Hello and welcome back to the Pinsent Masons podcast. A look at the world of business law and the news and analysis you need to help your company thrive. My name is Matthew Magee, and this week we'll be finding out just exactly how big of a bombshell last week's European Court of Human Rights ruling was. You'll remember this is one that said that Switzerland's lack of action on climate policy infringed the human rights of members of a group representing older women. But first some news from around the world, from the reporters on our Outlaw team.
Building contractors in the Middle East could use economic hardship to claw back unexpected costs, MP's tell UK government to say AI content negotiation deadline and more than 1/3 of corruption complaints in South Africa are to do with mining.

Building contractors may be able to use the principle of economic hardship in some Middle East countries to claw back some of their extra Red Sea costs, according to one expert. Houthi rebels have been attacking ships in the Red Sea, disrupting traffic through the crucial Suez Canal. Arbitration specialist Pamela MacDonald said that contractors importing materials are often locked into fixed price contracts, which do not account for inflation or surprise costs. She said often, especially in the Middle East, contracts will not provide express remedies for such a situation. However, the principle of economic hardship, which essentially provides scope for relief in circumstances where there has been an unforeseen event that renders performance of a contract excessively burdensome, is codified in the civil codes of states like Qatar and the United Arab Emirates. It may be possible to argue that the effects of the Houthi attacks constitute a trigger for such relief, she said.

Members of Parliament have told the UK Government to set a definitive deadline for talks with AI developers and content creators over the use of copyrighted material to train AI systems. A committee of MP's said in a report that content creators must be given control over whether their copyrighted works are used by AI developers to train their systems. The report by the Culture, Media and Sport Committee comes after the UK Government was forced to abandon a voluntary AI copyright code earlier this year following a breakdown in talks. The government is now in the process of engaging separately with representatives from the AI and creative sectors with a view to finding a workable alternative to a code. But the committee has said that those talks should have a deadline after which the government should pass legislation to protect content creators interests.

More than 1/3 of complaints registered with a corruption watchdog in South Africa in 2023 related to activity in the mining industry. Corruption Watch recorded complaints made by the public about corruption in South Africa and seeks to use the information to hold officials accountable for misuse of public resources. In its annual report for 2023, it said it received 2110 reports last year and that 38% of them focused on issues of wrongdoing and malfeasance in the mining sector. Investigations expert Edward James described the data as staggering and said that it highlighted the need for mining companies to take action to improve their anti corruption policies and practises, including their whistleblowing procedures.

Many people have brought court cases in the past arguing that climate failures – by governments, regulators, even companies – were so serious that they breached their human rights in various ways. But last week one was successful, for the first time on this kind of scale.
The European Court of Human Rights said a group representing older Swiss women were right when they said that the Swiss government’s lack of action on climate breached their right to a private and family life, which is protected by article eight of the European Convention on Human Rights. The Court’s job is to rule on breeches of the Convention, which is separate to the European Union and is binding on all 46 of its signatory countries.
London-based public law expert David Thorneloe understands why people were a bit surprised by the ruling, but says they shouldn’t have been.

David Thorneloe: So it wasn't really a big surprise for those of us that have been following the case law. I think it's something that's been coming for a few years. I say that because when you look back, the case law we've seen over the last five or six years has been gradually developing in this area in the European Court of Human Rights and this area of Environmental Protection, we've seen cases coming before the court over the last few years, some of them brought by climate change campaigns but about environmental impacts and how that can affect an individual. So, this was very much, I think, a logical next step in the case law and just confirmed the direction it was going in.

Matthew: And why is it human rights law that's being used?

David: Human rights are very much expressed in terms of general principles, so they're very good at filling in the gaps where there are not clear explicit duties set out in legislation requiring a government or someone to do something. Human rights typically sit above most national laws in the hierarchy in which they operate. So generally, it will be national laws that dictate what a national government must do. The rights in the European Convention of Human Rights, they apply to all 46 member countries in Europe as a matter of international law and they've also committed in signing up to the Convention to give effect to that in their national law, meaning as necessary, you know that they will adapt and ensure that their national law complies with it.

Matthew: So why did this case succeed where others have failed? David says there are some technical reasons, including that when four individual women failed to argue that their rights were breached the Society of Older Women was able to succeed, so not all aspects of the case succeeded, but those that did were very well put together, he said.

