CIArb Features
International Arbitration and Sustainable Investment: Facilitator or Foe?
12 Nov 2021
On 11 November 2021, Wendy Miles QC FCIArb delivered CIArb’s Alexander Lecture live from COP26. She delivered a thought-provoking and inspiring lecture, exploring how international arbitration can play its part in global action to mitigate and adapt to climate change. We are delighted to reproduce the lecture here as a transcript.
Good evening Lords, Ladies and Gentlemen.
I thank you for this opportunity and platform to speak with you on the subject of ADR, sustainability and climate change. I especially thank you for permitting me to do so remotely, from the COP26 in Glasgow, at a time when our community is anxious to resume in person interaction where possible.
The topic is International Arbitration and Sustainable Investment: Facilitator or Foe?
Let’s first remind ourselves that international arbitration is an inanimate object; as such, it can neither be friend nor foe. The short answer to the question posed is neither.
The longer answer is that international arbitration is a tool. And as such, it can play a critical role in helping to achieve, or indeed to hinder, the achievement of global climate change mitigation, adaptation and resilience objectives, and their financing, in accordance with the goals of the 2015 Paris Agreement.
Any tool can be used in different ways.
A hammer is a tool that can maim or a tool that can build a home.
A pen is a tool that can write hate speech or a tool that can draft the Paris Agreement Rulebook and COP26 Cover Decision, as is happening right now just an hour away.
It is how the tool is used that determines its effect, power and influence. And whether it helps or harms.
And how it is used depends on the user. It depends on her values and her understanding of the effect – intended or unintended – of her tool on the achievement of the Paris goals.
I want to take this Alexander Lecture as an opportunity to convey to you the power that we hold as users of the tool international arbitration when it comes to achieving those non-negotiable goals. Because not achieving them is not an option.
So to do that, I need first to communicate to you exactly what is at stake this week in Glasgow, in this November, and at this critical moment of our existence on our planet.
And it is with some trepidation that I do so. Because on the few occasions in the last few weeks that I given voice to these thoughts, one businessman of a certain age labelled me a ‘MorningStar’ reader (I confess I had to Google what that was) and another told I just had to learn to be less pessimistic.
I know this is hard to listen to. But I also know that the alternative of burying our heads in the sand is not a viable strategy. So I speak to you as a member of your community for 25 years and ask you hear me out.
On community, as many of you know, I left NZ, my country of birth, in my 20s. For the past quarter of a century, the UK has been my home and the world of international arbitration has been my community. I have worked with, been mentored by, mentored, appeared against, appeared before and had appear before me some of the greatest minds of international arbitration of the late 20th and early 21st centuries. I have served on our institutions, 20 years on the ICC Commission, almost a decade on the ICC Court, over 20 years a member of this institution, 6 years a trustee and a term as chair of its Board of Trustees, and listened avidly to many an Alexander Lecture by truly great jurists and leaders in the field of arbitration.
As I speak to you as the community of most of my adult, working life, I am going to be brutally honest. I could talk about ‘decarbonisation’ and ‘transition’ and ‘opportunism’ when it comes to both commercial contracts and resolution of their disputes. I could also talk about investment ‘protection’ and investor state dispute ‘proliferation’ in this brave new world of mitigation and adaptation and the inevitable change in regulation by states. I could even talk to you about greening arbitration.
And I will touch on each of these because I happen to think they all matter.
But I also want to talk about how deeply concerned, worried and, frankly, frightened, I am for our future. And as we move forward from this COP26, how we choose to utilise the international arbitration tools at our disposal is going to have a direct impact on our future.
Some of you might be aware that I gave a keynote here in Scotland this morning to the Scottish Arbitration Association called:
‘We Need to Talk About Climate Change’
A quote from the mother in the harrowing book by Lionel Schriver of a similar title was my sub-heading:
"What we talk about is what we think about, is what our lives are about".
I chose that title because I believe that if we first grapple with the harrowing reality of climate change, and what it means for every aspect of our lives and work, only then can we start to think about what each and every one of us needs to be doing to tackle it. And these, in turn, will become what our lives and indeed our work, are about.
