Thursday, October 23, 2014

How countries could facilitate private law compensation for climate change

Following the model of the Jewish Claims
Conference is one of many ways private
law can facilitate climate change compensation
(Image: by Arivumathi
How countries could facilitate private law compensation for climate change

In the previous blog post, we noted that countries hosting victims of climate change could modify their law to facilitate climate change damage compensation by court litigation. Which are the means that climate change victim countries could take to increase the likelihood of effective private law climate change damage compensation? Claimer.org has so far identified the following means which are mostly under the full sovereignty of each country:

  • Reducing the burden of proof for damages, causality and fault,
  • Establishing strict liability in addition to fault based liability,
  • Establishing joint and common liability (instead of proportionate liability, meaning that one tortfeasor is liable for the entire damage and must search for refunding with other tortfeasors),
  • Establishing the right to sue via class actions,
  • Empowering private associations to sue companies on behalf of the private climate change victims, following the model of the Jewish Claims Conference which was authorized to sue on behalf of the victims of the Nazi persecution without being formally mandated by them individually, and
  • Empowering the state or a specialized state agency to sue companies on behalf of the private climate change victims (like under the U.S. parens patriae theory or similar concepts, see Hare, Daniel (2013) "Blue Jeans, Chewing Gum, and Climate Change Litigation: American Exports to Europe," Legislation and Policy Brief: Vol. 5: Iss. 2, Article 4. Available at: http://digitalcommons.wcl.american.edu/lpb/vol5/iss2/4.

Claimer.org has cited manifold examples for countries which have, by tradition, the first five of these positive elements in their private law, see our blog posts on the various countries.

Are these means also sufficient for ensuring that the victims of climate change get compensation from a certain climate damaging company? The answer to this question depends inter alia on the possibilities for enforcement and thus on two further questions:

  1. Does the damaging company have assets in the country of the court ruling? If yes, enforcement is relatively easy.
  2. Do other countries/jurisdictions where the company has assets recognize climate damage compensation court rulings according to their rules on international private law? 
Here with the second question, we end-up in an extremely complex field in which factors of the court country intermingle with factors of the enforcement country/countries. To make a proper assessment, substantial legal research would need to be undertaken. Pending this research, it might be advisable for victims of climate change to use private law against companies in countries where those companies have assets and where there are good chances for success.

See again our country and region specific blog posts: 




Friday, October 17, 2014

Canadian big five possibly liable for 2.4 billion USD per year via foreign jurisdictions

 the five biggest Canadian oil and
gas companies could be held liable
for 2.4 billion US-Dollars 
The Canadian Centre for Policy Alternatives and the West Coast Environmental Law Foundation claim, in a study elaborated by two of their staff, that the five biggest Canadian oil and gas companies could be held liable for 2.4 billion US-Dollars per year due to their contribution to climate change. The two Canadian centers assume that there are manifold legal avenues to claim compensation for climate change damages. Climate change damages can be observed around the globe. Therefore the law of many different countries can apply, not just the Canadian law. Furthermore, the countries concerned by climate change may even adapt their law to facilitate climate change litigation in the same way as some Canadian provinces did for tobacco litigation. Once a judgment has been obtained outside Canada, enforcement might take place in Canada as well, say the authors.

Comments:
It seems that the West Coast Environmental Law foundation has started to engage in a more comprehensive program promoting climate change compensation by civil law litigation in an international context. To our knowledge, it is the first medium size NGO to do so. Claimer.org has advocated this approach for many years already, hoping to promote a game change from a purely national perspective to a global one. The study contains many references that demonstrate the viability of the international approach. This is the first merit of the study. The second consists in drawing the attention to the possibility of countries threatened by climate change to modify their private law in a view of climate change litigation, and therein namely compensation claims. Claimer.org investigates this issue in the following blog post.

PDF: https://www.policyalternatives.ca/sites/default/files/uploads/publications/National%20Office/2014/10/Payback_Time.pdf

Related: Read more about Canadian Environmental law, and other North American Law with regards to climate change litigation.

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