Resolving Climate Change disputes through Arbitration and Alternative Dispute Resolution
By Lauriane Eudeline
Introduction
The International Chamber of Commerce created a body to focus on climate change related disputes, the task force on “Arbitration of Climate Change Related Disputes.”[1] Some of its missions are to inspect and evaluate the current operation of arbitration and dispute resolution services to resolve climate change disputes or assess the particular features of dispute resolution mechanism which guarantee the resolution of climate change related disputes.[2]
The members of the task force are representatives from NGOs, businesses as well as arbitrators and lawyers.
The ICC already engaged in the promotion of responsible business conduct
The ICC claims to have been engaged to promote responsible business conduct earlier than any other organization by setting “good practices” for corporations investing internationally in the 50’s and 60’s. In the 70’s the ICC was the first organization to develop environmental guidelines to enhance business regulation and best practices for its members.[3] More importantly, in 1991 the ICC adopted the Business Charter for Sustainable Development,[4] which was updated in 2015 in order to contribute to the UN Sustainable Development Goals implementation.
What are climate change related disputes?
The task force looks at any climate change issue which could be conflicting with the Paris Agreement, the United Nations Framework Convention on Climate Change[5] and more generally any issue resulting from the effect of climate change. Additionally, the task force can intervene to solve disputes arising from the required transition to climate change. The Alternative Dispute Resolution methods resolve disputes arising in relation to contracts of adaptation in line with the Paris Agreement commitments.[6] Hypothetically, the task force could intervene in a project of implementation of renewable energy structures directly affecting communities and individuals by setting grievance mechanisms, determining rights of redress available to the victims , a dispute board and if necessary review on-a-case by case basis remaining issues.
Use of arbitration and dispute resolution services in climate change-related disputes
The International Chamber of Commerce is confident that arbitration and the other alternative dispute resolution services will be used to resolve climate change disputes. Indeed, arbitration are often used in commercial contracts concerning energy, land, urban and infrastructure and industry. Additionally, investment in climate change-related sectors is increasing, benefiting sectors where the arbitration and alternative dispute resolution services are already operating.[7]
Future Perspective and Benefits
Arbitration has already been used for the past twenty years to resolve climate change disputes for instance, under the Kyoto Protocol.[8] The International Chamber of Commerce observes that, yet arbitration in disputes involving the use of emerging industry, such as renewable energy should still be considered by businesses, international and domestic actors.
Businesses are relying more and more on arbitration and dispute related services in order to solve climate change related disputes and as international standards are evolving.
Lastly, the international feature of climate change related dispute and the usual participation of states in such disputes makes international arbitration and more generally the dispute resolution services of the International Chamber of Commerce a suitable forum. And in case issues exposed are not appropriately solved, States also have the opportunity to seek relief by way of counterclaims.[9]
[1] ICC Commission Report, Resolving Climate Change disputes through Arbitration and Alternative Dispute Resolution.
[2] ibid.
[3] History of the ICC < https://iccwbo.org/about-us/who-we-are/history/ >
[4] ICC Business Charter for Sustainable Development 1991.
[5] United Nations Framework Convention on Climate Change 1994.
[6] ICC Commission Report, Resolving Climate Change disputes through Arbitration and Alternative Dispute Resolution.
[7] ibid.ICC Commission Report, Resolving Climate Change disputes through Arbitration and Alternative Dispute Resolution.
[8] Kyoto Protocol 1997.
[9] ICC Commission Report, Resolving Climate Change disputes through Arbitration and Alternative Dispute Resolution.