3 reasons why arbitration and ADR should play a role in climate disputes

Climate change is one of the greatest threats facing our world today—causing a wide range of impacts affecting everyone, everywhere. We can only expect that the number of climate-related disputes will increase in the coming years.

So what can individuals, companies and governments do to navigate the complex, myriad risks associated with this global phenomenon? The International Chamber of Commerce (ICC) has developed a toolkit to help (and prepare) users and practitioners with these specialised cases to streamline their dispute resolution needs. The practical resource, Resolving Climate Change-Related Disputes through Arbitration and ADR, launches today in Paris, at an event hosted by White & Case.

Here’s why arbitration and ADR work for climate change-related disputes:

1. It’s enforceable

Did you know that arbitration benefits from worldwide coverage by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, otherwise known as the New York Convention? This feature enables cross-border recognition and enforcement of arbitral awards, which is not always the case with litigation. Arbitration also offers the accessibility of an arbitral tribunal with specific expertise and the flexibility as to where an arbitration is conducted or heard. Moreover, arbitral tribunals can adopt realistic time-frames, engage expert knowledge, and, in certain circumstances, admit amicus curiae opinions, as well as to adapt processes with flexibility depending on the nature and scope of the dispute.

2. It’s efficient

Urgency, timeliness and avoidance of delay are critical when it comes to climate-related disputes, as some environmental impacts may have irreversible consequences if not dealt with at an early stage. Arbitration and ADR mechanisms are well suited for these types of disputes, as they typically do not take years to resolve—regardless of the number of parties and complexity of the case. Arbitrators and appointees under ICC Arbitration Rules, ICC Mediation Rules and ICC Expert Rules, are selected according to availability and as such, parties give much weight to time as a factor in the resolution of their dispute. The ICC International Court of Arbitration maintains fundamental procedural safeguards and due process considerations for all interested parties involved, parties who also benefit from a careful scrutiny process of the final award by the ICC Court. Further still, parties and arbitral tribunals have the possibility to adopt certain case management techniques to facilitate prompt resolution of climate change-related disputes and can agree to use Expedited Procedure Rules among other prompt solutions.

3. It’s tailoured to your needs

Arguably the single most important feature when arbitrating climate change-related disputes is the ability to ensure appropriate expertise is available to parties and tribunals when it comes to understanding the dispute and its specific resolution techniques. The ICC Rules of Arbitration  make it possible for parties to have a decisive impact on the choice of their arbitrators, especially with regard to competence and skill. When it comes to experts, the ICC International Centre for ADR conducts a bespoke search in every case in order to identify individuals who fit the particular case criteria. And under the ICC Arbitration Rules and dispute resolution practice, there are several additional features in place—including the use of escalating dispute resolution clauses in order to settle and resolve the dispute before the commencement of an arbitration; emergency arbitration; interim and conservatory measures; and other time and cost management techniques—that may be used depending on the unique needs of your case.

As the institutional representative of more than 45 million companies in over 100 countries, ICC has the experience, knowledge and global network to mobilise bold action at scale, whether through advocacy for policy frameworks that support the alignment of business operations or working to reach the additional goal of net-zero emissions. Intentionally launched ahead of the United Nations Climate Change Conference (COP 25), this fit-for-purpose resource includes everything an arbitrator, user or even state official would need to effectively deal with intricacies of climate-related cases—from real-world examples and sample clauses for contracts to insights from internationally renowned institutions.

Download your digital copy of our ICC Commission Report on Resolving Climate Change-Related Disputes through Arbitration and ADR today or browse the document through our dedicated ICC DRS app.

A second global launch event is slated for 21 January 2020 in New York, United States.