This is a past event
*This is the first event in our new Crossroads in Private International Law webinar series, organised by the Centre for Private International Law.
Nevena Jevremović, Honorary Lecturer, School of Law, University of Aberdeen
Moderated by Professor Guillaume Laganière, Université du Québec à Montréal (UQAM)
The overall passivity of the individual states to take meaningful action towards achieving sustainable development has shifted the balance to strategic climate change litigation, i.e., focused on achieving a broader societal shift. Strategic climate change litigation encompasses proceedings against corporations for human rights abuses and environmental harm in their global operations and value chains. In such a context, the proactive judicial policy is central to protecting human rights and achieving sustainable development goals. Notwithstanding its growing endorsement, the notion of proactive judicial policy is not entirely new. For example, Judge Kooijmans used the term proactive to reflect the International Court of Justice’s attitude about its primary task in the Gabčikova/Nagymaros case. The underlying premise is that a court interprets and applies the law in the current socio-economic reality. Consequently, the proactive judicial policy serves both parties’ interests and enriches the judiciary’s missions, as long as the added value stands on a solid legal basis.
Two phenomenons are notable in the EU context of strategic climate change litigation against corporations. First, the increase in cases against EU-based companies may be linked to a decrease in possibilities of bringing foreign direct liability cases in the US under the Alien Tort Statute (ATS). Nestlé USA, Inc. v. Doe, 593 US (2021) is a recent example. Second, the number of cases in favour of plaintiffs is low. For example, a recent study identified 35 cases against EU-based companies involving allegations of human rights abuses related to health, environmental justice, and labour-related issues in dominantly low and middle-income countries. Only two cases resulted in a positive outcome for the plaintiffs. Similarly, a complementary analysis of civil proceedings against EU companies for human rights abuses and environmental harm in their global operations and value chains identified two cases with a positive outcome for the plaintiffs - Oguru and others v Royal Dutch Shell PLC and others, and Milieudefensie and others v Royal Dutch Shell PLC.
While strategic climate litigation increasingly attracts academic interest, to date, scholars have not classified inconsistencies in approaches and challenges in EU strategic climate change litigation as judicial restraint, proactive judicial policy, or a combination of the two. The paper will include a three-part analysis to fill in this gap. First, it will examine the potential link between the increase of climate change litigation against corporations in the EU with the decrease of ATS litigation in the US. Second, it will provide an overview and an assessment of the strategic climate change litigation against corporations in the EU. Third, it will differentiate between decisions where courts exercised judicial restraint, proactive judicial policy, or a combination of the two. In this part, the paper will identify possible broader societal factors influencing judicial restraint and proactive judicial policy. In conclusion, the paper will describe the differences and similarities in social realities surrounding the relevant decisions and offer criteria to differentiate between judicial constraint and proactive judicial policy.
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