Herbert Smith Freehills - SMU Asian Arbitration Lecture 2022

Human Rights, Environmental and Climate Change Law in the Substance and Procedure of International Arbitration

SYNOPSIS

Inter-State, investor-State, and commercial arbitration in recent years has increasingly wrestled with the complexities of human rights, environmental, and climate change law and their impact on the substance and procedure of international arbitration. These areas of public law are more frequently asserted by parties as part of the corpus of applicable law to a dispute, often recognizing the role of human rights law, environmental law, and climate change law as part of either existing or changing regulatory frameworks that ultimately bear upon the ability of a sovereign State or non-sovereign party (e.g. juridical entities such as corporations, local government units or federal sub-units of States, individuals, or groups) to perform legal obligations under contract or treaty.

These expansive areas of public law affect both the substance of jurisdiction and merits arguments in claims under arbitration, as well as the defenses marshaled against claims filed under arbitration. The substantive effects of these areas of public law being asserted by parties also necessarily implicate significant questions of procedure in international arbitration, especially where the lex arbitrii in some jurisdictions recognize the high importance of these areas of public law to mandatory public policy concerns read into every contract.

Procedure could also be impacted with: 1) the different expectations of expertise required in the composition of arbitral tribunals; 2) the appropriateness of the design of any evidentiary procedures in any arbitration involving direct or indirect allegations of violations of human rights law, environmental law, and/or climate change law; 3) the nature and role (if any) of non-disputing parties or amicus curiae in such disputes; and 4) the responsiveness of provisional or interim measures and reparative measures issued in arbitral awards to disputes that generate broader social and environmental consequences for disputing as well as non-disputing parties.

This Lecture will map all of these affected areas of substance and procedure for inter-State, investor-State, and commercial arbitration, and conclude with specific normative recommendations on where international arbitration has to adapt, and where it has to stay the course, despite (or precisely because of) the evolutive nature of human rights law, environmental law, and climate change law and their growing presence in international arbitration disputes.

PROGRAMME

GUEST OF HONOUR

Ms Daphne Hong
Solicitor-General
Director-General, International Affairs Division
Attorney-General’s Chambers

KEYNOTE SPEAKER

Prof Diane Desierto
Professor of Law and Global Affairs
University of Notre Dame

PANELLISTS
 

Mr Antony Crockett 
Partner
Herbert Smith Freehills

Ms Gitta Satryani (Moderator)
Partner
Herbert Smith Freehills