ESG (Environmental, Social and Governance) Disputes are increasingly showing up as commercial disputes in the courts and in ADR. These disputes often include a public interest element – e.g. in New Zealand the Court of Appeal’s decision on BNZ’s termination of banking services for the Gloriavale community, climate-related litigation, or an arbitration between energy sector players over entitlement to gas supply in Methanex v Nova. Offshore, a third of international arbitrations are encountering public interest issues, according to the latest international surveys. 

We’ll be exploring the following questions: What role does the Arbitrator have when deciding ESG disputes? What expertise and knowledge should the Arbitrator be permitted to draw on when balancing public/private issues within commercial disputes? Will this change as climate-related mitigation and adaptation disputes increase? Is the Arbitrator confined to considering the commercial issues between the parties, or do they have a responsibility to consider the impact of their decisions on the wider community (local, national and global). Does this support, or undermine, arbitration’s role in supporting the rule of law?