The Impartial Judge,Climate Change and the Conflict of Laws

I. Introduction

This article reflects on how an impartial judge might approach disputes involving environmental, social and governance (ESG) issues, especially climate change. I build here on the first two of five Summer Special Course lectures ¹ in private international law (PIL) that I delivered at the Hague Academy in August 2023. I begin in section II by summarising what I said in those lectures, highlighting some concerns (stumbling blocks) which I identified at the time. I have since had further thoughts on those concerns and will now propose ways of surmounting them. In section III, I focus on Asia and comment on the extent to which the observations in section II are applicable to the Asian context. In section IV, I offer tentative thoughts, in light of sections II and III, on how judges can conduct themselves in ESG disputes relating to climate change.

At the outset, I should define what I mean by ‘climate change’ and what I take to be axiomatic for the purposes this article. By the expressions ‘climate change’ or ‘global warming’, I refer to the phenomenon whereby ever-increasing anthropogenic or human-induced emissions of greenhouse gasses (GHGs) are leading to an irreversible rise in the temperature of the earth's atmosphere. As a result, current weather patterns and the livelihood and even the existence of communities around the world are threatened. I believe that this is now a well-documented phenomenon. However, I appreciate that there continue to be many climate change deniers. This is not the occasion to debate with them. I will simply take it for granted that climate change is one of the greatest threats facing humanity today. From time to time, I shall refer to the Global North and the Global South. By the former, I mean to refer to developed countries, typically in the United States and Europe. By the latter, I mean to refer to less-developed countries, especially as found in Asia and Africa.

II. The Analysis in my Hague Academy Lectures

In my Hague Academy lectures, I identified three paradigm ESG dispute situations:

1. X domiciled in state SX claims to be the victim of adverse environmental effects due to the activities of CX company domiciled in SX. But X commences litigation in state SY against CY, the parent company of CX. X alleges that CY is responsible for the environmental wrongs done by CX to X. CY is domiciled in SY. X may or may not attempt to join CX to the proceedings against CY in SY. ²

To these paradigms, for the purposes of this article, I will add a fourth based on Client Earth v Shell plc and others ³ :

4. The NGO buys a few shares in CY, a multinational public company in SY. The NGO also helps X from SX to purchase a few shares in CY. In conjunction with X, the NGO then brings a shareholders’ action (in common law jurisdictions, a derivative action) against CY and CY's directors, for a declaration that the directors have failed in their duty properly to supervise CY's activities to ensure that CX (i.e., CY's subsidiary in SX) conforms with environmental standards under the law of SY.

My Hague Academy lectures took as their premise that X would prefer to litigate his or her claim for compensatory damages in a developed country SY in the Global North, such as the United Kingdom or the Netherlands. I reasoned that, although X suffered the relevant environmental damage in SX, it would frequently be legal for CX to operate as it does in SX which will typically be a developing Global South country. SX law will thus have permitted CX to operate as it does pursuant to the SX government's policy that modernisation and the economic betterment of SX citizens necessitate rapid industrialisation. ⁴

In the context of the first three paradigms, an impartial SY judge who is concerned about climate change may have to consider conflict of law questions such as the following:

What would be the outcome of the court applying a general private international law (PIL) analysis to the paradigm dispute?

Taking the questions in turn and focussing on climate change, the general PIL analysis raised by (1) would not be of much help. I remain of that view. In the three paradigms, CY would be domiciled in SY, so the court's jurisdiction is likely to be confirmed. Most countries will accept jurisdiction if a defendant is habitually or resident within their territory. The difficulty lies in the applicable law. In all paradigms, on the hypothesis that it will be permissible under the law of SX for CX to have generated the GHGs of which X complains, applying the conventional PIL rule that to be actionable the impugned conduct must be wrongful under the law of the place where the conduct took place (the lex loci damni), the SY court would find that no wrong had been done and will probably dismiss X's case summarily on that basis.

In some jurisdictions (such as Hong Kong, Singapore and Japan), a double actionability rule in tort will be applied with similar result. The relevant conduct (GHG emission) would not be actionable in SX, whatever the position may be under SY law. Neither will the common law Boys v Chaplin exception ⁶ to double actionability take matters further. The facts suggest a closer connection with SX, not SY. The conclusion that I came to in my Hague Academy Lectures was that, if redress is to be granted to a victim of climate change in any of the paradigms, it will have to be as a matter of the domestic law of the state in which an action is brought. PIL principles will be a hindrance to ESG-related litigation. Accordingly, in paradigms 1 to 3, the victim X and the NGO will have to demonstrate to the court of SY that they have (a) locus to sue and (b) an actionable case under the domestic law of SY.