So, you are no doubt reading or watching the news and seeing announcements emerging from the Scottish Exhibition Centre in Glasgow each day. Our UK Government likes its pithy and positive soundbites. Today I have been wearing one on my COP mask: ‘Let’s Do Net Zero’.
But there is no positive soundbite for the fact that our world is on the precipice of rapid and unprecedented change, and we only have ourselves to blame.
You see, we have had our climate diagnosis for quite some time. We have also had a cure. But we were too caught up in our own comfortable lives and work and economic models of success to make the required changes to treat the problem and administer the cure. And now we are too late to prevent the consequences of the harm we have already caused.
Our climate is terminally ill. And it is our everything. Biodiversity is in freefall and emissions continue to rise despite years of warnings from the scientific community that this must stop to avoid catastrophic climate change.
This is my 5th COP, and I have never before been struck by the sense of desperation and, yes, grief, that envelopes these talks and the action in the fringes of the negotiations. This is the COP where the message appears to have come home in the most powerful manner: we are destroying the conditions required to sustain human life on this planet, as well as the lives of millions of other species.
We know it.
We know how to stop it.
And yet, we continue to do it.
So it feels now as though we have now entered end game.
This is our final play and the moves we make from this moment will determine our future and that of our children and their children. So if you hear the youth in the streets expressing visceral anger, despair and deep, deep frustration, that is why. Their pain is real. And because they are not caught up in the mortgage, school fees, pension plan, retirement home, holiday, new car, new house, new job, new partnership, new case, new client – hamster wheel of life – they have clearer vision. And the future affects them so, so, so much more than it will affect most of us.
As at today, we are on track for 2.7°C warming above pre-industrial levels by mid-century. As at today, we are currently 1.2°C warming above those levels. We only have 0.3°C to go before we exceed the target that scientists continue to warn us not to exceed. Pledges from Glasgow so far get us to 1.9°C but actual policies only to 2.4°C. And we have proven year upon year that we are not meeting our own targets.
So an announcement from Glasgow this week that the world has committed to close to 1.5C will be wonderful. And messages from the US and China yesterday are extremely well received.
So too was the announcement this morning by 12 countries who are founding members of the Beyond Oil and Gas Alliance, chaired by Denmark and Costa Rica and including France and New Zealand, among others, as members. These countries are committing to phase out coal and, in some cases, all fossil fuel production.
But saying you will do something, and actually doing it, are two very different things. And to meet those pledges:
Everything
Must
Change.
And that change is going to be really, really difficult and involve a lot of personal and professional decisions that are much more challenging than whether or not to fly to an arbitration conference.
The difference between 1.5 and 2.4 sounds small. But it is the difference between billions of people’s homes remaining habitable. Billions of displaced peoples who will need somewhere to go. And even in our more protected developed countries, heat will cause loss of life, sea level rise, flooding, erosion and storms will cause loss of homes, property and life and mass interruption to supply chains and food supply. And we already know what a pandemic can do.
We are not going to stay below 1.5°C.
It pains me to speak those words out loud because I think of myself as an advocate for net zero by 2050 or earlier, the GHG emissions level required to keep us below 1.5°C by the middle of this century. I have spent years working with clients to understand what this means and how to achieve it.
But net zero requires a 50% reduction in global emissions by 2030.
That is within the next eight years. I will be 58 and I hope still doing this job. My sons will be in their 20s. This is not a next century never, never timeline. This is now.
To achieve that 50% reduction by 2030 in order to reach net zero by 2050, everything must change in the next eight years.
Just imagine the transformative level of change required to our national laws and regulation and to our system of international trade and investment. The change to transition our entire global energy system, industrial system, manufacture and supply chain, the infrastructure system, transport (land, sea and air) and land use – how we get our food.
The level of transformative change required in eight short years may seem unfathomable to us here this evening.
But not necessarily to our predecessors in this great institution of the CIArb. And perhaps not to the founder and namesake of this evening’s lecture, Mr. John Russell Willis Alexander.
You see Mr. John Russell Willis Alexander, who established this Alexander Lecture in the 1970s, also lived through a transformative global transition, arguably more than one.
He was born in 1897.
