Climate change an emerging issue in law

By TREVOR WAHUNE
A CONFERENCE held from March 25 to 29 discussed the introduction of an arbitration process into PNG’s judicial framework to complement the courts’ mediation systems as a way forward for a more cost-efficient mode of settling disputes.
An arbitration clause in a contract is one that requires aggrieved parties to resolve disputes in a negotiated process.
Although such a clause may or may not specify that arbitration occurs within a specific jurisdiction, it binds parties to a resolution outside court.
The second International Mediation and Arbitration Conference (IMAAC) was a first to be held in PNG.
More than 30 experts in the field of meditation and arbitration from around the world attended to help our judiciary understand how mediation and arbitration would assist remove hindrances in the rule of law to increase business confidence in PNG as part of a globalised economy.
Prime Minister Peter O’Neil in his opening remarks said the IMAAC was a first of many international conferences to be held in PNG and include the Commonwealth Magistrate and Judges Association Conference in September.
“This is also the first time that the PNG judiciary complied under the Attorney General of Justice, the PNG Law Society, with the input of the Asian Development Bank and others that have been able to come together and ensuring that this conference takes place with the success it deserves.”
He said there were many positive legal changes that were taking place in PNG’s legal structure and that the challenge put forward would be for the procedures to be independent from politics as enshrined in the rule of law.
“The theme of the conference, Enhancing the rule of law and increasing business confidence in a global economy is very much relevant not only to our country, but also for global agendas.”
O’Neill earlier announced that a bill for an arbitrary system in PNG’s judicial framework would be introduced and enacted by parliament.
The arbitration model will be adopted from the New York Convention (NYC) 1958, that will provide PNG foreign recognition of arbitral awards.
A representative of Wong Partnership LLP in Singapore Koh Swee Yen, told the IMAAC that the NYC was a document that consisted of six articles which upheld international arbitration processes in more than 160 countries when dealing with contractual disputes.
Swee-Yen said if an application for a suspension of an award was made to a competent authority, the authority before which the award was sought to be relied upon may adjourn the decision on the enforcement of the award.
Deputy Chief Justice said the introduction of the arbitration process would assist the commercial courts to save more time to deal with contractual cases.
“In modernising arbitration in PNG, there are three fundamental factors that are driving this reform:
Delays and backlogs in courts; recognising and upholding parties choices, and nation-building which requires foreign investment, and expedited resolution of commercial disputes.
Justice Kandakasi said arbitration to assist mediations would allow parties to make their own decisions and allow the courts to reach out to parties.
“The arbitration technical working committee was established in 2017.
“In 2018, the committee produced briefs to the NEC.
In 2018, the NEC decided on arbitration reforms and drafted an arbitration bill to repeal the current act.
“Consultation with all stakeholders and enactment of the bill into law is the next step.”
Justice Kandakasi said the bill combined both domestic and international arbitration.
“The judiciary will play support and facilitative roles but the challenge is for the private sector to take ownership. “Training will be next on the agenda, soon after the bill is enacted into law,” Justice Kandakasi said.
Managing director of Climate Change Development Authority Ruel Yamuna said climate change remained the single greatest threat to the livelihoods, security and wellbeing of Pacific Island people.
Yamuna spoke on the theme ‘Call for judiciary to set up environmental court’ saying, “As the demand for technical expertise in climate change matters rises, I encourage dispute resolution experts to identify their own professional development needs.”
He said in order for PNG and the rest of the Pacific to meet their Paris Agreement commitments and protect their communities from sea-level rise and other climate impacts, they needed to offer investors a stable legal and financial environment and independent dispute resolution.
The Paris Agreement is within the United Nations Framework Convention on Climate Change in dealing with greenhouse gas emissions that mitigate, adapt, and finance.
The Paris Agreement has 195 signatory countries and has been effective since 2016.
“Under that framework, PNG has committed to reducing fossil fuel emissions in the electricity generation sector by transitioning to 100 per cent renewable energy by 2030.
“In addition, PNG has committed to improving energy efficiency and reducing emissions where possible in the transport and forestry sectors.”
He said last December, he and his colleagues from Climate Change and Development Authority attended an international climate change conference in Katowice, Poland.
“At that conference, Pacific countries continued to play a strong, unified advocacy role for greater efforts to limit global warming to 1.5 degrees.”
He said these efforts were urgently required by all countries if we are to guarantee the existence of the Pacific community and our planet as we know it.
“We must address gaps in technical and financial expertise, lack of resources and data.”
Meanwhile Justice Jeffery Shepherd said there was no doubt the judiciary would consider an environmental court.
“I can’t say immediately, but I believe that is an issue, which the Chief Justice would be pleased to address.”
Justice Shepherd said the establishment of a separate land and environmental court would also depend on financing, and the State’s willingness because such a court would need specialists and environmental lawyers.
“The role and challenge to the judiciary can surely be to adapt and develop laws that address these very serious issues.”
He said it would be interesting to see in the years ahead if the PNG judiciary would develop a concept of environmental refugee protection.
“Think of the number of volcanic islands of the coast of PNG where resettlement has to occur either on temporary or permanent basis.
“Is there a right under the constitution for persons whose land, through no fault of their own, is disappearing?
“Is there a right for the State to assist with resettlement?”
He said the term ‘environmental refugee’ itself has so far not obtained judicial recognition in the major developed states such as America, Europe, and Asia.
“The reason is that judges are concerned that this will open the flood gates, to environmental claims litigation.”