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? 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: 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: 

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