He was born in an age when regional arbitration was already commonly used by European merchants and trade associations to settle commercial disputes. According to the author of an excellent article and book “The Three Ages of International Commercial Arbitration”[1], Mikael Schinazi:
This was especially true of England, which had become the dominant world economic power during the Industrial Revolution. As the volume of trade increased, so too did disputes between buyers and sellers. Arbitration committees were quickly set up within the cotton, corn and coffee trade associations, to name but a few, in Liverpool and London. The London Corn Trade Association (LCTA), founded in 1878, was to play a particularly important role, arguably acting as ‘the benchmark model that was emulated by other professions in the following years and decades’.21 In particular, these trade associations encouraged the use of standard contracts, which became widespread, and not just in Great Britain.22 Because these standard contracts contained arbitration clauses, which specified that any dispute arising out of the contract would be finally settled under the rules laid down by the trade association, parties engaged in global trade had little choice but to submit their disputes to the arbitration mechanisms of the LCTA and other trade associations. This was one key reason for Great Britain’s place as a major provider of legal services through arbitration during the long nineteenth century and beyond.”
Of course, we should add to that the 1891 City of London Chamber of Arbitration, sitting at Guildhall in the City, comprising of members of the London Chamber and of the City Corporation. It was of course renamed the London Court of Arbitration in 1902 and relocated to the London Chamber of Commerce in 1905.
By the way, Mr Schinazi’s work is based on his SciencePol PhD thesis, which was supervised by the late, great, Dr Emmanuel Gaillard, meaning high praise indeed for London and the UK’s role in modern arbitration.
Back to John Alexander: two years after he was born, in 1889, the first formal international arbitration body – the Permanent Court of Arbitration – was formed. It was established by the first Hague Peace Conference under Articles 20 to 29 of the 1899 Hague Convention for the Pacific Settlement of International Disputes. It was formed in an attempt to stave off conflict that was likely to be met with gunboat diplomacy.
During that period, Mr Schinazi identified the two main groups driving international arbitration as:
… (i) merchants in trade associations, and (ii) the diplomats and statesmen who gathered at diplomatic conferences with the hope of settling disputes peacefully instead of resorting to war.
This was the world John Alexander grew up in – one of merchants and statesmen working to develop and, ultimately institutionalise, our modern international arbitration system through which to resolve commercial, investment and geopolitical disputes.
He was 17 when statecraft failed and World War I broke out in 1914. When World War I ended, he was 21.
That four year period of WWI reshaped Europe and the global north and set in play the precursor to our modern system of global governance and finance.
All that in half the time we have to halve our global GHG emissions.
Great change is possible in the period of time available, once we accept we have no alternative.
During the inter-war period, John Alexander was in his 20s and 30s and continued to witness transformative events in global governance and trade and investment. Already a member of the Chartered Institute of Arbitrators, it was from within this very community that he witnessed:
1919: Treaty of Versailles The Treaty of Versailles ends World War One and imposes heavy reparations payments on Germany.
1919: ICC Founded in the aftermath of the First World War when no world system of rules governed trade, investment, finance or commercial relations. Without waiting for governments to fill this vacuum, ICC’s founders acted on their conviction that the private sector is best qualified to set global standards for business. They called themselves “The merchants of peace.”
1920: First Meeting of The League Of Nations In Geneva, Switzerland, with the US notably absent, the Senate having voted against joining the League in November 1919. (Not unlike the COP25 last UN climate summit in Madrid in 2019.)
1921: Washington Conference US convened and attended by Britain, France, Italy, Belgium, the Netherlands, China, Japan, and Portugal, resulting in a massive naval armaments treaty.
1922: Mussolini is made Italian Premier
1923: ICC Court of Arbitration is formed, initially to deal with resolving post-WWI reparation claims.
1932: Final League of Nations Disarmament Conference 60 nations, including the US, but failure to secure any agreement, and organized disarmament remained an unaccomplished goal.
1938: The Munich Pact is Signed
1939: Spanish Civil War Ended Franco's dictatorship began.
3 September 1939: Britain and France Declare War on Germany
These were some transformative events.
