Written by - Barkha Tandon (Intern)
INTRODUCTION
In an era where the conservation of our planet stands as an utmost global priority, environmental disputes have become a pervasive challenge. Comprehending the complications involved in these disputes is crucial to discovering solutions that are both effective and sustainable, ensuring a harmonious balance between the interests of all parties involved.
As we navigate the complicated landscape of safeguarding our environment, understanding the limitations of conventional litigation, and embracing other forms of settlement becomes vital.
DECODING ENVIRONMENTAL DISPUTES
In simple words , Environmental disputes means conflicts, disagreements, or legal controversies emerging from issues relating to the environment. They usually involve conflicting interests relating to the usage, management, and preservation of natural resources, ecosystems, or environmental quality. They include within their ambit a wide range of issues, which includes but is not limited to pollution, land usage, conservation and protection, exploitation of natural resources, regulatory compliance etc. With time these disputes have become a major concern both at the local as well as global levels as they are overly complex and tricky to settle on account of their largescale impact on the concerns of individuals, societies, etc. Each party has its own priorities, which makes it challenging to reach a common solution.
LIMITATIONS OF LITIGATION IN ENVIRONMENTAL DISPUTE RESOLUTION
In the past, dealing with environmental disputes was primarily limited to litigation, which posed various challenges, due to its time and resource-intensive nature. Additionally, there were many issues with the same, primarily because it was a time and money-consuming process. In litigation, there was a burden of pending cases, making the processes long and tedious. Hence, it was thought that ADR could be a plausible solution to the above-mentioned problems since it had become a widely accepted process, popular, and is also less time and money consuming. ADR refers to any means of settling disputes outside of the courtroom; it is a process in which a neutral third party, typically a mediator or arbitrator, facilitates the disputing parties in reaching a mutually acceptable agreement[1] The Paris Climate Change Agreement in 2015 was one of the major steps for implementation of the ADR mechanism to resolve environmental disputes. Also, The Permanent Court of Arbitration, which is one of the oldest organs of the United Nations for enabling settlement of disputes among member states, has jurisdiction on all kinds of disputes, including environment and resource disputes.
ARBITRATION'S ROLE IN NAVIGATING ENVIRONMENTAL CONFLICTS
Arbitration plays a significant part in resolving environmental conflicts by providing an effective and efficient mechanism for parties to settle their disputes. This method has become fairly popular over the last few years because of its characteristic ability to stabilize the diverse interests of stakeholders and encourage justifiable solutions.
Establishing a Neutral and Expert Forum:
one of the most important aspects of resolving the complex environmental disputes is ensuring the availability of appropriate expertise. Arbitration allows parties to choose arbitrators who have specific knowledge about environmental issues. This ensures that the disputes are resolved by those who are experts in this field, which further assists in reaching a more viable and accurate and decision-making procedure.
Ensuring timely settlement
Timely Resolution of environmental disputes is of critical importance. However, the key issue faced in traditional litigation was the delay in procedure to resolve the environmental disputes. To resolve this issue, arbitration has proven to be a boon since it is a faster process than traditional litigation ensuring that the interests of all the parties and stakeholders involved are not compromised unnecessarily for prolonged periods. The Malimath Committee Report on Reforms of Criminal Justice System (2003) which primarily focused on criminal justice, also recommends the promotion of ADR methods in resolving disputes, including environmental disputes.
Increased transparency
The public interest in climate change related disputes and the likely frequent involvement of States and state entities is likely to increase the push towards enhanced disclosure and transparency, even in commercial disputes. Arbitration provides the procedural flexibility to meet such demands. Transparency can be achieved in two ways: by allowing public access to the proceedings (including submissions, procedural decisions, and hearings), and by publishing the awards (even if partially redacted). In case the parties are wary about such disclosure, guidance from the tribunal may be sought in order to protect sensitive information.
Possibility for the involvement of third parties
The nature and consequences of climate change may regularly lead to the question of whether other interested parties and stakeholders, such as affected citizens or populations, non-governmental and inter-governmental organizations should be allowed to participate to the arbitration. Naturally, clear, and express consent of the relevant parties, due process, and the importance of avoiding disrupting the proceedings remain paramount. In this respect, the Report addresses the joinder of additional parties and consolidation of compatible proceedings. In addition, the submission of amicus curiae briefs – which is not uncommon, for example, in investment arbitration – is addressed.[2]
Safeguarding Secrecy
Environmental conflicts typically entail sensitive material, making confidentiality a major priority for the parties involved. Unlike proceedings in courts, arbitration offers a greater amount of secrecy, permitting parties to stay anonymous throughout the process. This allows for open conversation and information exchange, leading to successful negotiations. For example, in a disagreement between the company and a community crippled by pollution, arbitration might provide a secure environment for both sides to express their opinions without the risk of attracting unwanted scrutiny.
Procedural Flexibility
Arbitration enables parties to modify the process to meet the unique conditions of an environmental concern. This flexibility can speed up the resolution of disagreements, saving both time and resources for all parties concerned. For instance, in a dispute over the allocation of water resources among different parties, arbitration might adopt a shortened procedure that emphasizes scientific facts and opinions from experts, allowing a quick settlement.
Ensuring Adherence to Environmental Standards
Arbitration can be effective in enforcing compliance with environmental legislation and standards. By integrating such standards into the procedure for arbitration, parties can make sure that the decision complies with the ideals of sustainable development. This can assist in preventing additional environmental damage and encourage appropriate behavior.
CONCLUSION
In the end, the transition from conventional litigation to alternative dispute resolution, especially arbitration, shows a growing commitment to resolving environmental disputes more efficiently, accurately, and sustainably.
Settlement of disputes through arbitration is more favorable than the court because it can resolve disputes quickly and prevent damage and more severe environmental pollution. For that we need efforts to popularize understanding of environmental dispute resolution through arbitration.[3]
Also, The landscape of environmental dispute resolution is changing, as people recognize that protecting our planet for future generations demands collaborative, informed, and timely methods.
[1] Katie Shonk, “Familiarize Yourself with Mediation, Arbitration, and a Hybrid Approach Using Alternative Dispute Resolution,” Harvard Law School Program on Negotiation (May 26, 2020), available at https://www.pon.harvard.edu/daily/dispute-resolution/what-is-alternative-dispute-resolution/.(accessed 22 January 2024).
[2] Juan Pablo Valdivia Pizarro, "The value of arbitration and ADR in resolving climate change-related disputes: a view into the ICC Commission’s Report," available at https://www.linklaters.com, (last visited 22 January 2024).
[3] Amriani, N., S., Kamello, T. and ., R. (2015) “Empowering Arbitration for Resolving Environmental Disputes”, The International Journal of Humanities & Social Studies, 3(1). Available at: https://www.internationaljournalcorner.com/index.php/theijhss/article/view/131900 (Accessed: 22 January 2024).