On locus, there should be no difficulty for X, since he or she claims to have suffered directly from whatever wrong may have been inflicted by CX and its parent CY. As for an actionable claim, the cases to date ⁷ suggest that what X is seeking to do (notably in common law jurisdictions such as the United Kingdom) is to take advantage of the more generous rules for obtaining disclosure of documents under the civil procedural rules of developed countries such as the United Kingdom and the Netherlands (where pre-action discovery is not a common procedure). X would thus seek pre-action discovery in the hope that the documents obtained will show a link between the decisions taken by CY's directors in SY and CX's operations in SX. X's argument would be that CY's directors failed to comply with the more stringent duties of environmental due diligence under SY law when giving the go-ahead for CX to conduct its operations in SX. The punchline would be that such breach by CY's board of its duties under SY law enabled CX to act as it did and cause environmental harm to X.

Establishing Standing Will be More Difficult for the NGO ESG litigation in SY will almost certainly be a marathon struggle, with the prospect of multiple appeals on interlocutory matters. The victim X will lack the resources to fund such litigation alone. It will therefore be important for X to have the support and funding of an NGO. But can the NGO itself join in X's litigation as an interested party? On locus, NGOs will commonly claim to represent the citizens of SY and to be a voice for the latter's concerns over the detrimental impact of GHGs worldwide, including SY. Some jurisdictions will allow NGOs to be joined as a party on that basis. Others will not, as NGOs will be characterised by defendants as busybodies, bent on using the court to publicise their environmental agenda. That (it will be said) constitutes an abuse of legal process.

Nor will it be apparent what the NGO's cause of action is supposed to be. It will not have suffered any damage from the alleged wrong. Instead, it will presumably be seeking an injunction or declaration as a remedy. For example, it might argue, as representative of its constituency, for an order that CY perform its duty and ensure that CX observe the environmental standards stipulated by SY law insofar as CX's operations in SX are concerned. That could be problematic as an argument. Many jurisdictions are unlikely to accept that the NGO is representative of the general population and at best may merely allow the NGO to submit an amicus brief to the SY court hearing X's complaint.

This difficulty has led to NGOs experimenting with creative means of suing CY or CY's directors. The fourth paradigm has been introduced here to cover this possibility. The fourth paradigm is an example of an attempt to fit climate change litigation into the format of a derivative action. In the Client Earth v Shell case on which paradigm 4 is based, Client Earth (an NGO) bought 27 shares in Shell, a public listed company. As Shell shareholder, Client Earth then applied for the court's permission ⁸ to maintain a derivative action against Shell. Client Earth alleged that Shell's directors had failed in their duty to take reasonable measures and strategies to mitigate the climate risks inherent in Shell's business and such failures had adversely impacted on Shell's profitability. Client Earth accepted that the cause of action belonged to the company. But since there was no prospect of Shell's directors causing Shell to sue the board for the alleged wrong, it was appropriate (Client Earth submitted) for the court to allow Client Earth to bring an action in Shell's name against Shell's board. Client Earth sought a declaration that the directors had failed to perform their duty and a mandatory injunction compelling them to do so.

Trower J initially dismissed Client Earth's case without an oral hearing and later, on Client Earth's application for reconsideration, after an oral hearing. He did so on the following bases:

It was for Shell's directors to decide in good faith how best to conduct the company's business in the best interests of the body of its shareholders. While the impact of Shell's operations on the community and the environment was a factor for Shell's directors to consider in exercising their duties to the company, Client Earth had failed to establish a prima facie case that the directors had acted irrationally in the way that they took that factor into account.

