I. Introductory remarks The theme of the ninth Transnational Commercial Law Teachers’ Meeting, which took place at Radboud University in Nijmegen, the Netherlands, on 2–3 November 2017, was ‘transnational commercial law and natural resources’. The choice for this theme was inspired by the thought that there appears to be a need to reconsider the underpinnings of commercial law (including financial law) in light of the far-reaching developments with respect to natural resources.1 Since the start of the industrial revolution some 150 years ago, the main targets of commercial law have been to facilitate economic growth and make monetary, short-term profits, while natural resources were primarily considered as assets that should serve these targets. A range of more recent developments arguably requires that we reconsider this approach. This can be illustrated from a variety of angles, and some of the economic, social, environmental, and geological aspects are mentioned in this overview. From an economic angle, one keyword is scarcity. In order to carry out commercial activity and achieve the objectives of economic growth and short-term profits, large amounts of natural resources are needed. In particular, when combined with the exponential growth of the world population over the past (and future) decades, there is an ever-greater pressure on virtually all natural resources, whether on or in the soil, water, atmosphere, or even in space. This implies increasing scarcity, and possibly even depletion, of the limited amount of available resources. Moreover, unrestricted exploitation may have long-term environmental consequences (including in the form of human waste and pollution, deforestation, desertification, the appearance of monocultures, acidification and ‘plastification’ of seas and oceans, climate change, mass extinction of creatures ranging from insects to birds and mammals to the marine population, and the consequent loss of biodiversity). Such economic and environmental developments, which are happening at an unprecedented pace, are likely to have a profound social impact. A clear example of the impact of human activity—in particular, since the start of the industrial revolution—may be found in the realm of geology. In 2000, Nobel laureate Paul Crutzen and Eugene Stoermer proposed that ‘Anthropocene’ would be a more accurate term for the current geological epoch than the ‘Holocene’ of the past 10,000 to 12,000 years.2 Following in their footsteps, 24 geologists recently reasoned as follows: The appearance of manufactured materials in sediments, including aluminum, plastics, and concrete, coincides with global spikes in fallout radionuclides and particulates from fossil fuel combustion. Carbon, nitrogen, and phosphorus cycles have been substantially modified over the past century. Rates of sea-level rise and the extent of human perturbation of the climate system exceed Late Holocene changes. Biotic changes include species invasions worldwide and accelerating rates of extinction. These combined signals render the Anthropocene stratigraphically distinct from the Holocene and earlier epochs.3 At the thirty-fifth International Geological Congress in 2016, the Working Group on the Anthropocene therefore recommended formally designating the Anthropocene as an official geological epoch.4 It is against this background that initiatives regarding sustainability, including by way of developing circular economies, are taking shape.5 During his address at the launch of the Queen Mary–Unidroit Institute of Transnational Commercial Law on 14 September 2017, Alberto Mazzoni, president of the International Institute for the Unification of Private Law (Unidroit), stressed the ‘universally acknowledged need of promoting sustainable development on a global scale’ and identified ‘international investments capable of promoting sustainable development’ as one of the areas in which the harmonization of commercial law can (and should) continue to play a significant role at a time of increasing nationalism and protectionism.6 This view leads us to a discussion of the content of the conference.7 In considering the role that the law can play in addressing challenges like those outlined above, the attendees focused on transnational commercial law. Within this rather broad category, general themes that surfaced in the course of the meeting included financing techniques, responsibilities and liabilities, and dispute resolution. Particular topics discussed included the Unidroit Convention on International Interests in Mobile Equipment (Cape Town Convention; section II)), contract farming and land investment contracts (section IV), as well as aspects of financial law (sections V and VI), private law (section VII), energy law (section VIII), and space law (section IX). Clearly, there are other areas of the law that may be relevant in the context of natural resources, including criminal law,8 regulatory law, constitutional law, intellectual property law, and human rights, but these were not, or barely, discussed at the conference. It should be noted that, besides the conference theme of ‘natural resources’, there was also room for more ‘traditional’ elements of the Transnational Commercial Law Teachers’ Meetings, notably the discussion of important substantive developments in the field of transnational commercial law generally (such as the completion of the United Nations Commission on International Trade Law’s (UNCITRAL) Model Law on Secured Transactions; section III) as well as didactics and curriculum development. As to the latter element, from a didactic perspective, Camilla Andersen (University of Western Australia) spoke on the role of visuals in the commercial law curriculum and in contracting,9 while Caslav Pejovic (Kyushu University) examined the overlap between transnational commercial law and foreign investment law on the basis of his experience in teaching both topics. Athanassios Kaissis (emeritus at Aristotle University, International Hellenic University) presented the master’s of law curriculum in transnational and European commercial law, mediation, arbitration, and energy law at the International Hellenic University, while Matthias Weller (then EBS Universität für Wirtschaft und Recht) provided insight into the transnational commercial law programme at his institution. II. Cape Town Convention After the opening of the conference by Daniël Wigboldus (president of the Executive Board of Radboud University), Herbert Kronke (Iran-United States Claims Tribunal, emeritus at Heidelberg University, former Secretary-General of Unidroit), and the author of this overview, a first panel, chaired by Charles Mooney (University of Pennsylvania Law School), centred around the successful 2001 Cape Town Convention.10 This umbrella convention, which aims