CLIMATE CHANGE ARBITRATION – A MODEL IN THE MAKING
A substantial amount of data has already established that the planet’s average surface temperature has risen about 0.9 degrees Celsius since the late 19th century. Increased carbon dioxide and other human-made emissions into the atmosphere largely drove the majority of that change. Most of the warming occurred in the past 35 years, with the five warmest years on record taking place since 2010.
A transition to a low carbon future is no longer an option; it is a necessity. States have engaged and confirmed this in public international law instruments, such as the 2015 Paris Agreement or even before that, the United Nations Framework Convention on Climate Change (UNFCC), which entered into force in 1994.
It is not a surprise that the answer to climate change starts with the law. A new architecture for a global greener, if not green, economy required this new legal framework. Now, countries are actively implementing these international commitments into nationally determined contributions, new legislations, policies and regulatory frameworks.
Still, the disastrous impact of global warming will only be felt beyond this generation. It will impose a hefty cost on future generations with little direct incentive for the current generation to prevent it, if not for doing the right thing. As a result, despite new international regulatory frameworks, momentum is often challenged by local frictions, in jurisdictions with less stringent enforcement or oversight, or even within the legal complexities of more sophisticated jurisdictions. The more we wait, the greater the price but progress remains slow and inconsistent.
This article will not default to fearmongering, or attributing fault, responsibility and blame. Rather, it will focus on discussing how climate change is likely to affect the rule of law and businesses globally in the very near future; and how stakeholders can participate.
Apr-Jun 2020 issue
BVI International Arbitration Centre