A lesson that I draw from the case is that judges, even judges sympathetic to the environmental cause, will be reluctant to permit established civil procedures to be used for novel purposes which were not contemplated when the procedures were established. I suggest that is the principal hurdle with paradigm 4, namely, that the method adopted is too clever by half. As happened in Client Earth, the attempt to use special civil procedures may find the NGO artificially (and so unsuccessfully) tailoring its case to the requirements of the special procedure. I suspect that, if climate litigation by NGOs is to have an impact, NGOs may be better off mounting their action in a more straightforward and transparent fashion, as representatives of a significant sector of the public. ⁹

On question (2), my understanding of ‘universal jurisdiction’ and ‘forum of necessity’ is that courts only resort to the doctrines for the purpose of founding jurisdiction where there is no other forum before which a victim can obtain relief. A court will exceptionally accept jurisdiction in such case and hear a victim's case substantively as a matter of justice or necessity. International law will then apply. By way of example in my Hague Academy Lectures, I mentioned the Tallinn Resolution ¹⁰ which advocates for universal jurisdiction in cases of ‘serious crimes under international law such as genocide, torture and other crimes against humanity, and war crimes’. It is doubtful that the generation of excessive GHGs has achieved the status of a ‘serious crime under international law’ on the same level as ‘genocide, torture and other crimes against humanity, war crimes’. Nor is it apparent that international law has gone so far as absolutely to prohibit the excessive generation of GHGs. I therefore doubted in my Hague Academy Lectures that universal jurisdiction or forum of necessity would be of assistance. I remain of that view.

At the end of my second Hague Academy Lecture, I alluded to the proposal of a ubiquity principle in Article 6a to Rome II (EC Regulation 864/2007). ¹¹ Under the proposal, in respect of:

civil claims for human rights violations within the value chain of an undertaking…, the law applicable to a non-contractual obligation arising out of the damage sustained shall be [the law of the place where the damage occurred], unless the person seeking compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred or on the law of the country in which the parent company has its domicile or … the law of the country where it operates.

Question (3) shifts the focus from the application of conflict of law rules to that of bolstering the cases of X and the NGO by reference to human rights law. On the assumption that X and the NGO have locus to sue CY, can a human rights analysis help in establishing a right of action in SY against CX and CY? In answer, I referred the decision in Arjun Gopal v Union of India and others. ¹² There, the Indian Supreme Court held that it was ‘the duty of the State to ensure a healthy environment in terms of Article 48A of the Constitution of India as well as the duty of the citizens to ensure the same under Article 51A(g) of the Constitution’. Consequently, under Indian law, there is a basic human right to a healthy environment. My concern at the time of my Hague Academy Lectures was whether such right could be generalised. For example, by Article 14 of the Indian Constitution, ‘[t]he State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India’ (emphasis supplied). What is the position for acts done outside India? I was unsure of the extent to which the right to a healthy environment may be regarded as universal and (even if so) whether it could be asserted in SY for damage sustained somewhere else (SX).

More recently, Justice Janak de Silva of the Sri Lankan Supreme Court has drawn my attention to (a) the Resolution which the UN Human Rights Council adopted on 8 October 2021 and the UN General Assembly approved on 28 July 2022 ¹³ and (b) his own decision in Ministry of Environment, Energy and Climate Change and others v Woodlands Limited and another. ¹⁴ The Resolution recognises ‘the right to a clean, healthy and sustainable environment as a human right’ and notes that such right is ‘related to other rights and existing international law’. Citing Ministry of Environment v Woodlands, Justice de Silva went further in his judgment, suggesting that such right is ‘one of the fundamental, if not the most fundamental right of a human being’. ¹⁵ This is because: ¹⁶

[n]one of the myriad of other fundamental rights, including civil and political rights, can be meaningfully exercised by a human being in the absence of a clean and healthy environment which can sustain life.

Question (4) is specific to climate change disputes. The problem is that, given our present state of scientific knowledge, it may not be possible to establish to the requisite standard of proof required by a court (usually, ‘but for’ causation) that adverse effects suffered by X in SX were due to GHGs generated by CY in another country (SY). I dubbed this problem the ‘evidentiary gap’. Like many others, ¹⁷ to deal with the evidentiary gap, I suggested resort to the no harm and prevention principles. Under the former principle, a country must not cause environmental harm beyond its territory. Under the latter principle, a country has a duty to prevent activities within its territory from causing environmental harm outside its territory. Accordingly, if there is evidence that (a) severe environmental effects could result from certain conduct and (b) the court is not satisfied that sufficient mitigation measures have been taken, a judge may enjoin a person from engaging in the conduct. This would be the case even if a plaintiff cannot demonstrate on the balance of probability that environmental harm has occurred or will occur due to the relevant activity. I proposed in my lectures that the more severe the potential adverse effects of the impugned conduct, the lower the standard of proof that the court might require.