at facilitating the financing of different types of high-value, mobile, and uniquely identifiable equipment, was completed with several asset-specific protocols on aircraft equipment,11 railway rolling stock,12 and space assets.13 A draft Protocol on mining, agricultural, and construction equipment (MAC Protocol) has recently been considered by a Committee of Governmental Experts and is about to be submitted to a Diplomatic Conference for adoption.14 The Unidroit Work Programme for the 2017–19 triennium also mentions the development of a Protocol on matters specific to ships and maritime transport equipment and a Protocol on matters specific to renewable energy equipment, although both projects are currently still accorded low priority status.15 The place of the draft MAC Protocol and the proposed Protocol on renewable energy equipment within the Cape Town Convention framework were discussed in depth during the meeting. Attention was also paid to the Cape Town Convention Academic Project and to more general developments regarding secured transactions law, notably the UNCITRAL Model Law on Secured Transactions. Clearly, the types of assets covered (or potentially covered) by the Cape Town Convention and its protocols are directly relevant to the debate on natural resources, whether in light of greenhouse gas emissions and other pollution caused by the use of aircraft, railway rolling stock, space assets, or ships; the extraction or use of such resources in the context of mining (including space mining), agriculture, or construction; or because of the growing need to finance equipment to generate renewable energy. For example, during the meeting, the question was raised whether it is desirable effectively to ‘subsidize’ the aircraft industry by providing a favourable legal regime in the form of the Cape Town Convention, whereas rail traffic, although cleaner and more sustainable, currently does not benefit from such a regime. Benjamin von Bodungen and Howard Rosen, ‘From the Luxembourg Rail Protocol to the draft MAC Protocol’ Benjamin von Bodungen (German Graduate School of Management and Law) and Howard Rosen (Rail Working Group) discussed the development of the Cape Town Convention and its protocols, with a special focus on a comparison of the 2007 Luxembourg Rail Protocol, which is expected to come into force in 2019, with the draft MAC Protocol, which is currently being elaborated. It has become customary for later protocols in the Cape Town Covention family to closely follow previous protocols to the extent feasible in light of the equipment categories that are dealt with. The MAC Protocol therefore follows the Rail Protocol, among other things, where insolvency remedies and the registration of notices of sale are concerned. After an examination of this common ground between both legal texts, Von Bodungen and Rosen highlighted some of the major deviations from the Rail Protocol, which—at the current state of negotiations—include the scope of the MAC Protocol, the identification of MAC equipment for the purposes of registration, the public service exemption, the treatment of inventory, and coming to grips with the legal implications of the possible association of MAC equipment with immovable property. Teresa Rodríguez de las Heras Ballell, ‘Complexities arising from the expansion of the Cape Town Convention to other sectors: the MAC Protocol’s challenges and innovative solutions’ Teresa Rodríguez de las Heras Ballell (Universidad Carlos III de Madrid) further elaborated on some of the complexities and opportunities arising from the expansion of the Cape Town Convention system philosophy to other sectors. After examining the principles underlying the development of the Cape Town Convention and its Aircraft, Rail, and Space Protocols and the particular solutions adopted reflecting the differences between the sectors involved, she paid specific attention to the challenges faced and the innovative solutions found in the development of the additional Protocol for the MAC sector. Rodríguez de las Heras Ballell shed further light on issues such as the way in which the World Customs Organization’s Harmonized Commodity Description and Coding System is used to define the scope of the MAC Protocol, inventory financing, and the association of MAC equipment to immovable property. Moreover, she considered how the approach taken in this context could provide inspiration to cover yet other types of assets in future protocols. Ole Böger, ‘A possible Protocol to the Cape Town Convention on renewable energy equipment’ Ole Böger (Hanseatic Court of Appeal in Bremen) examined the possible development of a Protocol to the Cape Town Convention on renewable energy equipment. He outlined the history behind this proposed additional Protocol as well as some of the main drivers behind it, including a rapidly growing international market for renewable energy and the need to take measures to counter climate change. The goal of this additional Protocol would be to extend the regime of proprietary security under the Cape Town Convention system, characterized by effective proprietary security rights for financiers, to renewable energy equipment so as to facilitate further investments in this sector. A Protocol on renewable energy equipment, however, would have to address a number of legal issues that are considerably different from the existing protocols to the Cape Town Convention—for example, issues concerning definition, the lack or at least a lower degree of mobility of the equipment, and problems regarding the application of national property law in offshore developments as well as conflicts with immovable property law in onshore projects. To some extent, the new Protocol could draw on the experience of the current development of the draft MAC Protocol to solve these issues; in other respects, new legal solutions would need to be found in order for a Protocol on renewable energy equipment to become a success. Böger underlined the need to distinguish between different sources of renewable energy, including onshore and offshore wind farms, solar energy equipment, and hydroelectric projects, each of which raises different legal issues. Not only did Böger’s discussion of the proposed new Protocol on renewable energy fit well with the preceding discussion of other aspects of the Cape Town Convention, but it also tied in neatly with various other energy- and climate change-related issues raised by later speakers at the meeting. Peter Winship, ‘Reforming national secured transactions laws: are Cape Town Convention Protocols the way to go?’ Peter Winship (Southern Methodist University, Dedman School of Law) also considered the Cape Town Convention, but from the more general perspective of efficient law reform. Assuming the desirability of modern secured transactions law, he considered the efficacy of using protocols to the Cape Town Convention to introduce or reform national law. He analysed the potential scope of the Convention, with particular attention paid to the recent consideration of the protocol covering mining, agricultural, and construction equipment. Winship assessed the advantages and disadvantages of using such protocols to introduce reforms and contrasted this assessment with other possible methods. Jeffrey Wool, ‘Briefing on the Cape Town Convention Academic Project’ Jeffrey Wool (Aviation Working Group, University of Washington School of Law, University of Oxford) briefed the meeting on the Cape Town Convention’s Academic Project. This project seeks to assist scholars, students, practising lawyers, judges, other government officials, and industry representatives by providing information on, and education about, the Cape Town Convention and its protocols. The main elements of the project include: (i) a comprehensive repository of the legislative history of, and a vast range of documents relating to, the Convention; (ii) publication of the yearly Cape Town Convention Journal; (iii) holding of an annual academic conference; (iv) furthering economic assessment of the Convention; and (v) creating and distributing instructional materials relating to the Convention.16 III. Other secured transactions Louise Gullifer, ‘UNCITRAL Model Law on Secured Transactions’ Louise Gullifer (University of Oxford, Radboud University) discussed the UNCITRAL Model Law on Secured Transactions, which was adopted in July 2016, and the Guide to Enactment thereto of July 2017. Gullifer considered the purposes of the Model Law and how it may fulfil these purposes. In particular, she examined arguments for and against the harmonization of the law in the area of secured transactions, the choice of instruments available, the implementation process, and how the Model Law may best serve the aim of increasing access to, and decreasing the cost of, credit. IV. Contract farming and land investment contracts A second main topic discussed at the conference regarding the interaction between transnational commercial law and natural resources concerned projects in the field of agriculture carried out by Unidroit, in cooperation with the United Nations Food and Agriculture Organization (FAO) and the International Fund for Agricultural Development (IFAD). These organizations jointly issued a Legal Guide on Contract Farming in 201517 and are currently working on the development of an international instrument on agricultural land investment contracts.18 These projects were examined in a panel chaired by Anna Veneziano (Secretary-General ad interim of Unidroit) from the perspective of overarching policy goals such as sustainable agricultural development and food security, while the case of the Australian dairy sector was considered in light of the Legal Guide on Contract Farming. Henry Gabriel, ‘Unidroit’s work in contract farming and land investment in the broader context of agricultural development and food security’ Henry Gabriel (Elon School of Law) examined the Legal Guide on Contract Farming and the ongoing work on the instrument on agricultural land investment contracts from the overarching perspective of food security and agricultural development. He noted that these joint projects are designed to tune Unidroit’s expertise in international commercial law with the particular expertise that the FAO and the IFAD have with agricultural development and food security. Gabriel examined the past, current, and possible future work of Unidroit in food security and how this work may serve as a model for the merging of private international law with broader concerns of economic and social development. Bruno Zeller and Leo Langa, ‘Contract farming: global standards or market forces? The case of the Australian dairy industry’ In the same panel, Bruno Zeller presented joint research conducted with Leo Langa (both belong to the University of Western Australia) as to whether global standards, such as the UNIDROIT/FAO/IFAD Legal Guide on Contract Farming, have a role to play in the ongoing crisis in the Australian dairy industry. A price war between two major dairy processors has resulted in the near collapse of many dairy farms in Australia. Zeller examined whether the international standards set out in the Legal Guide can protect against inept enterprise management and a government that believes that intervention is not necessary and that market forces alone will provide a solution. Interestingly, where problems between dairy processors and dairy farmers (the domain of the Legal Guide on Contract Farming) have led to financial distress for farmers, this has resulted in agricultural land being bought up by third parties from abroad (the topic of the ongoing work on the instrument on agricultural land investment contracts). Clearly, contract farming and agricultural land investment contracts are part of a much larger picture. When financing agricultural projects, financial institutions, for example, may take the International Finance Corporation’s Environmental and Social Performance Standards into account 19 or make such financing conditional on the monitoring of deforestation in an effort to promote best practices.20 Where a reliable land register is not available, maps and data provided by the World Resource Institute may provide a practical substitute, for example, by showing possibly overlapping concessions by different government entities, including concessions granted in the past.21 Because food security is a long-term policy goal, sustainability considerations concerning, for example, pesticides, fertilizers, soil erosion, effects of monocultures, loss of biodiversity, and so on,22 may also be reflected in commercial agricultural contracts. Moreover, (land) rights of indigenous people may play a role. It should also be noted that legal perceptions may vary considerably from one community to another (for example, with respect to the force of oral or written contracts) and over time (for example, pre-colonial, colonial, post-colonial).23 V. Financial law and natural resources A third main theme during the first day of the conference was the connection between financial law and natural resources. The stakes of developments in this area for the financial sector are high. If climate change or other natural disasters cause major damage, this impacts insurance companies,24 while investments of pension funds or banks may lose substantial value—for example, in fossil fuel companies—because of the necessary energy transition or multi-billion euro claims if it is proven that these companies knew of the impact of their business all along. The same may happen to investments in real estate if it needs to be made