The year that WWII began, John Alexander turned 42. He was already a 10-year veteran member of CIArb when the UK, Europe and the world, entered a new six year period of unprecedented turmoil and change in modern times.
An awful lot of change can happen in just six years.
John Alexander was almost 50 when WWII ended in 1945. A London city lawyer at the time would have been approaching retirement age. 1945 was near the end of what Mr Schinazi calls his second age of international commercial arbitration – the age of institutionalisation. That was to give way to the third age – that of autonomy from 1950.
At that time, John Alexander also bore witness to the global north’s attribution of WWII to it failure to deal with economic problems following WWI. Hindsight is of course a powerful thing.
Faced with the fall-out of WWII, faced with global economic instability, the small cluster of then global powers established the Bretton Woods system of global monetary management: the system that established modern rules for commercial and financial relations between the US, Canada, Western Europe, Australia and Japan. The Bretton Woods system of rules, institutions, and procedures regulate the international monetary system, and formed the IMF and World Bank (originally the International Bank for Reconstruction and Development). Although the pegging of the system to the USD was abandoned in 1971, those years of post-war reconstruction formed our modern international economic, trade and investment systems, institutions and norms.
The Bretton Woods system prioritised economic stability and political peace through an international cooperation to regulate national currencies in order to maintain fixed exchange rates between countries in order to facilitate international trade. This became the foundation of the post World War II free trade world – one of lower tariffs and, among other things a balancing of trade through fixed exchange rates that favoured our modern capitalist system. The objective: to reduce barriers to trade and capital flows.
This was the invention of central banking, fiscal stabilisation, an unprecedented opening of trade barriers and the beginning of exponential economic growth.
This central economic system would overlay the then existing system of international trade and investment, and emerging mercantile law norms, as implemented through international commercial arbitration.
Bretton Woods’ World Bank ultimately, some two decades later, gave us the ICSID Convention and ICSID itself, heralding a proliferation of bilateral investment treaties.
The post WWII aftermath also brought us the UN as the successor to the League of Nations. Its establishment instrument, the UN Charter, established the organization's objectives as maintaining international peace and security, protecting human rights, delivering humanitarian aid, promoting economic and social development and upholding international law. That, coupled with the World Bank and other regional development banks, heralded a period of investment by the global north into developing countries that was sustainable and would reinforce the period of global peace and security.
Not long after its formation, the UN gave us the New York Convention on the Recognition and Enforcement of Arbitral Awards.
And in the middle of all of these transformative changes, John Alexander, in 1952, was appointed President of this Chartered Institute of Arbitrators. Imagine the level of scholarly debate about Bretton Woods, the Marshall Plan, the UN Charter and UNDHR, the NY Convention, all heralding unprecedented change to the world of investment, trade and the law of the merchant or commercial law.
I would have loved to have been in those rooms. But I probably would not have been permitted entry.
Now, those game-changing instruments of the mid-20th century make no mention of sustainability or the environment, and certainly make no mention of the climate. That is despite the Swedish scientist, Svante Arrhenius, having discovered feedback loops that could accelerate climate change back in 1896.
The year before John Alexander was born.
Think about that: we have known about climate change for over a century. For John Alexander’s entire life and throughout the 5 decades since his death.
And for some decades, we have also known the cure.
But because we failed to act upon that knowledge, despite the science becoming clearer and clearer, we now find ourselves with eight years to reduce our emissions by half.
Eight years is twice as long as the duration of the First World War.
Eight years is two years longer than the duration of the Second World War.
Eight years is 127 years less than the amount of time that we have known about the problem.
For 135 years we have travelled the road of economic development and growth, with no regard for how development of the needs of the present generation has compromised the ability of future generations to meet their own needs.
With no regard for sustainable development.
So, this 2021st year AD, as negotiations wind down in Glasgow, we stand at a fork in the road. I wonder what John Alexander would have said if he stood with us at this juncture.
I expect he would point out that major transformative events can occur and have occurred in a few short years, and certainly less than eight. He witnessed that life does goes on and that we can and will adjust to change, however transformative. We as individuals, communities, professionals and members of the community of arbitration, will all adjust. I like to think he would also tell us that we can have the courage as individuals, a community and society, to step forward and embrace the choice that lies in the road ahead.
