Singapore Very Young Arbitration Practitioners Event Recap

THE AUTHOR:
Evan Chou, B.A. Graduate Brasenose College, University of Oxford

On 25 February 2025, Singapore Very Young Arbitration Practitioners (“SG VYAP”) and the Campaign for Greener Arbitrations jointly organized a hybrid event on the Draft Conciliation Annex to the Paris Agreement, titled “The Paris Agreement Conciliation Annex: The Future of Climate-Related Inter-State Disputes?”

Moderated by Ms Sunita P. Advani, Founder and Chair of SG VYAP and Arbitral Assistant to Mr Michael Lee of Twenty Essex in Singapore, and Ms Eva Teh Jing Hui of K&L Gates Straits Law LLC, the panel comprised:

Professor Jean-Marc Thouvenin, Professor of International Law at the Université Paris Nanterre;
Ms Charis Tan, Partner at Peter & Kim, Singapore;
Dr Túlio Di Giacomo Toledo, Senior Legal Counsel and Representative of the Permanent Court of Arbitration (“PCA”) in Singapore; and
Mr Bart Wasiak, Senior Associate at Arnold & Porter, London.

Introducing the Paris Agreement and its Draft Conciliation Annex, Professor Thouvenin noted that there are currently no provisions or mechanisms to respond to situations where the Paris Agreement is not respected or implemented. Although the United Nations Framework Convention on Climate Change (“UNFCCC”), under which the Paris Agreement was signed, provided for an annex on conciliation, this annex has yet to be implemented. In the absence of a defined conciliation procedure, any conciliation would have to be agreed between parties each time a dispute arose, along with the associated procedures. The Draft Conciliation Annex implements such a procedure, providing for a compulsory conciliation mechanism (though not a binding or mandatory decision upon completion of the conciliation process) when complaints or disputes arise. The next step would be for the Conference of the Parties to adopt the Draft Conciliation Annex.

Introducing the particular features of conciliation, Mr Wasiak noted that the aim of conciliation was to assist in the amicable settlement of a dispute. This meant that a conciliator would play a facilitative role. Instead of a power to impose mandatory or prohibitory awards, the conciliator would investigate the dispute, hear witnesses and stakeholders, provide an appraisal of the situation, and propose mutually acceptable solutions. In the context of inter-state disputes, this would often take the form of a quasi-diplomatic process. This could be contrasted with mediation, which is less formal, and tends not to have an investigative process conducted by the mediator.

Professor Thouvenin noted that conciliation is particularly well-suited for climate change disputes, as such disputes typically involve many stakeholders aside from the parties to the dispute. Dr Toledo noted that the flexible procedure of conciliation allows these stakeholders to be heard. While this might be possible in arbitration, the adversarial nature of arbitration and the preferences of the parties in each arbitration would mean that non-party stakeholders might not have the opportunity to be heard.

Ms Tan shared that climate change disputes generally fall into four categories:

Inter-state disputes;
Investor-state disputes;
Domestic litigation relating to climate change, such as breach of domestic legislation or constitutional rights (e.g., the right to life or health); and
Sector-specific litigation, such as the interpretation of reinstatement clauses governing the return and termination of oil and gas concession contracts.

On the future of climate change disputes, Professor Thouvenin highlighted that there could be potential disputes concerning whether the Paris Agreement would be considered a lex specialis, or whether and to what extent the lex generalis on state responsibility would continue to apply to climate change disputes. There might also be questions on whether the Nationally Determined Contributions under the Paris Agreement create results-based or best-efforts obligations.

Ms Tan noted that in the recent Advisory Opinion by the International Tribunal for the Law of the Sea, the Tribunal advised that the United Nations Convention on the Law of the Sea (“UNCLOS”) was not modified by subsequent instruments such as the UNFCCC and the Paris Agreement, but that these instruments should as far as possible be interpreted consistently, to give rise to a consistent set of obligations. In this regard, the obligation under Article 194 of UNCLOS, requiring that states take all measures necessary to reduce pollution, was an “obligation of conduct” and not an “obligation of result”.

Mr Wasiak further noted that the Energy Charter Treaty (1994) (“ECT”) has similarly been used to protect investors in the alternative energy sector. Although several states have withdrawn, or have planned to withdraw, from the ECT, Mr Wasiak suggested that insofar as the ECT has been used to protect investments in the alternative energy sector, the ECT has encouraged such investments.

On the key challenges facing climate change disputes, Ms Tan stated that it is often challenging to define the content of the law in each dispute because climate change law is constantly evolving. Dr Toledo noted that climate change disputes, especially inter-state disputes, will often be politicised. This may not sit comfortably with the purpose of conciliation, which is to allow parties to engage in open and frank conversations in pursuit of an amicable resolution. To this end, while closed-door or ex parte hearings may be possible, such options must be balanced against the need for transparency and openness. Professor Thouvenin also stated that while many international instruments (such as UNCLOS) had specific dispute resolution procedures and “teeth”, the Paris Agreement (even with a Conciliation Annex) did not, so the efficacy of resolving climate change disputes remains uncertain.

When asked for advice for junior lawyers looking to develop expertise in climate change disputes, Professor Thouvenin stated that it is crucial to first be a good international lawyer. A deep understanding of the general law is key to developing specific expertise. In addition, a good climate change disputes lawyer would need to be interested in the different methods of dispute resolution and the different avenues to enforce claims against states. Mr Wasiak candidly stated that, since it is difficult for junior lawyers to specialize solely in climate change disputes, a general international law practice would be the best way to gain the relevant exposure. There might also be pro bono opportunities that involve advising on climate change disputes. Dr Toledo shared that there was a gap in the field for specialists who could converse with both international law generalists and domestic lawyers. Finally, Ms Tan encouraged all junior lawyers to remain engaged, stay curious, and persist in the field.

ABOUT THE AUTHOR

Evan Chou holds a BA (Jurisprudence) from Brasenose College, University of Oxford. He is interested in commercial litigation, arbitration law, and investor-state disputes.

*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.