ARBITRATING CLIMATE CHANGE-RELATED DISPUTES
When Saúl Luciano Lliuya, a Peruvian farmer, filed a claim for damages in a German court against RWE, Germany’s largest electricity producer and one of Europe’s single biggest emitters of greenhouse gases, he was not taken very seriously, at first. Mr Lliuya argued that RWE, by emitting substantial volumes of greenhouse gases, was partly responsible for the melting of mountain glaciers near his hometown of Huaraz.
Mr Lliuya’s claim alleges that RWE contributed to the greenhouse effect, which in turn led to the glacial retreat in the Andes. He demanded that RWE pay part of the costs for protective measures that need to be taken to protect his home from the flood path of the Palcacocha lake, a glacial lake located above Huaraz. In just 40 years, the lake has grown in volume by 30 times as a result of glacial melt. The damages claimed are calculated in proportion to the estimated historical contribution of RWE to global warming.
Although the court of first instance rejected the claim, in 2017 an appellate court considered it admissible and ruled that the case should move forward into the evidentiary phase. In particular, the court will examine the contribution of emissions to climate change, the resulting impact on the glacier and RWE’s contributory share. While the final decision on the matter is still pending, the court’s recognition that a private company could potentially be held liable for climate change-related damages is groundbreaking in its own right.
In 2015, when Mr Lliuya filed his claim, it was unprecedented. Fast forward three years and the situation visibly changed as climate change-related disputes are becoming increasingly common. Columbia Law School’s Sabin Centre for Climate Change Law now counts a total of 1235 climate change worldwide litigations – and these are only those known to the public, excluding, for instance, confidential commercial arbitrations.
Jan-Mar 2019 issue
Vavrovsky Heine Marth