Conference programme

The last few years have seen a surge of climate change-related cases against governments. On the one hand, climate litigation is being used as an instrument to enhance a government's climate ambitions. On the other, corporations affected by the government's climate policy – for example in relation to the phaseout of fossil fuels – are seeking recourse in investor-state arbitration (notably under the Energy Charter Treaty). Are governments caught between a rock and a hard place? This panel will consider the current state of play and look ahead at future developments in the area of climate change litigation against governments.

In countries with a strong rule of law and independent judiciaries, when there is failure by institutions (government, corporations) to act according to expected society norms, it is the judicial branch that citizens turn to instead. The failure to act on climate change is one of these instances. Climate litigation has become more common. Last year there was considerable growth in climate cases that, for example, refer to human rights, companies act and constitutional violations in their arguments and claimants have become increasingly diverse in their backgrounds, including non-governmental organisations (NGOs), political parties as well as shareholders and individuals. It is thus imperative that judges are ‘climate literate’ as, in the context of existing legal systems, they will play a significant role in helping to combat climate change including and, importantly, continuing the evolution of common law in a manner that adapts to society’s changing circumstances and expectations.

In the midst of a climate crisis, what part can the law play? This panel will explore the role that the law of tort, or extra-contractual obligations, can and should play in climate change actions against corporates. We will discuss a number of recent cases from across the world, which have had varying levels of success. Is there a difference in approach between common law and civil law jurisdictions? If the law of tort is not currently well suited to meet the challenge we face, how can and should the law change? What other private rights of action are available against corporates?

Forum and governing law are key elements to the success of a claim. With jurisdictions advancing at different pace on climate change, litigants have been leveraging the strengths and vulnerabilities of each legal system to advance or defend their claims from discovery proceedings to tort remedies. Drawing from recent cases, this panel will consider the strategic procedural planning related to climate change claims with a focus on forum and applicable law.

As the links between climate change, protection of the environment and human rights are being expressly recognised at the international level, there has been a proliferation of cases against states and governments using rights-based approaches to tackle inaction on climate change. International and regional human rights law is also being deployed in litigation against corporates by claimants seeking to establish accountability for the harmful effects of climate change. This panel will highlight the driving force behind this emerging trend, discuss the legal bases of such claims and consider the likely trajectory of rights-based arguments against corporates in the future.

This panel will consist of a case study around the below hypothetical:

Steel company (listed), headquartered in Germany, with subsidiaries in the United Kingdom, New Zealand, and the United States (listed company), is sued by an NGO seeking the reduction of the company's global emissions by 50 per cent by 2030.

The panel members will take on the below roles:

(1) a lawyer acting for a hypothetical claimant NGO with shareholding

Kathleen Donnelly Henderson Chambers, London

(2) a lawyer acting for a hypothetical corporate defendant

Adam Heppinstall QC Henderson Chambers, London

(3) a lawyer/judge having to decide on the matter

Dennis Horeman De Brauw Blackstone Westbroek, Amsterdam