sustainable. Clearly, these and comparable potentially profound changes in the risk profile require the attention of commercial market participants, their regulators, rating agencies, and legislators. Under the chairmanship of Herbert Kronke, this theme was approached from the angle of an ongoing European initiative regarding sustainable finance and by an examination of the role of sustainability reporting and disclosure. Hector Tsamis, ‘Legal and regulatory approaches towards sustainable finance’ Hector Tsamis (International Hellenic University), one of the traditional student participants in the Transnational Commercial Law Teachers’ Meetings, presented the ongoing work of the European Union (EU) towards sustainable finance.25 This work takes place in the context of the EU Capital Markets Union Action Plan, and was initially carried out by the High-Level Expert Group on Sustainable Finance. In developing its proposed course of action, this group, inter alia, took into account the 2016 Paris Agreement on climate change and the UN 2030 Agenda for Sustainable Development. The group issued an interim report in July 2017 and its final report in January 2018. Tsamis presented the different economic, social, and environmental aspects of the interim report and put special emphasis on legal and regulatory aspects of the development of a green economy in the EU. Hannah Buxbaum, ‘From sustainability reporting to sustainability disclosure’ Hannah Buxbaum (Indiana University Bloomington, Maurer School of Law) focused on one of the pillars of sustainable finance regimes—that is, the reporting and disclosure of information by companies relating to the environmental and social impacts of their operations as well as their related risks. She put forward the thesis that the traditional distinction between ‘soft law’ sustainability reporting on social and environmental matters and ‘hard law’ financial disclosure requirements has begun to fade. Most of the sustainability reporting frameworks in place today were designed by non-governmental organizations or multilateral institutions, and they traditionally share two primary characteristics. First, they are voluntary rather than mandatory. Second, they only require the disclosure of non-financial information. Buxbaum, however, pointed out a number of recent initiatives aimed at changing one or both of these characteristics. For instance, the move towards ‘integrated reporting’ seeks to combine non-financial and financial information in order to better capture the total economic value (and ability to create value long term) of a corporation.26 New accounting frameworks were also put forward.27 Various task forces on climate-related financial disclosures seek to quantify sustainability impact.28 Some States have enacted laws mandating financial disclosure where certain companies make royalty payments to government entities in connection with resource extraction.29 Moreover, sustainable stock exchanges play a role in effecting a synthesis between the sustainability, economic, and financial aspects of reporting and disclosure.30 VI. Other financial law issues Charles Mooney, ‘Beyond intermediation as we know it: something old (direct holding) and something new (distributed ledger technology) for financial market infrastructures for intermediated securities’ Charles Mooney presented a joint research project with Kumiko Koens (Yamagata University) on a more general financial law topic. Their project contains a modern critique of intermediated securities holding systems under domestic law and in the context of cross-border holding patterns. It argues that modern systems of information technology can play an important role in overcoming flaws, excessive risk, and inflexibility under current legal regimes and market structures. In particular, it proposes a new platform for reducing risks in intermediated holding systems that would incorporate a distributed ledger (that is, blockchain) technology and connect all relevant stakeholders in one system at the end of a settlement cycle. VII. Private law and natural resources: responsibilities, liabilities, and litigation The first panel on the second day of the conference, chaired by Hannah Buxbaum, started with an examination of principles and building blocks for a global legal framework for civil litigation in environmental matters. Subsequently, attention was paid to the problem of climate change, which is the subject of the Oslo Principles on Global Climate Obligations and the recent Principles on Climate Obligations of Enterprises (published in January 2018). In this context, the fundamental implications of the Dutch Urgenda case for tort law were also discussed. Where climate change may imply obligations for a variety of actors, the same may occur in the context of mining, which was illustrated on the basis of experiences in the Dutch provinces of Limburg (coal mining) and Groningen (gas mining). Hans van Loon, ‘Principles and building blocks for a global legal framework for transnational civil litigation in environmental matters’ Hans van Loon (former Secretary-General Hague Conference on Private International Law) discussed aspects of the role of transnational private law in influencing human conduct affecting the environment, including the planet’s climate. In particular, he aimed at identifying the building blocks for a (currently missing) global legal framework for civil litigation in environmental matters that often extend across borders. Towards this end, Van Loon tracked the emerging transnational normative order for business relating to the environment since the publication of Our Common Future by the United Nations World Commission on Environment and Development in 1987 until today. Moreover, he analysed patterns in litigation against States and private actors in this field, notably in the USA and the EU. Van Loon put forward that contestation through private law and private international law is of increasing importance as a means of giving practical effect to the—often abstract—principles and rules adopted at global and regional levels to regulate the environmental impact of human activity. He thus underlined the importance of developing a sound global legal framework in this respect. Van Loon’s contribution provided fertile soil for further discussion, including the contributions on climate change by Jaap Spier and Marc Loth and the issue of ‘anchor defendants’ by Matthias Weller and Alexia Pato.31 Jaap Spier, ‘The Principles on Climate Obligations of Enterprises: an attempt to give teeth to the universally adopted view that we must keep global warming below an increase of two degrees Celsius’ Jaap Spier (retired Advocate-General at the Supreme Court of the Netherlands, Universities of Amsterdam and Stellenbosch) prepared a message for