By Sandhya Saravanan, Member of the Bar Council Publications Committee
The 37th LAWASIA Conference 2024 took place from 13 to 15 Oct 2024 at Hilton Kuala Lumpur.
The session started with moderator Kiu Jia Yaw setting the scene of navigating through the triple planetary crises of climate change, biodiversity loss and pollution, all which have transboundary implications.
The first speaker, Vinodsagaran Gunasakaren, partner of the Law Chambers of Vin Sa & Ian, shared with the delegates sombre pictures of illegal fishing, wildlife poaching and haze — all with a transboundary element. He explained that while Singapore had enacted the Transboundary Haze Pollution Act in 2014, Malaysia does not have a similar legislation, as seeking cooperation from neighbouring countries (which forms a significant part of the legislation) was a challenge. He was of the view that the ASEAN Agreement on Transboundary Haze Pollution may not be impactful in tackling the transboundary issues at hand.
The second speaker was Hitomi Mitani, lecturer of the law of tort at the Faculty of Law, Kumamoto University, Japan. She shared her perspective on transboundary damages that a tort victim is entitled to, with a specific view of Japan’s ongoing radioactive waste water. She spoke about the differences related to the cause-and-effect between low doses of radioactive material and the damage to the health of the victims, and the approach adopted by the Japanese Supreme Court concerning the threshold for a safe level of radiation exposure. Another transboundary damage she highlighted was reputational damage, which was damage caused by consumers who were concerned about the risk of radioactive contamination of products due to facts widely known through news reports and other media sources.
The third speaker was Lily Morton, a lawyer in the climate change and sustainability team at Gilbert + Tobin. She spoke about the emergence of mandatory disclosures by corporations across the globe. She explained that in June 2023, the International Sustainability Standards Boards issued two reports — the International Financial Reporting Standards (“IFRS”) General Requirements for Disclosure of Sustainability-related Financial Information; and IFRS climate-related disclosures, integrating and building on the Task Force on Climate-Related Financial Disclosures recommendations. She went through the four core elements that organisations adopt, which were governance, strategy, risk management and most importantly, metrics and targets.
The fourth speaker was Briony Eales, consultant team leader for Judicial Capacity Building in Environmental and Climate Change Law at the Asian Development Bank. She began her presentation by setting out the environmental challenges as well as the challenges to justice in the Pacific region. With these in mind, she highlighted the objectives that should be in place, including strengthening the capacity for climate change and environmental dispute resolution. A proposal was made on the potential structure of the Pacific Environmental Dispute Resolution Centre with three potential functions. The function of capacity building would include judicial education and training for legal actors, as well as potential community education and outreach efforts. The technical aspect would potentially consider the register of experts and function as an ombudsman. The multi-door dispute resolution function would consider alternative dispute resolution mechanisms and enforcement of orders.
The fifth speaker was Md Imam Hossain, Head of Chamber of Investment & Development, Consultancy / Litigation / Arbitration (“IDCLA”). He spoke on the environmental justice and climate action of the Global North and South, highlighting a comparative study of both regions.
On the question from the moderator on whether mediation and arbitration would be the preferred medium of dispute resolution to resolve such transboundary issues, Vinodsagaran Gunasakaren was of the view that such closed-door mechanisms may encourage parties to resolve issues, given that most times, it would involve the sharing of sensitive information. However, Briony Eales was of the contrary view, as such mechanisms rarely allow community members to have a say and they don’t allow amicus curiae briefs.
However, all speakers agreed on the need for effective implementation of laws and strategies to tackle such transboundary issues at hand, on which more could be done.