Arbitration and Climate Change. A Call for Action from New York
This year’s Climate Action Week in New York took off on September 23 with a high-level Climate Summit convened by UN Secretary General António Guterres. A passionate speech by Swedish activist Greta Thunberg set the tone for the rest of the week with a high sense of urgency.
Fear lingered that the energy and momentum generated by the Summit would – as has happened so many times before – once again fade once participants return home and other events take over the news. Many speakers at the meetings and events throughout the week emphasized that it doesn’t matter what you do for the climate, as long as you do something.
For the international arbitration community, what is that something we can do for the climate? Can we contribute to maintaining the momentum from the Climate Action Week and the sense of urgency to address climate change in an effective and constructive manner? Can we leverage our expertise and experience in support of climate change action? Yes, I would argue. There are several ways in which we can contribute.
Use existing law as a driver for change. International law is already a driver for change, and more can be done. It is not always necessary to wait for states to adopt new instruments, or for stronger language to be included in the international climate agreements. Existing law can be used to argue climate-related cases. The domestication of international law is one example, or why not cross-referencing between treaties (the Allard v. Barbados case is an interesting example of the latter). If we carefully assess existing law at all levels, we can help governments, NGOs or private-sector actors trailblaze climate change action.
Share climate-related dispute intelligence. International arbitration already handles a substantial number of cases related to climate change efforts. A recently published report by researcher Sukma Dwi Andrina in Stockholm reviews SCC cases relating to green technology. By sharing numbers and information we can get a sense of what is already happening, and how the procedure can best serve the interest of parties in these types of disputes. In addition, numbers and case descriptions tell us what the private sector is already doing, and what the obstacles could be for scaling up efforts – Financing? Policy? Finding the right partners? Facts from previous disputes could be a valuable litmus test spurring change to increase future action. We encourage other institutions to undertake the same exercise as SCC just did and share intelligence from their green technology disputes.
Adapt the procedure. Arbitration has a unique international footprint and capacity to meet the specific expertise needed in each dispute. Climate-change related arguments can be assessed by arbitrators with the appropriate experience, or experts appointed by parties or the tribunal. Perhaps we should try to move more climate change litigation cases into arbitration. And in so doing, adopt a different view on confidentiality in climate change arbitration cases. Be more transparent and share facts – albeit without sharing the identity of the parties. This would potentially serve the collective wisdom supporting a coherent effort in the private and public sector for stronger and efficient climate change mitigation and adaptation efforts.
Adopt a climate mindset. International lawyers have a unique insight into international business transactions, some of which undoubtedly have a bearing on climate change efforts. If the legal profession were to adopt more of a climate mindset, the potential impact is huge. What if, in every transaction, we asked ourselves and our clients: Do the details of this deal have climate change related risks embedded? Could we tie this obligation to the Paris Agreement targets? Does this action or line of reasoning support the Sustainable Development Goals? Just by asking these questions, each of us can – in our own way and on our own level – serve as ambassadors for the climate change mitigation and adaptation efforts.
Perhaps we cannot all effect major change, but if we all do something, change will happen faster. And at this point, fast is exactly what we need.