Are we witnessing the rise of super level economic environment risks?

In a few years’ time we may look back and say that it was in 2015/2016 when legal proceedings and recent policy changes combined to produce manifest serious transfrontier and trans-sector commercial and economic environment risk. In a series of short articles we will seek to elaborate on this.

Purely because of its topicality this first article reports on an important announcement yesterday. The Commission on Human Right of the Philippines (CHR) confirmed that it will launch an inquiry into alleged human rights abuses resulting from climate change. This maybe the first of its kind.

The inquiry relates to a petition1 made by 18 individuals and 14 organisations filed with the CHR (originally in September 2015 and amended most recently on 9 May 2016) to investigate 47 of what the petitioners call the “carbon majors” with “the lion’s share of cumulative global CO₂ and methane emissions since the industrial revolution”. Many of these are well known multinationals.

On 27 July 2016, the CHR ordered these 47 respondents to respond to the petition. As at yesterday, the CHR confirmed that it had received 20 formal responses, and that an additional seven informal replies had been provided indirectly. In these informal replies (here), some respondents naturally declined to comment in view of the ongoing legal proceedings and others challenged the jurisdiction of the CHR.

The CHR has allowed the petitioners until 14 February 2017 to submit their consolidated reply to the respondents’ responses. It also confirmed that a full inquiry will go ahead and it will hold public hearings from April 2017. These hearings will be webcast live because, in the words of Commissioner Cadiz (on behalf of the CHR), the case is of “worldwide interest” and other jurisdictions should be able to “observe and submit their comments”.

The CHR also confirmed that it has so far received six amicus curiae briefs and is encouraging any other interested “stakeholders and adjudicators” to submit their opinions. In the meantime, the CHR will seek to agree with the petitioners and respondents alike case management details including witness requirements and timetabling.

This case appears to be the world’s first case of this nature filed before a national human rights institution in which the operations of industrial majors and supermajors have been alleged to have caused climate change, the effects of which are in violation of human rights laws.

Of course there is likely to be a huge amount of legal, and indeed political, argument relating to this case. Whatever may be the ultimate outcome of the case, the fact of the case is in itself significant. Moreover when viewed in light of other recent legal actions around the world and recent policy requirements (particularly in relation to non-financial reporting and transparency) the implications in terms of significant economic and commercial risk must be plain to see.

Comment

There has been growing commentary around the commercial and economic (as well human) implications of climate change. For instance the deputy head of the Bank of England issued stark warning to companies who choose to ignore the impact of climate change, stating “those responsible for causing or not mitigating it are likely to get sued”.

In our view (and we will elaborate on this in our subsequent articles) whilst the cases on climate change are, alone, very significant, they should not be taken in isolation. There are other cases relating to the environment (whether against the state or at citizen/corporate level) which also present very significant risks, and, like climate change some of these apply across national boundaries and across sectors. It is when we take these climate change and other risks together that we pose the question, will 2015/2016 be the time when serious transfrontier and trans-sector commercial and economic environment risk became manifest?

1 Available via Greenpeace.org