Robert Frost, in his 1915 poem, the ‘The Road Not Taken’, speaks of such steps. He says:
Two roads diverged in a yellow wood,
And sorry I could not travel both
And be one traveller, long I stood
And looked down one as far as I could
To where it bent in the undergrowth;
Then took the other, as just as fair,
And having perhaps the better claim,
Because it was grassy and wanted wear;
We have long stood and looked down the road of economic development and growth at all cost. We need to take the other and step forward into a sustainable future not just for ourselves but for those who follow.
The road taken in Glasgow rests in the hands of state negotiators, policymakers and legislators. We hope it is firmly the road to rapid decarbonisation, because that really is the only pathway that will not compromise the ability of future generations – our children and their children – to be able to meet their own needs. Certainly, the youth have been there, tirelessly for the last two weeks, reminding government negotiators that it is their future at stake, not ours.
But the road we take as individuals and professionals, and as a community that offers the world tools and services for international dispute resolution, is up to us.
And it is that road that I want to map for you for the remainder of this talk. I will explore how we might use our international dispute resolution tools to help achieve the Paris Agreement goals of climate change mitigation, adaptation and resilience building.
What we do next is a choice, but it is also not a choice. Because if we do not find a way to utilise all the tools in our collective arsenal to work together to achieve the Paris Agreement goals, we will find ourselves in a place of global conflict, violence and disputes that will make the two world wars of John Alexander’s lifetime seem minor.
And whilst our tools were developed in part by diplomats and statesmen who gathered at diplomatic conferences with the hope of settling disputes peacefully instead of resorting to war, the hope is that if we commercial dispute resolution lawyers use them wisely in the commercial investment context, then we will not need to deploy them for peacekeeping.
So our road ahead, “grassy and wanting wear”, looks like this:
First, our tools are already utilised in every aspect of the frontline of the implementation of those energy, infrastructure, industry, transport and land use projects that form the architecture of the existing high emitting system that we are transitioning out of.
Some of those investment agreements and contracts will need to be renegotiated or terminated in order for the many states and corporates who have made net zero pledges in Glasgow in the last few weeks to implement those pledges in the real economy.
Pledges by the finance sector, in particular, will have a resonating effect throughout the investment community. Banks, asset owners and asset managers have committed to aligning their investment, debt or equity, with net zero.
Already we are seeing successful claims against financial institutions in national courts where that is not being followed through or followed through quickly enough. One example is the McVeigh case in Australia against Retail Employees Superannuation trust. That case settled but led to a change in standards across the superannuation sector in Australia.
Standards setters are also holding those financial institutions’ feet to the fire, as well as the companies they fund. During this COP in Glasgow, the IFRS announced the formation of a new International Sustainability Standards Board (ISSB) to develop a new comprehensive global baseline of high-quality sustainability disclosure standards.
That means financial reporting standards will require climate and sustainability reporting. And those financing corporate activity will be able to see precisely what they are funding and whether or not that is aligned with their own net zero commitments.
Much of the real economy investment these financial institutions are funding is what is happening in our cases every day.
This rapid and deep transition away from our existing high emitting infrastructure and architecture will create uncertainty and uncertainty creates disputes.
At the same time, transition requires somewhere else for the money to go. Public and private sector finance is working hard to create the new bankable investments. Many are in new technologies and/or new and emerging markets. They are often high risk and lower yield than investors are accustomed to.
Higher risk and lower yield might be our inevitable future, but it is going to take some getting used to and we will see a lot of adjusting to different damages and loss models as we muddle our way through it all. As lawyers we have a lot of work to do, but so too do damages experts.
State and financial institution pledges – which have emerged from Glasgow at an unprecedented level and the latter to the tune of $130 trillion of private investment – will not be met unless investment proceeds in a very different way going forward.
To achieve the Paris goals, the systems that require transition are energy, infrastructure, industry and land use. All need to move from high carbon emitting activity to net zero emitting by 2050 or earlier – and 50% reduction within eight years.