There was, however, a stumbling block which at the time of my Hague Academy Lectures I could see no way of circumventing. The obstacle was that the prevention principle looks to the future, not to the past. At most, the court can issue a quia timet injunction as a precautionary measure, to forestall the possibility of environmental harm in the future. The principle does not enable a court to order compensation for harm already suffered since such loss can no longer be prevented. The prevention principles cannot bridge the evidentiary gap as far as the payment of damages or compensation for past wrongs is concerned.

However, since my lectures, Professor Petra Minnerop ¹⁸ has introduced me to the use of probabilistic event attribution (PEA) in climate science. Through PEA, it might be possible (a) to link the quantity (E) of human-generated GHGs with the probability of general ¹⁹ and specific environmental impacts (respectively, I_g and I_s), and (b) to derive a confidence level (high, medium and low) for the result obtained. Where PEA indicates with a high confidence level that E has increased the risk of an I_g or I_s, it becomes possible to attribute liability for the damage suffered by reason of I_g or I_s to CX or CY in proportion to their contribution to human-generated GHGs over a sustained period. The attribution of liability by reference to a person's contribution to E and the enhanced risk of I_g or I_s would be in line with the approach to causation adopted by the English House of Lords in relation to asbestos exposure in Fairchild v Glenhaven Funeral Services Ltd. ²⁰ Consequently, while PEA is still in its infancy, the methodology points to a way of overcoming the evidentiary gap, including in connection with the award of compensatory damages by a court.

In short, the analysis in my Hague Academy Lectures was far from sanguine. In each paradigm, there are significant hurdles to overcome. From the viewpoint of the victim X and the NGO, the achievement of any positive outcome will be a long uphill struggle fraught with disappointment and setback along every step of the way. From the viewpoint of an impartial judge, there will be the perennial dilemma. From the discussion in this section, there are means of surmounting the difficulties posed by climate litigation. But how activist should a judge be? How far should or can a judge descend into the arena to further a pro-environment jurisprudence? I concluded my Hague Academy Lectures by saying that judges could not be expected to act on their own. Even if environmental standards have been legislated, judges will need counsel to put forward arguments for and against resort to the techniques (for instance, human rights analysis and PEA) to attribute (or not) liability for an apparent failure to implement the same. Judges can only react to such arguments and determine the extent to which they are persuasive. ²¹ If the arguments are not put forward, judges are limited in the extent to which they can nudge counsel to address them on how environmental laws might be applied. As will be seen from section IV, I may have been too circumspect in such conclusion.

III. The Analysis From an Asian Perspective

The paradigms canvassed in section II assumed that X from a developing country brings his or her action in a more developed country SY. Some Asian countries (e.g., Japan and Singapore) are highly developed with domestic laws imposing strict and comprehensive ESG standards on companies situated within their territory. But many Asian countries are still developing. ²² Their governments may be willing to permit subsidiaries of multinationals to operate factories and plants within their territory in return for substantial investment. The fact that the factories and plants will lead to significant GHGs may be regarded as an acceptable quid pro quo for rapid economic development. The governments might highlight that the Global North benefitted from significant economic growth during the 19th and 20th centuries, despite the associated deterioration of the environment wrought by increased pollution. In those premises, it will only be equitable (the argument runs) for the under-developed Global South to be given a wide latitude in how it pursues growth today. The Global North should bear the costs of curtailing carbon emissions, while Global South countries should have a freer hand in the name of eradicating poverty and catching up with the Global North.

Consider SX as being the latter type of Global South Asian country. As noted in section II, an initial hurdle for X suing CX in such a state, would be that CX may not have committed any wrong under the law of SX. In this scenario, the difficulty will only go away if SX changes its law and tightens its environmental standards. Otherwise, an SX judge, whether he or she believes that climate change is a serious global threat, will have no choice but to apply the law of SX and exonerate CX of blame in respect of climate damage suffered by X. The scenario just posited is an extreme one, however, because Asian countries today comprise a spectrum of environmental regulatory regimes. Several Asian developing countries now impose at least some standards of care which factories or plants must observe. ²³ Such standards of care open the possibility of X submitting before an SX judge that, in failing to meet a duty of care imposed by SX law (e.g., taking all reasonable measures to mitigate environmental pollution), CX harmed X's wellbeing and livelihood and should compensate X for the harm caused. ²⁴

Assume that it is possible to bring such an action against CX. What are the prospects of joining CX's parent CY in SY as a proper and necessary party to the proceedings. Some Asian jurisdictions (e.g., Hong Kong, Singapore and Malaysia) allow the joinder of an overseas party based on subject matter jurisdiction. But CY could deny having anything to do with the operations of CX and, even if joined as a party to the proceedings against CX in SX, the parent CY may refuse to take part in those proceedings. If judgment is obtained against CY, it will be doubtful from a conflicts of law lens whether such judgment can be enforced against CY's assets outside of CX. This is because CY did not submit to the SX court's jurisdiction and subject matter jurisdiction is not so far widely accepted as a ground of indirect or international jurisdiction.

