Alastair Marke, Sarisha Ramanand, Kamil Daniel Akdag

Carbon & Climate Law Review, Volume 14 (2020), Issue 1, Page 56 - 69

The Paris Agreement of COP21 distinctly recognises the issue of climate change loss and damage with Article 8 in the main text and Paragraph 51 in its decision text. The Parties at COP22 in Marrakesh 2016 approved a strategic workstream for the Warsaw International Mechanism for Loss and Damage’s Executive Committee to guide the implementation of the Mechanism’s function of enhancing action and support (including finance, technology and capacity-building) to address loss and damage, with the next progress review in 2019. International negotiations on loss and damage did not see considerable progress at COP23 in Bonn. Financial interests still took priority at COP24 to halt accounting mechanisms. COP25 also failed with a lack of consensus amongst post-2020 tasks such as art 6.With reference to some evolving legal principles in other related fields of international law and civil environment cases in Germany, United States, India and China, this paper will examine possible options to prove causal links between the economic activities of developed countries and loss and damage associated with the impact of climate change for developing countries against the backdrop of the Sendai Framework. An alternative standard of proof for climate change loss and damage-related litigations would culminate into a quasi-loss-and-damage compensatory response for countries more vulnerable to the impact of climate change. It could support the implementation and amplify the effectiveness of the Sendai Framework for Disaster Risk Reduction.

Alastair Marke, Marco Zolla

Carbon & Climate Law Review, Volume 14 (2020), Issue 3, Page 187 - 198

In light of the Dutch Supreme Court decision in State of the Netherlands v Urgenda Foundation in 2019 and the opening of the floodgates for climate-change-related litigation claims, this article introduces the concept of climate adaptation and how there have been legislator changes on a global scale to further the aims of the Paris Agreement, explores the recent trend of increasing climate change litigation in the World, analyses the distinction between self-executing and non-self-executing climate change measures and examines the ways in which certain countries have been able to avoid litigation liability altogether. The article then ends by providing two alternative scenarios which consider the potential failures by countries in integrating climate change adaptation measures and the challenges to any adaptation processes adopted by governments.

Alastair Marke

Carbon & Climate Law Review, Volume 12 (2018), Issue 4, Page 297 - 303

Pension funds invest in all sorts of profitable activities, including fossil fuels, but the failure of pension fund trustees to consider and manage risks that climate change poses to their investment portfolios could be in breach of their ‘fiduciary duties’ under Trust Law in common law jurisdictions. A 2014 Law Commission report, ‘Fiduciary Duties and Investment Intermediaries’, concluded that many pension fund trustees had misconceptions about their fiduciary duties and the extent to which the law allowed them to factor environmental, social and governance issues into their investment decisions. This paper will examine, with case law, relevant legal principles from trust deed, the common law duties and statutory provisions, which can be used to initiate lawsuits against trustees investing in climate-unfriendly businesses. With a pension law reform recently introduced by Whitehall, it will also provide a new perspective on the climate change litigation risk facing English pension fund trustees in an evolving legal environment.