That requires enormous investment in low carbon infrastructural architecture. It also requires a massive winding down of the existing architecture. All of which is bound up in contracts and commitments and, more often than not, commercial arbitration agreements. Many are underwritten by insurance, guarantees and investment protection agreements, legal instruments containing more arbitration agreements.
In order to achieve transition, and align international arbitration awards with the Paris goals, international arbitration counsel need to work with clients – states and corporates – to ensure that the relevant arguments are put in front of Tribunals. Ideally, both sides’ arguments would ultimately align with the Paris goals. Ideally the Tribunal would ask questions and direct proceedings in a manner that requires that to happen.
Let’s take, for example, a claim arising out of a state’s early termination of a coal fired power plant. The state may have introduced new legislation or regulation to enforce its Nationally Determined Contribution under the Paris Agreement and policy to phase out coal by 2030.
This is happening because last week 40 countries have pledged to phase out coal.
The current draft cover decision to COP26 includes language to that effect in relation to all states, as well as reference to phasing out fossil fuel subsidies.
Once fossil fuel subsidies are phased out, renewable energy for electricity is likely to be far more economically viable than oil and gas as a source of power. Expect further phase out to follow as states shore up energy security in alternatives. This won’t just be gas: expect also to see nuclear and green hydrogen, for instance.
So as our state phases out coal, it may terminate a PPP in accordance with its new law.
That new law may render the PPP void or terminable under its terms. But it also might not.
There may be a stabilisation provision in the PPP or perhaps a parallel investment treaty protecting the investment from changes in the operating environment that are inconsistent with the legitimate expectations of the parties as the existed at the time of the investment.
Pursuant to an arbitration agreement in the PPP or the treaty, state action taken to meet Paris commitments and goals may well fall to you for determination.
Your decision as arbitrator, counsel’s decision as to what arguments to run and how to run them, and the experts’ decision as to how they model the value of coal beyond 2030, are all within our control. And these decisions will have a decisive effect on whether or not we achieve the goals of Paris.
You see if this community continues to utilise its dispute resolution tools independent or in ignorance of what is happening in the industries and sectors we serve, we will hinder a global movement to transition and correct our path.
I am not asking the arbitration community to do anything radical here. At least not yet.
I am asking you simply to be aware of the transition and be aware that the cases you argue, opine on and decide, matter to the success of that transition. They are at the front line of it and your work will influence its speed and success.
So please don’t put climate change and the Paris goals out of your minds when the COP circus packs up and makes its way to Egypt for COP27 at the end of 2022. Stay on top of the subject and the effect of your work and how you use your dispute resolution tools day-to-day in the cases you are dealing with right now.
Secondly, systemic change requires a bit more than case-to-case awareness of and factoring in of climate change mitigation, adaptation and resilience objectives, expectations and commitments.
Our system of international arbitration, the legal, procedural and institutional structure within which we operate our dispute resolution tools, is somewhat harmonised and homogenous. We know one another, we work on trust and familiarity and we rely on our expertise developed over years of using our tools in a particular way.
Recall this system represents Schinazi’s third age of arbitration – the age of autonomy. The age where our system becomes its own self-governing set of rules and norms and precedent. The French have been the primary proponents of this concept.
The problem with creating an autonomous and self-supporting system of international arbitration is that it risks losing the flexibility that lies at the heart of the toolkit of ADR mechanisms at our disposal.
You may have heard already of the law of the instrument: the hammer will treat everything as a nail.
International arbitration, as it has evolved over the years, risks treating every case as a dispute requiring the same lengthy adversarial process culminating in a final and binding award.
But climate change disputes will be so much more complex, interconnected and systemic than that. And they will require both a more systemic and also a more flexible approach.
The disputes that lie ahead of us in transition to net zero are going to involve more imagination that that – not every case will be a nail.
The ICC report on Climate Change Related Disputes and ADR and Arbitration[2] considers this and points out that climate change related disputes often require non-lawyer expertise and also multi-tiered dispute resolution procedures, include dispute advisory boards through projects winding down high carbon emitting activity and winding up low carbon activity.
What the report did not discuss at any length was the role of truly alternative dispute resolution – at least to us and the users of our system. So, for example, indigenous peoples’ traditional conciliation practices and solutions need to be integrated with our systems of dispute resolution when investments encroach their lands, territories and natural resources.
