LEGAL ASPECTS OF STRATEGIC PARTNERSHIPS

Transcription

1 LEGAL ASPECTS OF STRATEGIC PARTNERSHIPS IAEA TM Anne-Lise Teani 10 FEBRUARY FÉVRIER 2016 CEA 10 AVRIL 2012 PAGE 1

2 INTRODUCTION What is a strategic partnership? Not a legal concept no definition in international law Key elements to recognize a strategic partnership : a project a long-term relationship For the purpose of this technical meeting, a strategic partnerships is: Dedicated to the expansion/introduction of NPP ( the Project ) International (at least 2 countries involved): - The presentation will not address purely domestic projects - The presentation will not address multilateral strategic partnerships (ex: ITER) Therefore, this presentation aims at introducing the main legal aspects of an international (mainly bilateral) strategic partnership dedicated to the expansion/introduction of NPP 4 FÉVRIER 2016 CEA 10 FEBRUARY 2016 PAGE 2

3 WHO ARE THE PARTNERS? Large number of partners involved in that kind of projects from sovereign actors to private entities: States State owned entities Regulators Private companies Suppliers Insurance companies This large number of partners will result in: Multiple agreements between the different actors of the 2 countries involved Several layers of commitments Establishing a hierarchy between the different layers ot commitments is essential IAEA (or Euratom at the European level) might also be a key actor in strategic partnerships even though they cannot be considered as partners. Ex: Agreement dated 1977 between the Agency, France and South Africa for the implementation of safeguards in respect of the Koeberg nuclear powerstation. 4 FÉVRIER 2016 CEA 10 FEBRUARY 2016 PAGE 3

4 LEGAL FRAMEWORK OF STRATEGIC PARTNERSHIPS The legal framework of a strategic partnership is complex and implies several layers of commitment: At the top of the framework stand an intergovernmental agreement At the center of the partnership stand the commercial contract Agreements Around these 2 fundamental legal instruments a lot of public entities collaborate to secure/develop and prolong the strategic partnership: - Regulators of both countries might collaborate in the field of nuclear safety, radiation protection and licensing - Waste management agencies might also enter into a partnership to implement at the very early stage of the Projet a waste management strategy - R&D organizations of both countries might develop common new projects and exchange of scientists (ex: secondee agreements) - Schools/Universities of both countries might collaborate in the field of education and training The completness of this framework is a prerequisite for a global and long term partnership 4 FÉVRIER 2016 CEA 10 FEBRUARY 2016 PAGE 4

5 INTERGOVERNMENTAL AGREEMENTS (I) At the top of the hierarchy of a strategic partnership stand the intergovernmental agreement Indeed, the decision to expand or introduce NPP in a country is highly political and rests with the State itself In the same way, for a «vendor», a State which masters the nuclear technology, the decision to design and build a NPP outside of its territory is taken by the public authorities and shall be consistent with international standards and non proliferation rules Therefore, an agreement between the 2 interested States is classic but not absolutely necessary. Example of Public Private Partnership (PPP): for the construction of 2 EPR in Hinkley Point, EDF signed a PPP with the british Governement and there is no dedicated intergovernmental agreement between France and UK The negociation of an intergovernmental agreement can be very long. Most of the time, the intergovernmental agreement is preceded by political declarations, Memorandum of Understanding, letters of intention 4 FÉVRIER 2016 CEA 10 FEBRUARY 2016 PAGE 5

6 INTERGOVERNMENTAL AGREEMENTS (II) There are two main categories of intergovernmental agreements: General agreements: - In France, approximately 25 intergovernmental agreements - Generic title Cooperation in the field of peaceful uses of nuclear energy - Large scope of cooperation (energy production/mining/ waste management/r&d projects/nuclear safety ) - Implementation of the areas of cooperation might be delegated to «competent authorities» (for example: Atomic Energy Commission) - Concluded for long periods of time (classic provision: 20 years with possible or implicit renewal) - The existence of a general agreement will facilitate the negociation of a project related agreement Project related agreements: - The scope of the agreement is limited to the project - The agreement can be connected with a pre-existing general agreement - The negociation might be shorter (especially if you already have a general agreement) - Concluded for a long period of time too (30 years is classic) 4 FÉVRIER 2016 CEA 10 FEBRUARY 2016 PAGE 6

7 INTERGOVERNMENTAL AGREEMENTS - MAIN PROVISIONS TO BE NEGOCIATED If a country is interested in a nuclear cooperation with France, the following provisions will need to be discussed: Protection of information Intellectual property Nuclear safety radiation protection Nuclear third party liability Peaceful use Transfers and retransfers Safeguards Physical protection and nuclear security Settlement of disputes Duration Comment: the negotiation of such provisions is complex and take a lot of time to reduce undue delay in the negociation of the commercial contract, both processes can be launched simultaneously (with 2 teams of negotiators). At the national level, it could be very useful to create a joint committee that will coordinate the 2 negotiations.this coordination will ensure the consistency of the «package». In any event, once the 2 texts are finalized, in France, the intergovernmental agreement shall be signed first. 4 FÉVRIER 2016 CEA 10 FEBRUARY 2016 PAGE 7

8 FOCUS ON LOWER PUBLIC AGREEMENTS Concluded by public entities. They strengthen and complete the intergovernmental and commercial relationship. Most of the time concluded on non-commercial basis Examples: Cooperation in the field of scientific and technological research or Cooperation on education and training in the field of nuclear science and technology Provisions to be negociated : Areas of cooperation (research reactors, waste management, fuel cycle, emergency prepardness ) Forms of cooperation (exchange of general information, exchange of scientific and technical information on specific topics, short visits of scientists, joint R&D projects, exchange or secondment of staff, training of staff) Confidentiality Intellectual property Publications Implementation of research collaboration agreements through secondee agreements (negociated on a personal and case by case basis) CEA 10 FEBRUARY 2016 PAGE 8

9 PAGE 9 CEA 10 AVRIL 2012 Commissariat à l énergie atomique et aux énergies alternatives Centre de Saclay Gif-sur-Yvette Cedex Etablissement public à caractère industriel et commercial RCS Paris B FÉVRIER 2016