Monday, October 28, 2013

Relaunch the Kivalina case outside the U.S. - Why U.S. attorneys should enlarge the playing field of climate change litigation

The Alaskan Island of Kivalina sinking because of rising
sea level, while the U.S. Supreme Court does nothing
U.S. attorneys were the worldwide environmental law pioneers by suing CO2 emitting industries for compensation. Almost all “real” cases on compensation for climate change damages took place in the U.S. Despite excellent preparation and documentation of damages, these lawsuits had no success so far, the most famous of which being the Kivalina v. ExxonMobil case. And prospects for success look rather dire at the level of the nation state. A very detailed analysis about the Kivalina case can be found here. In response thereto, U.S. attorneys are now turning to States Law of the U.S. This is an understandable strategy. But is it the most promising?

Alternatively, U.S. attorneys could enlarge the playing field by investigating legal possibilities for their clients in other jurisdictions outside the U.S. has investigated legal possibilities for climate change compensation worldwide. In absence of real cases on climate change compensation, it did so by reviewing available civil law publications and by analyzing the civil law codes.

At we applied mainly two criteria when evaluating jurisdictions:
  • Likelihood of negligence being assumed for climate damaging industries;
  • Likelihood of joint and common liability being assumed (proportionate compensation is hardly of any interest to victims of climate change as no company individually contributes more than 2 % to the overall CO2 emissions; and even if joint and common liability doesn't get accepted in climate change cases, states with a joint-and-common-liability tradition are certainly more open to intermediate theories).
In addition to these two main criteria, we at highlight specific elements on this blog playing against or in favor of successful climate change compensation lawsuits, such as special rules on the burden of proof or on class actions.

The picture gained from reviewing the publicly available sources and civil codes is the following:
  • According to publications specialized on climate change compensation, comparatively good chances exist for obtaining climate change compensation in India and in Brazil. According to our investigation of the Brazilian Civil Code, Brazil is indeed interesting in so far as it is particularly generous as to the level of negligence required and even establishes strict liability. However, it is not sure whether Brazilian courts would stipulate a joint and common liability for CO2 emitting industries.
  • We also has also investigated and wrote in this blog about the Civil Codes of Mexico, Argentina, Uruguay, Venezuela, Peru, Colombia, Ecuador, and Chile. In Mexico, Argentina, and Uruguay, there are no chances for success. But in Venezuela, Peru, Colombia, Ecuador, and Chile chances for success look astonishingly good. Furthermore, Colombia, Ecuador and Chile do recognize class actions.
  • In Europe and Australia, chances for success (both according to literature and's own investigation) are not better than in the U.S. Quite evident dogmatic obstacles can be identified for almost all states investigated. But there are two exceptions: the Netherlands and Sweden. Both states have a joint and common liability system. And both states have relatively low hurdles for demonstrating negligence. Furthermore, the law of the Netherlands seems to recognize statistical evidence for causality – this is anything but granted in the European context. In Sweden, there is the possibility to launch class actions – very much an exception on the old continent.
Going forward
What would need to be done if a U.S. attorney reading this article wished to check out possibilities in Latin America, Sweden or the Netherlands?

In the case of Latin America, suitable defendants have to be identified and the international private law to be examined in a view of these defendants: does the international private law of the respective country provide for the possibility to sue the defendant in relation to a damage that occurred in the U.S. and for a claimant with residence or place of business in the U.S.? is confident that the answer will be positive for defendants causing CO2 emissions in the respective Latin-American state. It is a common principle of international private law that the place of the tort action is, regardless of the place of residence or business, recognized as forum, and Articles 167 and 168 of the Latin American Convention on International Private Law (see extract below) look very much as abiding to this principle. It is less likely (but not excluded either) that some Latin-American states are a forum for more complex situations. E.g. it is to be investigated if in these states a company can be sued when its mother or daughter company caused damages by activities outside the very Latin-American state.

Extract of the Latin American Convention on International Private Law
Spanish originalEnglish translation
Art. 167. Las (obligaciones) originadas por delitos o faltas se sujetan al mismo derecho que el delito o falta de que procedan.Article 167. Those (the obligations) arising from crimes or offenses are subject to the same law as the crime or offense they come from.
Art. 168. Las (obligaciones) que se deriven de actos u omisiones en que intervenga culpa o negligencia no penadas por la ley, se regirán por el derecho del lugar en que se hubiere incurrido en la negligencia o la culpa que las origine.Article 168. Those (the obligations) arising from acts or omissions involving fault or negligence not punishable by law are governed by the law of the place in which incurred the negligence or fault that caused them (the obligations).

For the Netherlands and for Sweden, has established some documentation that might help to find suitable defendants. The international private law of these states, harmonized by European Union law, provides for the possibility to sue, regardless of the place of residence / business of the claimant or the place of damage, provided that the defendant contributed to the damage by action on the territory of the European jurisdiction or that he has his place of business therein. See the respective section on “Forum” in this article on the Netherlands.

To conclude: It would be regrettable not to use in other jurisdictions the tremendous pioneering investment made by U.S. attorneys in the field of climate change litigation. Climate change, being caused by activities of companies around the world, offers many more possibilities for litigation than the one targeted by U.S. attorneys so far: U.S. victims against U.S. polluters under U.S. law. A thorough investigation of the civil law and the international private law of presumably favorable states and a careful selection of defendants in these states might pave the way for successful lawsuits in other parts of the world; and finally for compensation so much expected by the U.S. victims of climate change. To be provocative: even the Kivalina case could be relaunched in a Latin-American state where the defendants have or had business activities.

Would Latin-American courts dare to impose substantial compensation obligations onto big business? Not necessarily, but some do, see the Chevron case in Ecuador! This is admittedly also a case in which corruption plays a role. But corruption is not much of a topic in many other Latin-American states and almost not at all in the Netherlands or in Sweden


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