Even if the PIL problems in also suing CY in SX may be surmounted, there could be political and economic consequences for SX. If the SX judiciary assiduously holds foreign parents (despite their non-appearance in proceedings) and local subsidiaries to tough ESG standards, there will be an appreciable risk that the companies will simply decide to phase out their operations in SX completely. That could have a serious impact on the employment rate and GDP in SX.

In Arjun Gopal, the respondents pressed the argument that, if the Indian Supreme Court restricted fireworks in Delhi during Diwali in the name of curtailing pollution, the result would be ‘extreme economic hardship’, ‘loss of substantial revenue’ and ‘unemployment to lakhs of persons’. The court nonetheless held that, when striking a balance between the right to environmental wellbeing and the economic effect of a protective measure, the latter consideration should prevail. Such a robust conclusion might more readily be reached in the context of the vibrancy and dynamism of the economies in India and China. In contrast, the judge in poorer, less developed Asian countries could well find it difficult to reach a similar conclusion and may prefer to duck the issue. For instance, the court can decide to leave it to the executive and the legislature to determine how far activities which contribute to GHG should be curtailed and to pass laws accordingly.

In Asian countries where rigorous environmental due diligence standards have not yet been enacted, climate change litigation will have to rely on the general law of tort. The allegation will be that defendants in the position of CX or CY failed in their duty to X to take reasonable care. As discussed in section II, human rights analysis can help. But there will (among others) be challenges in proving a causative link between the GHGs about which complaint is made and the damage suffered by the victim X. A judge in our hypothetical underdeveloped Asian SX will probably have little experience in dealing with climate-related civil disputes and only rudimentary knowledge (if any) about environmental science and law. Faced with competing submissions from counsel as to how X's claim should be dealt with or not under the general law of SX, how is the SX judge to decide?

Recognising those circumstances, it would make sense for the strategy being pursued by NGOs in Global South countries in Asia to differ from that which adopted in the developed Global North. ²⁵ In the latter, as exemplified by Client Earth v Shell, NGOs have pro-actively sued companies for non-compliance with enacted regulatory and due diligence standards relating to the environment. However, in Asia, NGOs have focussed on assisting judiciaries to run workshops for judges on the potentially harmful effects of GHG emissions and how courts might respond to such threat. The strategy concentrates on judicial education and capacity-building in environmental matters as opposed to aggressive activism through the bringing of lawsuits. Well-funded NGOs may even offer to use their own financial resources to assist judiciaries to organise such workshops, including the hiring of premises and the flying in and accommodation of leading expert speakers from all over the world.

The difficulty with this approach for Asia is that judges should not merely be impartial and independent. They should be perceived to be so. One cannot lobby judges to take a particular stance in a dispute. That would be improper. It would inevitably lead defendant companies to accuse judges of apparent, if not actual, bias and to demand that judges recuse themselves from hearing a case. I do not believe that it is wrong for judges to attend environmental workshops at their own expense, particularly for the purpose of informing themselves of the latest developments in environmental science and law. The problem arises if the workshops do not present a balanced view, but instead push an environmental agenda in a lopsided manner. There is a risk of the latter happening where an NGO is deeply committed to its cause and organises everything for a judiciary. The safest option (I suggest) would be for NGOs to leave the organisation of such workshops to Asian judiciaries using their own funding, while volunteering to provide speakers on specific topics for the workshops organised. In that way, judiciaries can independently organise the workshops around speakers with varying viewpoints. Within their designated sessions, the NGOs speakers can of course be as passionate as they wish about their subject.

IV. Conclusion – Suggestions on What a Judge Can Do

Based on the discussion in sections II and III, I set out five suggestions on what an impartial judge (whether in Asia or elsewhere) can do when faced with climate litigation.

