Climate Change Flashcards
What is an example of a contract whose subject matter is related to climate change?
A contractor in a project to supply and erect a wind farm seeks the payment of the balance of the price.
The owner alleges that the output does not meet the technical-economic requirements under public authorities financing, based on energy output, efficiency and/or emission targets.
What is an example of a contract whose subject matter is not related to climate change, but is nonetheless affected by the changes in regulation and policy due to climate change mitigation?
A car manufacturer’s vehicles type is approved under the condition that they use an air-conditioning system refrigerant gas having a global warming potential of 4, well below the country’s legal maximum of 150.
Following the destruction of the production sites of such gases by the Fukushima tsunami, the manufacturer was supplied with another refrigerant
gas and used it in more than 100,000 motor vehicles.
The replacement refrigerant had a warming potential over the legal limit, being close to 1,300.
The manufacturer was compelled to suspend its deliveries and now faces administrative sanctions and potential liability for damages to consumers.
The manufacturer seeks indemnification from its suppliers.
What is an example of a contract whose subject matter is not related to climate change, but is nonetheless affected by the changes in regulation and policy due to climate change mitigation?
A car manufacturer’s vehicles type is approved under the condition that they use an air-conditioning system refrigerant gas having a global warming potential of 4, well below the country’s legal maximum of 150.
Following the destruction of the production sites of such gases by the Fukushima tsunami, the manufacturer was supplied with another refrigerant
gas and used it in more than 100,000 motor vehicles.
The replacement refrigerant had a warming potential over the legal limit, being close to 1,300.
The manufacturer was compelled to suspend its deliveries and now faces administrative sanctions and potential liability for damages to consumers.
The manufacturer seeks indemnification from its suppliers.
What are the key advantages on using arbitration to resolve disputes relating to climate change?
- Access to arbitrators with climate change expertise
- Ability to expedite dispute resolution
- Ability to provide urgent interim or conservatory relief
- Integration of climate change commitments and principles of international law
- Enhanced transparency of proceedings
- Potential third-party participation
- Advances and allocation of costs, to promote fair, transparent and appropriate conduct of climate change related disputes
What are the key advantages on using arbitration to resolve disputes relating to climate change?
- Access to arbitrators with climate change expertise
- Ability to expedite dispute resolution
- Ability to provide urgent interim or conservatory relief
- Integration of climate change commitments and principles of international law
- Enhanced transparency of proceedings
- Potential third-party participation
- Advances and allocation of costs, to promote fair, transparent and appropriate conduct of climate change related disputes
What are the case management techniques available in arbitration to expedite climate change disputes?
1Bifurcate the proceedings or render one or more partial awards on key climate change related scientific, technical or other specialised issues
Identify issues that can be decided solely on the basis of documents, rather than through oral evidence or legal argument at a hearing
Require both parties to produce specific scientific or technical documents that can support their case, including mathematical models
Establish reasonable time limits for the production of documents
Require both parties to jointly or separately provide a non-technical summary document explaining all the scientific or technical issues to the tribunal
Limit the length and scope of written submissions and witness evidence
Inform both parties that they are free to settle the dispute by negotiation or mediation at any time
Provide for a mediation window in the procedural timetable of the arbitration
Opting for an expedited procedure under one of the arbitral institution rules
What are the key advantages on using arbitration to resolve disputes relating to climate change?
- Access to arbitrators with climate change expertise
- Ability to expedite dispute resolution through case management techniques
- Ability to provide urgent interim or conservatory relief
- Integration of climate change commitments and principles of international law
- Enhanced transparency of proceedings
- Potential third-party participation
- Advances and allocation of costs, to promote fair, transparent and appropriate conduct of climate change related disputes
What are the case management techniques available in arbitration to expedite climate change disputes?
- Bifurcate the proceedings or render one or more partial awards on key climate change related scientific, technical or other specialised issues
- Identify issues that can be decided solely on the basis of documents, rather than through oral evidence or legal argument at a hearing
- Require both parties to produce specific scientific or technical documents that can support their case, including mathematical models
- Establish reasonable time limits for the production of documents
- Require both parties to jointly or separately provide a non-technical summary document explaining all the scientific or technical issues to the tribunal
- Limit the length and scope of written submissions and witness evidence
- Inform both parties that they are free to settle the dispute by negotiation or mediation at any time
- Provide for a mediation window in the procedural timetable of the arbitration
- Opting for an expedited procedure under one of the arbitral institution rules
Why is early or urgent resolution of disputes crucial for climate change disputes?
The science, innovation and new technology is fast-moving.
Environmental impacts and effects on populations are potentially irreversible if not dealt with
at an early enough stage.
Regulatory frameworks and the overall energy market will continue rapidly to evolve and impact the allocation of risk in ongoing essential infrastructural and energy projects, possibly affecting millions of lives.
Consequently, it is not always viable to expect disputing parties to await resolution of a dispute over the course of two or more years.
Climate change action is universally acknowledged to be urgent, and arbitration of climate change related disputes must be able meaningfully to accommodate
that urgency.
