standoff closely.
The dispute is about much more than the wording of a contract. It concerns the entire Choczewo investment, a PLN 192bn turnkey project that Polskie Elektrownie Jądrowe and the Ministry of Energy want to put under Polish jurisdiction. The Westinghouse-Bechtel consortium has not yet accepted that condition, and the outcome will shape the local supply chain contracts that Polish companies are expecting from the largest construction site in the country’s modern history.
Japan’s experience shows that liability questions can derail even the most politically desirable nuclear deal. Prime Minister Sanae Takaichi announced during a March visit to Washington that Tokyo would spend $73bn on US energy projects, including small modular reactors to be built by GE Vernova and Hitachi in Tennessee and Alabama. That pledge formed part of a broader agreement with President Donald Trump’s administration: the US agreed to lower tariffs on Japanese goods from 25% to 15%, while Japan promised $550bn of investment in American industry, infrastructure and energy by January 2029.
According to the Financial Times, the nuclear portion of that deal is still being negotiated. The Japanese side has not accepted the verbal assurance of Commerce Secretary Howard Lutnick that institutions such as the Japan Bank for International Cooperation would bear no liability in the event of an accident. Time is not on the president’s side: with two and a half years left in his term, his popularity is slipping and Republicans face midterm elections in which all House seats and 33 of the 100 Senate seats will be at stake.
Why two allies see liability so differently
Both Japan and the United States belong to the Convention on Supplementary Compensation for Nuclear Damage (CSC), but their domestic rules remain far apart. Japan relies on the classic model of legal channelling: the operator alone is responsible for nuclear damage, and claims against suppliers, builders or financiers are rejected for lack of standing. The United States, through the Price-Anderson Act, uses economic channelling, under which other entities can formally be sued, although the operator eventually pays the economic cost.
– Tensions on the US-Japan line over financing SMRs show that civil liability for nuclear damage is no longer merely a matter of plant operation and compensation after a possible accident. It already influences the stage of investment preparation, contract negotiation and financing – said Patrycja Wysocka, head of the Energy & Natural Resources practice at KKG Legal.
– Even if financial liability risk is minimised, the very fact that lawsuits are filed brings costs, such as legal defence and reputational repercussions – added Patrycja Nowakowska, an expert in the same practice at KKG Legal.
A Japanese project built and operated on US territory would be regulated by the Nuclear Regulatory Commission and American national law. The protection that Tokyo’s legal channelling model gives to non-operators may therefore not apply. The US grandfather clause in the CSC allows American special solutions only in domestic relations, not automatically in foreign projects.
Lessons for Poland before the contracts are signed
Poland is building its nuclear sector along two tracks at once. The state-led large-scale plant in Pomerania is expected to deliver 3.6 GW, while public-private investor Orlen Synthos Green Energy is preparing a fleet of SMRs with a capacity of 0.3 GW each. Both programmes are at the stage of key contractual negotiations, and both rely on US technology: Westinghouse and Bechtel for Choczewo, GE Vernova Hitachi for the SMR fleet.
– In Polish public debate, civil liability for nuclear damage is usually seen through the protection of potential victims after a possible accident. The American-Japanese example shows that the issue also has an investment and financial dimension – said Wysocka and Nowakowska.
– The example of Japan shows that liability issues can matter for plant operators and potential victims, as well as for technology suppliers, financing institutions and participants in the investment process – said the two experts.
Poland still has no convention relationship with the United States, which adds uncertainty about the liability of American entities involved in the project. The Polish Nuclear Energy Programme, still unpublished, includes accession to the CSC as one of its goals. The lawyers from KKG Legal argue that joining the convention would not replace domestic regulations, but would strengthen the predictability of the legal environment for investors, suppliers and lenders.
– On the contrary. It shows that even between countries that have a convention relationship, liability can affect negotiations and financing conditions. The absence of that relationship means even greater uncertainty for project participants – the KKG Legal experts said.
The nuclear agenda will be discussed at the Energy Days conference scheduled for 30 September and 1 October at the International Congress Centre in Katowice.
Źródło: WNP.PL, Fot. PAP/EPA/BONNIE CASH/PAP/Paweł Supernak
