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Prof McCorquodale speaks at event on Domestic and International Responses to the Transboundary Haze

On 15 March 2016, CEBCLA organised a seminar titled "Domestic and International Responses to the Transboundary Haze". The event was sponsored by Dechert LLP. The speakers for the event were Assistant Professor Mahdev Mohan from the Singapore Management University, Mr Mark Mangan, a partner with Dechert LLP, and Professor Robert McCorquodale, the Director of the British Institute of International and Comparative Law. The commentators for the event were Mr Thio Shen Yi SC, Joint Managing Director with TSMP Law Corporation and the President of the Law Society of Singapore and Professor Romesh Weeramantry, a Foreign Legal Consultant with Clifford Chance LLP (Hong Kong).

The seminar started with presentations from Ast/Prof Mohan, Mr Mangan and Prof McCorquodale. Ast/Prof Mohan gave an overview of Singapore's Transboundary Haze Pollution Act (THPA), which imposes civil and criminal liability on errant companies that cause or contribute to transboundary haze. He addressed several shortcomings that are found in the THPA, such as the difficulty in gathering evidence to start civil or criminal claims under the THPA. He suggested that Singapore may wish to allow the Director-General of the National Environment Agency (NEA) to facilitate settlements with companies which are accused or causing or contributing to the transboundary haze. This would allow the NEA to direct such companies to take remedial action without admitting liability. Such companies would be held accountable to the terms of the settlement, and NEA must be satisfied with the remedial action. He also advocated for more State-to-State co-operation to tackle the transboundary haze issue, such as the renewal or proliferation of memoranda of understanding between Singapore and the relevant provinces in Indonesia.

Mr Mangan spoke about using investment treaties as a tool to tackle the haze. He explained that an investment treaty is an agreement between two or more States in which the States promise to protect investments made in their territory by the other State's investors. With investment treaties, investors can pursue claims against the State for harm suffered, usually through arbitration. Investors which fall within the scope of the investment treaty in question may be able to commence claims based on, among other things, the "full protection and security" obligations found under the relevant investment treaty.

Prof McCorquodale spoke about the obligation of businesses to respect human rights. He drew attention to the United Nations Guiding Principles on Business and Human Rights, which contain three pillars: (1) the State duty to protect human rights; (2) the corporate responsibility to respect human rights; and (3) effective access to remedies. He emphasised that the responsibility to respect human rights requires that business enterprises avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur. Corporations should also seek to mitigate adverse human rights impacts that are directly linked to their operations, even if they have not contributed to those impacts. In this regard, corporations must prevent, or seek to remedy human rights abuses that occur within their supply chains. Businesses should also conduct due diligence exercises to minimise human rights risks. Businesses should also establish grievance mechanisms for individuals and communities who may be adversely affected.

The commentators then gave their views on the presentations and added their own thoughts to the discussion. Reference was made to the Trans-Pacific Partnership (TPP), which aims to reduce tariff barriers between State parties. Should Indonesia join the TPP, it will be subject to the environment chapter (Chapter 20), which sets out provisions on environmental protections. Under this chapter, Indonesia will have an obligation to respond to other State parties regarding the implementation of that chapter. It will also be subject to the dispute resolution chapter (Chapter 28), under which parties may negotiate a mutually acceptable compensation regime if a State party fails to carry out the terms of any agreement to settle disputes arising out of matters in the TPP, including those in the environment chapter. Other comments addressed the difficulty of starting claims or prosecutions under the THPA, including the difficulty in gathering evidence. It was acknowledged that concession maps are an important tool to ascertain liability of errant companies. To overcome these difficulties, it was suggested that class action claims should be allowed under the THPA.

A Q&A session followed. In response to a question from the floor regarding the role of stock exchanges in preventing transboundary haze, the speakers and commentators agreed that stock exchanges have an important part to play in preventing environmental damage caused by corporations. In this regard, it was noted that the Singapore Exchange had just ended a public consultation on proposed rules for sustainability reporting. The speakers and commentators also agreed that commercial litigators should be involved in the dialogue on transboundary haze, so that claims relating to transboundary haze (under the THPA or otherwise) can be carried out effectively.

Ast/Prof Mahdev Mohan closed the seminar by thanking the speakers, the commenters and the audience.

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