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March 2017

A symposium last year discussed “Fukushima Five Years On – Legal Fallout in Japan”, focusing on diverse lessons for the EU, as reported by Ruth Effinowicz in issue 42 of the Journal of Japanese Law. In the same issue, Zina Teoh also analyses “Food Safety in the Aftermath of Fukushima: Who can Consumers Trust?”.

A more recent question arises from an announcement from Tokyo Electric Power Company (TEPCO, operator of the nuclear power plant that suffered the devastating meltdown in after the 2011 tsunami) that it was seeking to terminate its contract with a Canadian long-term supplier of uranium. TEPCO argues that this is justified by the tighter regulatory regime subsequently introduced by the Japanese government, still limiting reactivation of most nuclear plants in Japan. Below is further background, and my quoted response to Bloomberg. I had also mentioned that their chances of legally terminating will depend on:

(i) pricing, termination, force majeure and hardship clauses likely included in the specific contract;

(ii) as interpreted based on the applicable background contract law (hence depending on any express governing law clause), which may in turn also allow recourse to broader background principles such as the doctrines of non-imputable impossibility or "changed circumstances" under Japanese contract law (compared to stricter doctrines of frustration under Anglo-Commonwealth law, as explained in my 2008 article);

(iii) in light also of the dispute resolution forum (with arbitration also likely to be expressly agreed, limiting scope for court review of the arbitrators' award if a pro-arbitration seat has been chosen).

By way of further background, take a look also at the broader article (prompted by potential disputes over long-term LNG supply contracts due primarily to more fracking in the US ) written by CAPLUS associate Paul Davis, published in issue 38 (2014) of the Journal of Japanese Law.

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Japanese Law in Asia-Pacific Socio-Economic Context
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