A very senior development bank official told me recently about resettling spirits on the river Nile in order for a project to proceed. These are the sorts of challenges that we will face and need to resolve in order to access the lands, resources and territories required to ensure that this transition proceeds and is just.
A huge and deeply contentious aspect of climate change mitigation involves carbon offsets and carbon trading. As 5% of the world’s populations – indigenous peoples – steward 80% of the ecosystem and biodiversity, for us to reach our climate transition goals, we need to learn how to work with these groups on their terms not ours.
The indigenous peoples’ voices are a drumbeat throughout the COP negotiating rooms and corridors. The tens of thousands of peoples marching on the streets in Glasgow on Saturday were youth and indigenous peoples. If you listen to them, they are imploring us to listen to them and let them tell us how to steward their lands and resources. Because they have protected those resources for future generations for thousands of years. We have caused the harm we are now having to mitigate in just 70.
So in the process of resolving disputes, we need to give voice, platform and sounding to those voices. We have some precedent of this, but not perfect. The Abyei Arbitration, arising out of the Sudan Comprehensive Peace Agreement, was an arbitration to determine the lands of the nine Ngok Dinka chiefdoms in 1905.
As counsel for the southern Sudanese, I remind you that the dispute was determined by five senior jurists, two from the US, two from Europe and one from Jordan. None from Africa. Counsel teams were Anglo-European lawyers in their entirety, again with no-one from Africa.
I should add no women on the Tribunal and only one woman on her feet from each side during the hearing, in senior counsel teams dominated by men.
Thirdly, we need to start to think more creatively about the overlaps and interlinkages between our system of lexmercatoria and other legal systems, including public international law and national court jurisprudence.
Cases are being decided every week in national and regional courts and tribunals and claims are being brought in international fora.
A body of climate law is building and that law is relevant to the cases we are working on and deciding. We need to be aware of this growing body of jurisprudence and ensuring that our work and decisions properly reflect it where applicable.
If not, I suspect it will not be too long before we start to see NY Convention challenges against awards that are claimed to be inconsistent with states’ and international public policy on climate change. We have not seen it yet, but it is almost certainly a direction of travel.
And with so many of the cases that we see in international commercial arbitration involving public private partnerships somewhere in the project, or use of national resources or territory, it is likely to happen sooner rather than later. Especially in light of the massively ramped up commitments coming out of Glasgow this week.
Investment treaty arbitration is an even more obvious field for the integration of this emerging body of climate change law. Already most of the cases under the Energy Charter Treaty relate to renewables investments and changes in national regulation in response to changing climate policy. Cases under NAFTA include renewables, forests and offsets and emissions trading schemes. All of these investments are at the front line of the implementation of the Paris goals in the real economy. Insofar as there is an emerging body of climate change law that is applicable in those cases, it should be reflected in counsel’s arguments and in the outcomes.
Fourthly, according to the High Level Climate Champion for the UNFCCC, Nigel Topping, we need to push the boundaries even more and start to think about how we replumb the entire system of investment, financing and law.
This is not just in terms of process and procedure but also substantively. This is what I fondly think of as the experimental drugs. Not to alter our minds, but to alter our investment and governance systems.
One thing that has really struck me the past few weeks has been the drumbeat of indigenous peoples at this COP. They have their own caucus and platform in the discussions. And they are acutely aware that the natural resources that we need:
- for our nature-based carbon offsets and other solutions,
- from which we need to mine the new minerals and metals required to manufacture the millions of wind farms and photovoltaic panels and the uranium to operate the small modular reactors, and
- over which we need to construct our new alternative infrastructure for travel and production and transporting of food
are in their territories and subject to indigenous property right and protections under international law. Yet these communities are not holding the developed world to ransom. They are simply asking that we listen to them and allow them to maintain stewardship, as they have done for thousands of years, while we take what we need in a sustainable manner and without causing harm.
It really shouldn’t be too much to ask.
But it does require us to learn new things – traditional methods of sustainable development and protection of the environment.