the conference on the Oslo Principles on Global Climate Obligations32 and the more recent Principles on Climate Obligations of Enterprises.33 These laudable initiatives intend to give flesh and blood to the obligations of various key actors in the face of the increasing threats of climate change. Whereas the Oslo Principles primarily target States, the Enterprise Principles elaborate detailed rules for enterprises (including their suppliers) as well as financiers and investors. Both sets of principles provide much-needed legal and practical guidance for these different actors, including concrete obligations as to the reduction of greenhouse gas emissions and transparency. Since climate change is an unprecedented challenge to mankind, the principles, by necessity, enter new legal territory. However, as far as possible, they build on well-established sources of law (including tort, company, environmental, human rights, international, and other law) so as to ensure maximum acceptance. Marc Loth, ‘Too big to trial? Lessons from the Dutch Urgenda case’ While Jaap Spier considered legal obligations in connection with climate change from the perspective of international standard setters, Marc Loth (Tilburg University) considered the same issue from the reverse viewpoint of a judge presented with a tort claim under national (in this case, Dutch) law. The resulting Urgenda ruling sustained—for the first time in history—a climate change liability claim. The ruling raised international support but was the subject of criticism as well. The objections rest on the observation that climate change somehow seems too big to trial. In assessing this critique, Loth dissects the fundamentals of tort law and addresses questions such as: what are the relevant key rules and concepts in tort law; what does the Urgenda ruling mean for our current legitimations in private law; and what public law dimensions does the ruling touch upon? Loth concludes that the Urgenda ruling requires that we reconsider the purpose of tort law adjudication in society at large, but that, if there is a will to do so, tort law is conceptually fit to deal with global challenges such as climate change. Loth’s examination of the fundamentals of tort law shows the broader dilemmas for the law that arise due to very rapid and far-reaching changes in the environment at large. How should legislators, contracting parties, and dispute settlers react to this trend? Should the new awareness and needs regarding the environment be factored into ‘old-style’ commercial laws and treaties that traditionally focus primarily on commercial considerations? How should the terms of commercial contracts be drafted and interpreted in light of environmental events or concerns that were not foreseen by the parties when they entered into the contract? While environmental aspects are increasingly part of problems arising in the context of commercial transactions, what does this mean for dispute resolution? For example, how do environmental policies by host States (in part, inspired by an avalanche of scientific research) play out in investor–State arbitration, and how do changing public policy concerns qualify the law and the terms of commercial contracts and, thus, the decisions of arbiters and judges? Jan van Dunné, ‘Liability issues in gas and coal mining for damage caused by soil subsidence, earthquakes, and groundwater management under Dutch law or: a tale of two provinces—Groningen and Limburg’ The second item that gave some Dutch ‘couleur locale’ to the conference besides the Urgenda case was the examination of liability for mining activity under Dutch law by Jan van Dunné (emeritus at Erasmus University Rotterdam). Mining in the Netherlands primarily took place in the province of Limburg, where coal was mined until the 1970s, and in the province of Groningen, where large gas fields are still being exploited (an activity that is now being reduced). Van Dunné gave a historic overview of the development of the liability regime for mining activity in the Netherlands since Napoleonic times and compared it with the regime in neighbouring countries such as France, Germany, and the United Kingdom. He examined determining factors that helped to shape different aspects of the legal regime for liability, including whether it is fault based or strict, the burden of proof, and limitation periods. Such determining factors include considerable damage to the property of private entities due to soil subsidence and earthquakes, the economic interests of mining concessions holders and the Dutch State, energy policy, as well as environmental concerns. Van Dunné exposed several weaknesses in (the development of) the Dutch legal regime. The circumstance that damage may occur not only around the time when mining is actually carried out, but also decades later (for example, due to changes to groundwater levels in connection with mining), ensures that the issue will remain on the agenda in the foreseeable future. The issue of liability for mining activity complemented the discussion of the financing of mining equipment under the draft MAC Protocol to the Cape Town Convention, which was discussed earlier in the conference. VIII. Energy law: international legal framework and dispute resolution Tedd Moya Mose, ‘Toward a harmonised framework for international regulation of renewable energy’ Van Dunné’s exposé on liability aspects of oil and gas mining was followed by a presentation by Tedd Moya Mose (Queen Mary University of London) on the international legal framework for renewable sources of energy. He set the scene by providing information about developments in global fossil fuel markets since the Second World War, notably the debate on sovereignty over natural resources and the appearance of a lex petrolea, and he assessed their relevance for renewable energy. He subsequently discussed the emerging fragmented legal framework for renewable energy, which is partly set out in hard law treaties (for example, the Statute of the International Renewable Energy Agency, the United Nations Framework Convention on Climate Change, and the Energy Charter Treaty) and partly in a plethora of soft law instruments (for example, the International Energy Charter, the Rio Declaration on Environment and Development, the Johannesburg Declaration, and the Sustainable Energy for All Initiative). Moya Mose then advocated a comprehensive framework for international energy law, covering not only renewable but also other sources of energy. He argued that the relevant rules should be informed by the so-called ‘energy trilemma’ propagated by the World Energy Council, which centres on aspects of economics (affordability), politics (energy security), and the environment (including climate change and sustainability). Moreover, Moya Mose proposed