The Role of International Commercial Arbitrationin Mastering Climate Change Disputes: Initiatives,Advantages, and Challenges

The number of disputes relating to climate change, and the embedded concerns of environmentaland energy law, is growing rapidly. Increasingly, corporations and other non-state actors areparties to such disputes. This article analyses in detail the multifaceted types of disputes involvingbusinesses, as well as the responses by international arbitration institutions. After highlightinghow international commercial arbitration can resolve existing limitations in the adjudication ofclimate change-related disputes, the authors discuss such specific challenges as the consent of theparties, confidentiality of arbitral proceedings, and public interest restrictions. Identifying thepotential for optimization, the authors argue that arbitration institutions are well advised to takea proactive approach in addressing the topic, and suggest how such institutions can provideguidelines to parties and tribunals on how to handle climate change-related disputes in arbitralproceedings. These guidelines can assist parties to jointly agree on a mechanism to increase thetransparency of relevant arbitral proceedings, including the submission of amicus curiae briefs. Inaddition, lists of arbitrators and specialists with expertise in climate change-related fields ofknowledge can be made available. Such guidelines and expert assistance aimed at increasingtransparency, legitimacy, and accessibility, once adopted by parties and tribunals, would helpmake arbitration all the more tailored to handle climate change-related disputes.