I can’t tell you how this will play out and whether our developed world view of economic growth can ever give way to a structure that values people and the planet at least as much as profit, if not more. But I hope it can. And I especially hope that when we find ourselves involved in cases that put these non-pecuniary values before us, that we are able to give them the same respect that we give to income and profit loss.
Our forefathers have given us the tools for this already. The New York Convention, whilst containing a commercial exception, includes it as a non-mandatory opt in provision. So a New York Convention award dealing with non-commercial issues and relief is enforceable in those countries that did not opt in to the commercial exception. The United Kingdom is one such state, so our London seat is secure in this brave new world.
Finally, we need to step up as a community but also as individuals. Let’s not just switch off and go home and try not to think about it because this is all too hard and too depressing.
But if Covid 19 has taught us nothing else, it has taught us that the human mind is extraordinarily adaptable. We can learn to accept world of masks, testing, social distancing, lockdown in our communities and life, learning and work through a series of small rectangle boxes.
Let’s act with courage and look our future in the eye, acknowledge our reality and act accordingly. That is what makes us active citizens, active parents, active lawyers, active arbitrators and active arbitral institutions. Not activist. Simply, active.
And in these tense and difficult times ahead, I invite you to exercise a little consideration and kindness to one another. We can’t fight amongst ourselves over this; there is not enough time. We have to support one another and support our clients and our governments in this transition. We need to support those we represent and help them to implement the commitments they have made. They need us, their lawyers, to be their champions and supporters, not obstacles between them and the steps they have already committed to take, the road they have already chosen to travel.
I am proud to report that the CIArb is looking hard at what it can do to help our community develop tools, educate, capacity build and support, including through building resilience. The path before us is pretty clear. We just need to walk down it with our eyes wide open and in full understanding of the effect of our tools, and how we wield them, on the goals and commitments of the global community to meet the Paris goals of climate change mitigation – net zero GHG emissions by 2050 – and adaptation.
Robert Frost’s final stanza says:
I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I—
I took the one less travelled by,
And that has made all the difference.
You may already know that Frost’s poem was meant as a gentle joke to his dear friend and fellow poet Edward Thomas, who was by all counts a little indecisive. Ultimately, Frost’s poem seems to have influenced Thomas’ decision to enlist to fight in WWI, where he died within two months. Thomas’ words upon taking that decision were these:
It seems foolish to have loved England up to now without knowing it could perhaps be ravaged and I could and perhaps would do nothing to prevent it.Well, Lords, ladies and gentlemen, I put it to you that our climate is right now being ravaged and there is something each and every one of us can do to prevent it.
And that could make all the difference.
About Wendy Miles QC FCIArb
Wendy is a specialist in international arbitration and dispute resolution with a focus on private and public
international law.
With over 25 years of experience, Wendy has advised on international law matters and conducted arbitrations under all the major institutions and ad hoc. She has advised a wide range of multinationals, including corporates, sovereign States and State entities and multilateral State organisations.
Wendy has assisted clients across numerous sectors, including energy, natural resources, banking, insurance, financial services, gaming, manufacturing, pharmaceutical, licensing, telecommunications and construction. She has sat as arbitrator since 2005, as sole, co-arbitrator and chair under most major arbitral institutions. Wendy has been appointed by the United Kingdom to the ICSID Panel of arbitrators and ICSID Panel of conciliators effective from 10 November 2020.
In the field of climate change and finance, Wendy acts as global coordinating counsel to various major corporates in relation to climate change transition, disclosure, reporting, compliance and investment. She regularly advises investors and States in respect of climate related physical, transition and litigation risk. She works closely with a number of States in relation to climate transition regulatory structures to mobilise finance and formulate climate investment policy. She also works closely with the International Chamber of Commerce (ICC) and has represented it at the Conferences of the Parties on climate since 2015.
[1] Schinazi, M. (2021). The Three Ages of International Commercial Arbitration (Cambridge Studies in International and Comparative Law). Cambridge: Cambridge University Press.
[2] ICC Arbitration and ADR Commission Report on Resolving Climate Change Related Disputes through Arbitration and ADR, https://iccwbo.org/publication/icc-arbitration-and-adr-commission-report-on-resolving-climate-change-related-disputes-through-arbitration-and-adr/