International bar associations and chambers of commerce are increasingly recognising both the central role and evolving expectations of the legal profession in responding to climate change. The International Bar Association (IBA), the International Chamber of Commerce (ICC), the Stockholm Chamber of Commerce (SCC) and the American Bar Association (ABA), among others, have recently issued statements and reports covering various topics related to climate change and the legal sector. These initiatives provide guidance on how lawyers, legal practice and dispute resolution processes can help states, businesses, communities and individuals address contributions to, and impacts from, climate change.
It is particularly important to focus on these initiatives in the present circumstances. Due to the COVID-19 pandemic, a number of significant environment-related events and negotiations have been postponed or moved online in a reduced form. These include the United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties 26 (COP26), Post-2020 Global Framework for the Convention on Biodiversity and High-Level Political Forum on the Sustainable Development Goals. At the same time, many businesses and people are calling for the environment, sustainable energy and just transition to form central pillars of COVID-19 bailout and stimulus packages.
These initiatives and their implications for legal practitioners are discussed below.
IBA climate crisis statement
First, on 5 May 2020, the IBA issued a climate crisis statement that recognised the global challenge of climate change and the role of the legal profession and dispute resolution in addressing those challenges.
The statement comprises broad-ranging recitals and five resolutions related to climate change action within the legal community. The recitals refer to issues spanning the science of climate change, the role of lawyers in addressing climate change, just transition, net-zero emissions legislation and central bank responses to climate change.
The IBA acknowledged that a global response to climate change will increase the number of climate change-related disputes, and thus the work of lawyers. It also called on the legal profession to play a leading role “in maintaining and strengthening the rule of law and supporting responsible, enlightened governance in an era marked by a climate crisis,” including by influencing and supporting their clients’ efforts related to climate change.
The statement’s five resolutions related to:
- Legal practice and professional conduct: urging lawyers to adopt a “climate-conscious” approach to their practice, engagement with and advice to clients and contribution to climate related dispute resolution, within the scope of professional conduct rules and the rule of law.
- Lawyers engaging with climate change related legislative and policy developments: encouraging lawyers to consider how to support, and remove barriers to, laws and policies that advance the attainment of climate neutrality; a just transition for the populations, regions and industries most likely to be affected by climate change; and legal innovation around sustainable business models and impact investing that could assist the low carbon transition.
This resolution also asked lawyers to support one of the recommendations in the IBA’s earlier report, Achieving Justice and Human Rights in an Era of Climate Disruption, which proposed a long-term project to consider the creation of an ad hoc international arbitration body for environmental disputes, and, perhaps eventually, the establishment of an International Court for the Environment. I have discussed this proposal elsewhere here and here.
- The sustainable development goals (SDGs) and using the rule of law to address climate change: encouraging lawyers to support, engage with, and promote the implementation of the SDGs, including the goals related to ending poverty (goal 1), accessing sustainable energy (goal 7), climate change (goal 13) and peace, justice, institutions and the rule of law (goal 16).
- Bar associations, law societies and similar bodies around the world: encouraging members to engage with schools and students about the climate crisis and human rights and to develop practical educational tools about those issues for qualified lawyers.
- Personal and professional life: encouraging lawyers to show practical and intellectual sustainability leadership in their professional activities, lifestyles and communities.
The IBA’s resolutions highlight the importance of incorporating modern climate change imperatives into the professional work, advice, practice and education of lawyers. If these resolutions are to be meaningful in the context of professional practice, arguably lawyers should now identify climate change related risks, liabilities and potential courses of action when relevant to any matter on which they provide advice.
IBA Model Statute on Climate Change Proceedings
Second, in February 2020, the IBA released its Model Statute for Proceedings Challenging Government Failure to Act on Climate Change for consideration and possible adoption by governments.
The model statute is intended to:
- Assist individuals and communities to better access domestic courts to challenge government action or inaction on climate change.
- Assist domestic courts to evaluate such claims against states or state instrumentalities in respect of existing statutory or other obligations.
- Provide appropriate relief against government entities to take action to address climate change.
The model statute contains a modular menu of 23 articles, with commentary that builds on lessons from recent climate change litigation cases, and from existing laws and procedural rules in different common law and civil law jurisdictions.
The model statute focused on four, principally procedural, areas of climate change related disputes:
- Access to courts: covering jurisdiction, standing, sovereign immunity, redressability and costs.
- Framework for adjudicating climate change litigation against governments: covering causes of action, causation and evidence (including rebuttable assumptions, admissibility, standard of proof, burden of proof, environmental impact statements and court-appointed experts).
- Access to information: covering the right to environmental information, discovery/disclosure and the right to reasons for decisions.
- Remedies against government defendants: covering injunctive relief, setting aside decisions of public authorities, declaratory relief and court supervision.
The model statute is intentionally focused on public litigation of government actions; it does not relate to litigation against private actors. There are parallels, however, to other developments that will impact private actors in various ways, including new generation (model and in force) investment and free trade agreements, and the work of United Nations Conference on Trade and Development (UNCTAD), United Nations Commission on International Trade Law (UNCITRAL) Working Group III and the Energy Charter Treaty to reform procedures and substance in international arbitration.
ICC report on climate change related disputes and arbitration
Third, in November 2019, the ICC Commission on Arbitration and ADR published a report entitled Resolving Climate Change Related Disputes through Arbitration and ADR, to identify ways in which process and procedure could be enhanced in climate change related cases. The report identified energy systems (for example, renewables, nuclear, fossil fuels, coal, electricity storage technologies), urban and infrastructure systems (for example, transportation), land use systems (for example, agriculture), and finance and insurance as the sectors most likely to be involved with climate change related arbitration.