First, the battlefield in court is likely to be over the application of domestic law to the facts. A PIL analysis applied in isolation will likely lead to a summary dismissal of a plaintiff's case. That is unsatisfactory. It avoids dealing with the real issues underlying a climate change dispute. In other words, climate change is a global problem that affects all jurisdictions. Judges should therefore be sensitive to the possibility that what is being sought by a victim X or by an NGO is the application of domestic law and that a PIL analysis may not be apposite. On standing, NGOs may be representative of a significant portion of the domestic and worldwide population. They should at least be given an opportunity to be heard, even if only through the filing of an amicus brief. On pre-action discovery, provided that an application does not constitute a fishing exercise, specific disclosure can be readily granted. Discovery will not be a fishing exercise if there is prima facie evidence connecting a CX in SX with a CY in SY. What constitutes prima facie evidence may reasonably differ from one judge to another. But in the paradigm situations discussed, the judge should bear in mind that CY is likely to be in possession of potentially relevant documentation to which X and the NGO will not normally have access.

Second, I believe that the judge can and should be mildly activist. By the qualification ‘mildly’ I mean, that the judge must not be embarrassed by his or her sympathies with the environmentalist cause. Thus, in cases with an environmental angle which come before a court, judges should not hesitate to invite counsel to address the bench on matters such as the following:

Whether there is a human right under domestic or public international law to a healthy environment and (if so) with what consequence in the application of the domestic law of negligence and the duty to take reasonable care.

This means that counsel must be prepared. Counsel's ability to deal with questions along the lines suggested, pre-supposes that counsel have the requisite background in environmental science and the law. As a corollary therefore, judiciaries should encourage law schools and law societies to arrange courses where law students and lawyers can obtain the necessary learning. Counsel can then better inform judges in their submissions of the real issues and interests at stake. Thereafter, having heard counsel's submissions and evidence in support of their respective cases, the judge must rigorously evaluate the same. Beyond that, I do not think the judge can go in his or her activism, as that could be tantamount to descending into the arena and would give the appearance of bias. It cannot be a foregone conclusion that a pro-environment stance will prevail in litigation.

A concrete example of judges balancing among ‘mild activism’, analytical rigour and judicial restraint may be found in the Milieudefensie appeal judgement. ²⁶ There, while allowing Shell's appeal against the first instance decision of The Hague District Court, the court maintained that Shell had a duty ‘to counter dangerous climate change, even if this obligation is not explicitly laid down in (public law) regulations of the countries in which the company operates’. ²⁷ However, after an exhaustive consideration of the evidence, the court concluded that Milieudefensie had failed to show that there was ‘an impending violation’ of Shell's obligation to reduce scope 1 and 2 GHGs. ²⁸ On scope 3 GHGs, the court found on the evidence that Shell ‘can meet the obligation to reduce its scope 3 emissions by a certain percentage by limiting the resale of fossil fuels purchased by Shell from third parties’ and ‘it had not been established … that downsizing the resale activities of Shell Trading will lead to a reduction in CO2 emissions’. ²⁹

Third, judiciaries should be wary of accepting funding from NGOs for the conduct of capacity-building workshops on environmental litigation. Workshops of that nature should certainly be organised. But, to avoid any hint of apparent bias, judiciaries should take it upon themselves to set up such workshops. They may invite NGOs to recommend and provide speakers for the workshops organised. But judiciaries should strive to strike a balance among the views presented at workshops in which NGOs provide speakers. Where the judiciary in a state SX lacks resources, it may be that environmental workshops will have to be jointly organised with better-resourced judiciaries within the region. For instance, more developed economies such as Singapore may take the initiative to organise workshops in conjunction with the judiciaries of other ASEAN jurisdictions.

Fourth, in the future courts will almost certainly face applications for the setting aside of arbitral awards or the refusal of recognition and enforcement in connection with foreign awards and judgements on the ground that the awards or judgements are contrary to the receiving state's environmental public policy. It will therefore be imperative that workshops on climate litigation organised by judiciaries grapple with the question of what their state's environmental public policy is supposed to be.

Fifth, I have suggested in section II that NGOs should not be overly clever in their attempts to found locus. Nonetheless, I have sympathy with the view that, as times move on, judges should not be afraid to innovate and take a closer look at long established special procedures (such as the derivative action) and ask whether those procedures are sufficiently flexible to enable the bringing of environmental-related actions.