Study of Civil Liability Systems for Remedying Environmental

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Damage

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CMS Cameron McKenna

2003

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TABLE OF CONTENTS

1. INTRODUCTION : NATIONAL CONSTITUTIONS 1

2. THE LEGAL BASIS OF CIVIL LIABILITY.. 37

3. THE OVERLAP OF CIVIL LIABILITY WITH OR RELATIVE POSITION TO ADMINISTRATIVE

AND CRIMINAL LIABILITY. 54

4. PROPOSALS FOR CHANGE. 91

5. FAULT LIABILITY .101

6. STRICT LIABILITY 117

7. THE CONVENTION ON CIVIL LIABILITY FOR DAMAGE RESULTING FROM ACTIVITIES

DANGEROUS TO THE ENVIRONMENT 1993 (THE "LUGANO CONVENTION").142

8. LIABLE PERSONS (UNDER CIVIL, ADMINISTRATIVE AND CRIMINAL SYSTEMS) 145

9. "CHANNELLED" LIABILITY (DIRECTORS, MANAGERS, LENDERS, PARENT COMPANIES)

..168

10. ALLOCATION OF LIABILITY BETWEEN SEVERAL DEFENDANTS .179

11. THE DEFINITION OF RELEVANT TERMS, FOR EXAMPLE "ENVIRONMENT" "DAMAGE"

"ENVIRONMENTAL DAMAGE"..186

12. WHERE THE DEFENDANT IS INSOLVENT OR HAS DISAPPEARED ..199

13. CASE LAW AND GENERAL ISSUES (INCLUDING TRANSBOUNDARY POLLUTION)..206

14. THE RELATIONSHIP BETWEEN DAMAGES, REMEDIATION/RESTORATION COSTS,

REMEDIATION/RESTORATION STANDARDS AND ECOLOGICAL QUALITY STANDARDS.239

15. THE LEGAL STANDING (locus standi) REQUIRED OF THE PLAINTIFF - ESPECIALLY IN

RELATION TO THE UNOWNED ENVIRONMENT AND THE TYPES OF ACTION WHICH CAN

BE BROUGHT276

16. CLASS ACTIONS.307

17. FUNDING (INCLUDING LEGAL AID) .311

18. ALLOCATION OF COSTS IN PRIVATE ACTIONS.315

19. THE BURDEN OF PROOF 318

20. EXPERTS REPORTS AND TECHNICAL EVIDENCE334

21. RIGHTS OF REPRESENTATION..340

22. THE EXISTENCE OF OR PROPOSALS FOR SPECIALISED (ENVIRONMENTAL)

COURTS/TRIBUNALS.342

23. THE DISCOVERY PROCESS..345

24. FREEDOM OF ACCESS TO ENVIRONMENTAL INFORMATION..351

25. APPLICABLE LIMITATION PERIODS.355

26. PREVENTATIVE MEASURES (INJUNCTIONS) AND EXPEDITED LEGAL PROCEDURES ..361

27. FRIVOLOUS AND VEXATIOUS CLAIMS.367

28. THE REQUIREMENT FOR COMPULSORY INSURANCE.369

29. THE AVAILABILITY OF INSURANCE/FINANCIAL COVER .375

30. THE ATTITUDES OF LENDERS, INVESTORS AND FINANCIAL INSTITUTIONS .387

APPENDICES

Appendix I

i. Swedish Environmental Protection Ordinance SFS 1989:364 and appendix listing operations.

ii. Nomenclature to French Law 76/663 on classified installations.

iii. German Umwelthaftungsgesetz and Annex 1 listing plants covered.

iv. The German Klärschlammverordnung.

v. Excerpt from the "Dutch List" standards for clean-up used in Germany.

vi. Annex to Spanish Basic Law 20/1986 on Toxic and Hazardous Waste listing hazardous

substances covered.

vii. Annex to Danish Act on Compensation for Environmental Damage 225/1994 listing major and

hazardous plants covered.

Appendix II

Curricula Vitae of the Contributors to the Study .

Appendix III

Sources of information used by the Contributors to Study 1.