The report defined climate change related disputes broadly, as those:
- Involving climate change related contracts: transition, adaptation or mitigation contracts entered into that specifically or generally relate to the advancement of climate change goals or commitments.
- Involving general contracts affected by climate change measures: contracts not captured by the first category above, but that may nonetheless be affected by changes in states’ laws, regulations or policies to meet international climate change commitments; voluntary commitments by industries or corporations related to corporate social responsibility; the physical consequences of climate change; and responses to domestic climate change related litigation.
- Related to climate change impacts, and which are covered by submission agreements: including those with populations affected by commercial activities related to climate change matters.
The report’s remit was to review and distil procedural features of existing ICC rules relating to arbitration, mediation, experts and dispute boards that could potentially be used in climate change related disputes. It also provided drafting guidance to incorporate those features into dispute resolution processes.
The report covered six categories:
- Recourse to appropriate scientific and other expertise: securing relevant expertise (scientific, technical or otherwise) to ensure that decisions reflect sound and up-to-date knowledge “in a new and fast-moving area” (which could be attained by appointing arbitrators with appropriate expertise; party-appointed experts; tribunal appointed experts; or expert determination).
- Measures and procedures to expedite early or emergency interim or conservatory relief: highlighting opportunities to use faster and more effective procedures, including through case management, commensurate with the complexity, urgency and special sensitivities of a collaborative climate change response.
- Application of climate change commitments or law: exploring opportunities to integrate climate change laws, policies or commitments (for example, UNFCCC, Paris Agreement, national law) into dispute resolution processes and procedures.
- Transparency: weighing the possible benefits of some increased measures of transparency, including public access to documents and proceedings, and publication of awards in full or part.
- Third party participation: considering options for third party involvement in dispute resolution procedures, including through joinder and amicus curiae submissions.
- Costs: addressing the role of costs, including advances and final allocation between parties, in ensuring that the appropriate stakeholders are able to participate in the dispute resolution process.
An earlier 2018 ICC report on dispute resolution and climate change (the result of an ICC/IBA/Permanent Court of Arbitration/SCC/UNFCCC joint conference) covers a broader range of issues and substantive topics. Together, these two reports provide further practical guidance about how climate conscious lawyering can be infused into daily legal practice and dispute resolution.
ABA resolution on climate change
Fourth, in August 2019, the ABA House of Delegates issued a new resolution on climate change (supported by a detailed report) that “urges federal, state, local, territorial, and tribal governments, and the private sector, to recognize their obligation to address climate change” and “take action to” reduce US greenhouse gas emissions to net zero or below as soon as possible. The resolution also urges lawyers to advise their clients of the risks and opportunities that climate change provides, and engage in pro bono activities to aid efforts to reduce greenhouse gas emissions and adapt to climate change.
SCC crowd-sourced green treaty building
Fifth, in late 2019, a former consultant to the SCC Arbitration Institute released a report that analysed the prevalence and rise of “green technologies” in SCC international arbitration cases, a trend common across arbitration institutions. The SCC, under the leadership of Annette Magnusson, deserves credit for its advocacy on the creative use of international law to bridge the policy gaps between climate change, investment protection and dispute resolution. One particularly notable initiative was the Stockholm Treaty Lab competition, where the SCC crowd-sourced innovative ideas to create model treaties designed both to protect investors and channel investments into low carbon projects consistent with Paris Agreement objectives.
Individual and collective initiatives to implement climate action
Finally, a growing number of legal practitioners are writing about and creating projects with practical solutions that aim to drive climate change awareness and real world action within legal practice, dispute resolution and allied fields. For example:
- The Chancery Lane Project: where corporate, commercial, transactional and disputes solicitors, barristers and in-house counsel come together to brainstorm and draft climate change conscious model laws and commercial contracts for mainstream adoption and use by businesses and communities. Their motto is “Change the Precedent, Change the World”. The list of law firms and chambers offering their support continues to grow.
- The Green Pledge and Campaign for Greener Arbitrations: created in 2019 by independent arbitrator Lucy Greenwood, the Green Pledge asks practitioners and arbitrators to commit to assessing and reducing the carbon footprint of their professional practices, including international arbitrations and mediations. The initiative is expanding to include law firms, arbitration centres and allied services involved with international arbitration and mediation. It was also nominated for the GAR “Best Development” 2020 award.
- The Legal Response Initiative: a network of legal advisors (private practice, barristers, NGOs, academics) who provide pro bono advice and support on international climate change law and allied fields to climate-vulnerable developing countries and civil society observer organisations attending the international climate negotiations.
- Climate conscious legal practice: Judge Brian Preston (Chief Judge of the Land and Environment Court of New South Wales, Australia) has become well known for his decisions in environment related cases, including a recent decision related to extractive industries and climate change, Gloucester Resources Limited v Minister for Planning. Judge Preston has written and spoken extensively about climate change and environmental issues in contracts, negligence, administrative and property law. He has also provided practical, thoughtful guidance about how individuals can cultivate a climate conscious commercial or other legal practice.
Lawyers have long contributed to major breakthrough cases and law reform initiatives that shape history. In the context of climate change and energy transition, that work continues through both domestic strategic public litigation and international institutional reform. Yet the role of conscientious, daily professional practice to bring about change over time should not be overlooked. Each client meeting, piece of advice, transaction and dispute could present opportunities for lawyers to suggest appropriate, well-judged proposals that influence outcomes related to climate change issues. The initiatives discussed above call on lawyers, law firms and institutions to pursue and create those opportunities.