actively to develop the soft law framework for renewable energy so as to enhance its status and effects. Following these pathways provides opportunities to achieve the aim of coming to sustainable, future-proof energy markets. Moya Mose’s presentation thus fit well with the proposal made by Ole Böger to develop a protocol on renewable energy machinery to the Cape Town Convention and with the thinking propounded by Jaap Spier and Marc Loth on responsibilities and liabilities in the face of climate change. Moreover, the presentation informed the subsequent discussions on energy and dispute resolution under the guidance of Athanassios Kaissis. Anna Marhold, ‘Dispute resolution mechanisms and the role of industry in European regulatory agencies for energy: a comparative perspective’ Anna Marhold (Tilburg University) took a European perspective on energy markets and, thus, suitably complemented Moya Mose’s internationally oriented treatise. Marhold focused on coordination, harmonization, and standardization efforts in the creation of a well-functioning European internal energy market and an interconnected, sustainable, and secure Energy Union. She underlined that such efforts are, by definition, multifaceted in nature and involve a variety of actors representing governments, national regulatory agencies, the industry itself, and stakeholder organizations from EU Member States and countries of the European Neighbourhood. Moreover, a range of agencies and other organizations, each with their own setup and objectives, play a key role in such energy-related efforts, including the European Network of Transmission System Operators for Electricity, the European Network of Transmission System Operators for Gas, the Agency for the Cooperation of Energy Regulators, the Council of European Energy Regulators, the Energy Community, and the Energy Charter Conference. Marhold critically assessed the role of these organizations in settling disputes in the energy sector. Additionally, she explored the influence of the energy industry on the creation of rules within the framework of these organizations and, thereby, its influence on designing the EU internal energy market. Pauline Ernste and Gerard Meijer, ‘Arbitration and energy’ Pauline Ernste (Radboud University, NautaDutilh) and Gerard Meijer (Erasmus University Rotterdam, NautaDutilh) examined whether arbitration is a suitable method for resolving complex international energy disputes, typically involving large and long-term capital investments. They paid attention to both investment and commercial arbitration. Investment arbitration is used to solve investment disputes under bilateral or multilateral investment treaties (an example of the latter is the Energy Charter Treaty). Recently, different States have embraced the use of renewable energy sources—for example, solar and wind energy—and a number of disputes have arisen in this context. For instance, Nextera, a US energy company and investor in the Spanish solar power plant Termosol, has commenced arbitration proceedings under the rules of the International Centre for Settlement of Investment Disputes on the basis of the Energy Charter Treaty in order to demand redress for the asserted roll-back on promises and the lowering of subsidies granted to the investor. However, it is not only renewable energy sources that lead to investment disputes under bilateral or multilateral investment treaties. Over the years, a number of investment disputes have also arisen regarding, for example, oil concessions, leading to arbitrations under such treaties. Ernste and Meijer also provided several examples of commercial arbitration as a dispute settlement mechanism in the context of energy contracts. For instance, for several years now, gas price review disputes, whereby a party seeks to have the gas price under a long-term gas sales agreement adjusted, have been settled through commercial arbitration. Ernste and Meijer discussed the kinds of dispute for which energy arbitration is used in practice and the question of whether arbitration is indeed a suitable method for resolving complex energy disputes. Vesna Lazić, ‘Enforcement of annulled arbitral awards: the Pemex and Yukos cases’ Vesna Lazić (Utrecht University, TMC Asser Institute) focused on the procedural issue of the enforcement of arbitral awards that are annulled in the jurisdiction where they were rendered. She examined recent cases in the USA (Pemex)34 and the Netherlands (Yukos),35 which adopted a different line of reasoning from the French approach. According to the latter, an annulled arbitral award may be enforced in France in reliance on national (French) law on enforcement as a law more favourable than the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Lazić explained that the US Pemex and Dutch Yukos cases take a different approach and develop the idea of scrutinizing the judgment under which the award was set aside so as to ignore the effects of the annulment in certain circumstances. Even though there are some common denominators, she identified substantial differences between the line of reasoning of the courts in the USA and the Netherlands. For the sake of legal certainty and predictability in arbitration, Lazić thus advocated the development of specific guidelines regarding the enforcement of arbitral awards annulled in the country of origin.36 Matthias Weller and Alexia Pato, ‘Local parent companies as “anchor defendants” in European courts for claims against their foreign subsidiaries in human rights and environmental damages litigation: recent case law and legislative trends’ Matthias Weller subsequently presented comparative research conducted with Alexia Pato (also at the time of the EBS Universität für Wirtschaft und Recht) regarding the question as to whether European parent companies can serve as ‘anchor defendants’ in European courts for claims against their foreign subsidiaries. The first angle from which this issue was approached regarded case law in the United Kingdom (UK), the Netherlands, and Germany on the environmental and social implications of transnational commercial activity. Notably, the UK court case of Okpabi and Others v Royal Dutch Shell regarding oil pollution in Nigeria, the UK case against Vedanta regarding copper production in Zambia, the Dutch Akpan v Royal Dutch Shell case regarding oil spills in Nigeria, and the German KiK case regarding a deadly fire at a textile production site in Pakistan were discussed against the background of UK, Dutch, German, and European procedural and conflict-of-law rules. The second perspective taken by Weller and Pato—absent a comprehensive European framework—related to current substantive trends at the national legislative level, including developments in France, where certain corporate entities are now subject