Climate Change and Arbitration: Annex Time before there won’t be A Next Time

As well as multiplying, climate change disputes will, going forward, be multifarious and extend beyond the inter-State paradigm into the investor–State and citizen–State contexts. Leaving the now short-lived Kyoto Protocol aside, the current climate change legal framework—ie the United Nations Framework Convention on Climate Change and the Paris Agreement on Climate Change—is bereft of a binding, coercive compliance system. This void contrasts sharply with the punitive compliance system of the successful Montreal Protocol on the ozone layer. It is also exacerbated by the fact that the next best solution—a dispute settlement mechanism allowing the parties to ensure compliance among themselves through legal action—lacks one of the most effective strings to its bow: the arbitration annex provided for in the legal framework but never implemented. The drafting and bringing into force of this annex are vital to give the climate change legal framework the teeth it needs to meet the goals set in Paris, and to resolve climate change disputes more generally. To have the greatest impact possible, the annex should be moulded to take account of the myriad types of climate change disputes that increasingly have to be resolved.