to a duty of vigilance law,37 in Switzerland, where an initiative populaire suggested to enshrine corporate responsibilities regarding human rights and the environment in the Swiss Constitution, and in Germany, where the approach to adopting similar measures is rather cautious. Weller and Pato concluded that in order to address effectively transnational environmental and social responsibilities of corporate entities, conflict-of-law, procedural, and substantive measures should go hand in hand. IX. Space law Frans von der Dunk, ‘Billion-dollar questions? Legal aspects of commercial space activities’ The main reason to conclude the meeting with a presentation on space law was the existence of two conflicting trends in this area at present. On the one hand, there is growing interest in the development of commercial activity in space (for example, regarding satellites, commercial spaceflight, mining of resources in space). On the other hand, an increasing quantity of space debris is gradually making both public and private activity in outer space more difficult and riskier and, thus, costlier. Frans von der Dunk (University of Nebraska-Lincoln) discussed the major questions these trends pose for the legal framework, which was developed initially in the 1960s and 1970s. Although commercial space activities and pollution by space debris were then hardly on the horizon, this framework nonetheless is still the baseline today for addressing any of the consequences of the growing use of outer space. Von der Dunk provided an overview of current legal challenges by analysing both international treaties and more recent domestic legislation of a number of States involved in activities in space. While the treaties are not fully geared to current trends, national approaches often diverge. He also examined some of the current debates seeking to guide the current legal framework in the right direction. Von der Dunk’s contribution echoed several of the themes discussed earlier in the meeting. He briefly addressed financing aspects of space assets as covered by the Space Protocol to the Cape Town Convention (but he did not elaborate on this topic since this Protocol is not yet in force) and paid close attention to liability related to space assets (including insurance for such assets and, where applicable, reimbursement to the State by private entities for any sums paid as a consequence of such liability) as well as to dispute resolution mechanisms. Von der Dunk concluded that the legal regime for commercial activities in space needs to be modernized. It would appear that the most future-proof approach to this end would be to not treat issues such as space debris, the financing and commercial exploitation of space assets, as well as liability, insurance, and reimbursement aspects as separate topics but, rather, to consider them all as pieces of a larger puzzle that need to be addressed in a coordinated manner. X. Acknowledgements and concluding remarks Herbert Kronke, as always, was a source of inspiration leading to the organization of the Transnational Commercial Law Teachers’ Meeting. Corjo Jansen and Ben Schuijling (Radboud University) gave their full support to the organization of the conference in Nijmegen from the very outset. The sponsors of the gathering, including the Royal Netherlands Academy of Arts and Sciences as well as the Radboud University’s Business and Law Research Centre, Law Faculty, and International Office, deserve a warm word of gratitude for their generous contributions. The impeccable organization benefited greatly from the support of the Radboud University’s Centre for Professional Legal Education—in particular, the able hands of Ricky van Oers, Annika Boh, and Lisette Koers. Anna Veneziano and Lena Peters of Unidroit are warmly thanked for immediately agreeing to, and otherwise facilitating, this special issue of the Uniform Law Review. Speakers, moderators, and participants all helped to make the conference a success thanks to their spirit of friendly cooperation both in the preparations and in the deliberations themselves. The meeting would have been incomplete without Sir Roy Goode’s (emeritus at University of Oxford) eloquent dinner speech and the closing remarks by Steven Bartels (Dean, Faculty of Law, Radboud University). All in all, the ninth edition of the Transnational Commercial Law Teachers’ Meeting was a step forward in building a future-proof bridge between the legal framework for a variety of concrete commercial activities and natural resources. Further thought and policy-making are needed in which aspects of financing, responsibilities and liabilities, dispute resolution, and other fields of the law should not be considered in isolation but, rather, as components of a wider picture. For example, the financing of mining equipment should be linked to liability for any detrimental consequences of mining, while the financing of space assets should take the effect of space debris into account. In bringing different areas of the law and the mounting challenges regarding natural resources into tune, an interdisciplinary approach with input from other fields of science should be welcomed. Echoing Mazzoni’s assessment that sustainability is one of the topical issues to be tackled by commercial law-making international organizations, the conference provided an array of pathways towards the retailoring of the underpinnings of transnational commercial law with a more holistic vision in mind. Footnotes 1 This theme appeared as an ‘undercurrent’ in discussions at earlier Transnational Commercial Law Teachers’ Meetings, including at Kyushu University in Fukuoka (Japan, 2013) and Eötvös Loránd University in Budapest (Hungary, 2014). At the meeting at the University of Western Australia in Perth (Australia, 2015), the topic was discussed at some length from a didactic perspective; see Thomas Keijser, ‘Natural Resources and Teaching Transnational Commercial Law’, 40/2 (2016) The University of Western Australia Law Review 55–67. 2 Paul Crutzen and Eugene Stoermer, ‘The “Anthropocene”’, 41 (May 2000) International Geosphere-Biosphere Programme (IGBP) Newsletter, 17–18. 3 Colin Waters et al., ‘The Anthropocene is Functionally and Statigraphically Distinct from the Holocene’, 351/6269 (2016) Science, DOI: 10.1126/science.aad2622, aad2622-1 (quote). 4 See https://www.americangeosciences.org/geotimes/overview-35th-international-geological-congress (accessed 1 March 2018; including further links to articles on the BBC website and in The Economist, The Guardian, and Science). 5 From a philosophical-religious perspective, see also the encyclical letter Laudato Si’ of the Holy Father Francis on Care for Our Common Home (Rome, 2015). 6 Alberto Mazzoni, ‘International Commercial Law Today: Old Habits and New Challenges’, on file with the author and forthcoming in the Transnational Commercial Law Review. Quotes: s 4. 7 The outlines of the presentations below build, to a greater or lesser extent, on the synopses set out in the conference brochure and PowerPoint presentations that were distributed to participants of the meeting, as well as on the contributions to this special issue. The conference brochure is available at http://www.ipr.uni-heidelberg.de/md/jura/ipr/tcl-teachers/2017_speakers.pdf (accessed 1 March 2018). For reports of the meeting, see Olaf Meyer, 6 (2017) Zeitschrift für Europarecht, Internationales Privatrecht und Rechtsvergleichung 271–2; Matthias Weller, (6 November 2017) http://conflictoflaws.net/2017/conference-report-9th-transnational-commercial-law-teachers-meeting-at-radboud-university-nijmegen/ (accessed 1 March 2018). 8 E.g., the International Criminal Court (ICC) pays special attention to crimes involving ‘the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land’. See ICC, Office of the Prosecutor, Policy Paper on Case Selection and Prioritisation (15 September 2016), https://www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf (accessed 1 March 2018), ss 7, 41 (quote). 9 See https://www.comicbookcontracts.com/ (accessed 1 March 2018). 10 See https://www.unidroit.org/instruments/security-interests/cape-town-convention (accessed 1 March 2018). The Convention currently has 75 Contracting States and Regional Economic Integration Organizations; see http://www.unidroit.org/status-2001capetown (accessed 1 March 2018). 11 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (Cape Town, 2001), available at https://www.unidroit.org/instruments/security-interests/aircraft-protocol (accessed 1 March 2018). 12 Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock (Luxembourg, 2007), available at https://www.unidroit.org/instruments/security-interests/rail-protocol (accessed 1 March 2018). 13 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets (Berlin, 2012), available at https://www.unidroit.org/instruments/security-interests/space-protocol (accessed 1 March 2018). 14 See https://www.unidroit.org/work-in-progress/mac-protocol (accessed 1 March 2018). 15 Unidroit 2016 – A.G. (75) 3 corr., ss 2(A)(1), 15-25. On the maritime protocol, see Ole Böger, ‘The Case for a New Protocol to the Cape Town Convention Covering Security over Ships’, 5/1 (2016) Cape Town Convention Journal, 73–102, DOI: 10.1080/2049761X.2016.1256432. 16http://www.ctcap.org/ (accessed 1 March 2018). 17http://www.unidroit.org/english/guides/2015contractfarming/cf-guide-2015-e.pdf (accessed 1 March 2018). 18http://www.unidroit.org/work-in-progress/agricultural-land-investment (accessed 1 March 2018). The new instrument will build on, among other things, the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT; 2012), http://www.fao.org/docrep/016/i2801e/i2801e.pdf (accessed 1 March 2018) and on the Principles for Responsible Investment in Agriculture and Food Systems (CFS-RAI Principles; 2014), http://www.fao.org/3/a-au866e.pdf (accessed 1 March 2018). 19http://www.ifc.org/wps/wcm/connect/topics_ext_content/ifc_external_corporate_site/sustainability-at-ifc/policies-standards/performance-standards (accessed 1 March 2018). 20http://www.globalforestwatch.org (accessed 1 March 2018). 21http://www.wri.org/resources (accessed 1 March 2018). 22 E.g., according to a German/Dutch/UK study, numbers of flying insects diminished by more than 75% in German nature reserves over the past few decades, which is surely bad news for pollination. See Caspar Hallmann et al., ‘More Than 75 Percent Decline over 27 Years in Total Flying Insect Biomass in Protected Areas’, (2017) PLoS ONE, https://doi.org/10.1371/journal.pone.0185809 (accessed 1 March 2018). 23 This paragraph has benefited from talks with colleagues at the Dutch development bank FMO. 24 E.g., http://www.swissre.com/media/news_releases/nr20171220_sigma_estimates.html (accessed 1 March 2018). 25 See https://ec.europa.eu/info/business-economy-euro/banking-and-finance/sustainable-finance (accessed 1 March 2018). 26 E.g., the Global Reporting Initiative, https://www.globalreporting.org/Pages/default.aspx (accessed 1 March 2018). 27 Sustainability Accounting Standards Board, https://www.sasb.org/ (accessed 1 March 2018). 28 E.g., the work of the Financial Stability Board in this area. See http://www.fsb.org/what-we-do/policy-development/additional-policy-areas/developing-climate-related-financial-disclosures/ (accessed 1 March 2018). 29 E.g., Section 1504 of the US Dodd-Frank Act (SEC implementing rule invalidated in 2017); recitals (7) and (8) and Article 1(5) of EU Directive 2013/50/EU, and Chapter 10 of Directive 2013/34/EU. 30 E.g., the Sustainable Stock Exchanges Initiative, http://www.sseinitiative.org/ (accessed 1 March 2018); the Sustainability Working Group of the World Federation of Exchanges. 31 See also the inspirational contribution of Hans van Loon, The Global Horizon of Private International Law (Leiden/Boston, Brill Nijhoff, 2016; Hague Academy of International Law Recueil des cours 380), ss 105–49 (‘Environment and Climate Change’). 32 Expert Group on Global Climate Change, Oslo Principles on Global Climate Obligations (Eleven, 2015; Legal Perspectives for Global Challenges 3). 33 Expert Group on Climate Obligations of Enterprises, Principles on Climate Obligations of Enterprises (Eleven, 2018; Legal Perspectives for Global Challenges 5). These Principles were launched at a gathering at the University of Amsterdam on 18 January 2018. 34Corporación Mexicana de Mantenimiento Integral, S. de R.L. de C.V. v. Pemex-Exploración y Producción, United States District Court for the Southern District of New York, 27 August 2013, 10 Civ. 206 (AKH); United States Court of Appeals for the Second Circuit, 2 August 2016, 13-4022. 35Yukos Capital S.A.R.L. v. OAO Rosneft, Amsterdam Court of Appeal (Gerechtshof Amsterdam), 28 April 2009, ECLI:NL:GHAMS:2009:BI2451; OAO Rosneft v. Yukos Capital S.A.R.L., Dutch Supreme Court (Hoge Raad), 25 June 2010, ECLI:NL:HR:2010:BM1679. 36 This presentation built on Vesna Lazić’s contribution titled ‘The Yukos and Pemex Judgments: Do the Courts in the Netherlands and in the United States Follow the Same Approach When Enforcing Annulled Arbitral Awards’ to a congress celebrating the 50th anniversary of UNCITRAL in July 2017 (on file with the author). 37 Loi n° 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre. © The Author(s) (2018). Published by Oxford University Press on behalf of Unidroit. All rights reserved. For permissions, please email firstname.lastname@example.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
Uniform Law Review/Revue De Droit Uniforme – Oxford University Press
Published: Apr 23, 2018
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