David: This has been one of the best framed cases that I think has gone all the way to the European Court of Human Rights and it's been one of the most broadly expressed cases. So in that in that sense, it's been the right case at the right time. We have certainly seen a huge growth over the last five to ten years in climate change litigation across Europe and this is certainly going to fuel that growth and litigation that provides from perspective of campaigners who are bringing these claims, it provides a really useful sort of weapon in their armoury for this litigation.

Matthew: The Netherlands has been the preferred location for many climate law suits, in part because it's the home of some global energy companies. Amsterdam based litigation expert Valérie van den Berg said one in particular from 2019 was hugely important.

Valérie van den Berg: There was this foundation, it’s called Urgenda, very Dutch, I'm afraid and Urgenda actually brought the case against the Dutch state for failing to take appropriate measures to reduce the carbon dioxide emissions and they started their journey saying you will not make the targets that the government committed to in 2020, which is a reduction of 20% and then Urgenda said compared to 1990, you need to reduce it by 25% if you're ever going to make the next threshold. So they wanted a more ambitious climate policy from the Dutch Government. They wanted to actually force the Dutch Government. The Dutch court, progressive as they can be, held that indeed the government was under an obligation to put in place appropriate climate policies. It was a tort and actually the tort was framed in the following way. They sent a tort in, in analysis, a breach of right or acting in violation of unwritten norms that are upheld in society at any given point in time and the human rights are part of that and by not putting in place a proper climate policy, the government is violating human rights, and that then is a tort or unlawful act, as we will put it in the Netherlands. The case went to the Supreme Court and the Supreme Court in 2019 said the same. The case was upheld. That was quite ground breaking and the beauty of that case is that the Supreme Court confirmed that the Dutch government is responsible for putting in place appropriate climate policies, because otherwise they would violate individuals, human rights. That was ground-breaking. There was a lot of cases after that, but that was a very clear landmark point in our Dutch legal system, where Dutch government was told to put in place appropriate policies.

Matthew: In fact, the Netherlands met that target almost by accident, Valerie says, because COVID hit meaning all sorts of carbon generating activity stopped overnight and then there was a warm winter. The case only dealt with that 2020 target though, which means if campaigners want to bind the Dutch Government again, they have to take a whole new case about another specific harm.

Valérie: It needs to be specific. That is a critical element. The harm needs to be specific, and actually the beauty of it is, and I think that's the beauty of your Urgenda case that we know 2019 Supreme Court case that if a new commitment is agreed by the Dutch Government that in itself then becomes something that you can test against. So theoretically you and I could set up a foundation tomorrow if we like, right, an NGO and we would just say, OK, Hello, here's the NGO and the aim of this NGO is to test Dutch government policies for climate and then there's a new commitment and what they're doing is never going to make us make that commitment fulfil our obligations. So that's really it. So the Dutch framework is very specific.

Matthew: So what are the sanctions if the government is told to do this kind of thing by a court and they don't do it, what happens then?

Valérie: That's a very good question. That's a question that actually got a lot of pens moving. Will you actually write down penalties and what does that do? Right. You can say to central government, you're actually you need to pay penalties. So I think the general hope and expectation is that if a court like the Dutch Supreme Court tells Dutch government you need to take appropriate measures, Parliament takes over and Parliament actually accepts the judgement and then starts asking questions to the relevant ministers and say you must now explain to us how you're going to meet these targets, what are the plans. So then whole case shifts from being before court to being in the public arena of Parliament and the ministers.

Matthew: The ECHR ruled on several cases at once all bundled together. It’s said that the case brought by young Portuguese people, they argued that 32 countries were all responsible for climate effects in Portugal because, of course, climate effects don't know that national borders exist. It said that that case couldn't be ruled on, that those people could only bring a case holding Portugal's government to account. It also ruled that people have to go through their own countries court system before the ECHR will hear a case. So what won't happen is that the ECHR will issue a future ruling covering all 46 signatory countries. So what does that mean? What will the actual practical impact of the ruling be? Well, it'll be more cases, says David.

David: So the judgement is binding on all 46 member countries of the Council of Europe, who are parties to the European Convention on Human Rights and most of those countries there are varying ways in which each of these European states has given effect to the European Convention in their national laws. Some will have very explicit legislation that closely reflects the Convention. Some will have a general principle that requires their courts to comply with it. Some will have more what we call a very dualist system, where they won't directly incorporate the upper Convention itself, but they will ensure that all their national laws reflect the Convention, because that's what the international treaty they signed up to, that's what it requires. But one way or another it is binding on all those 46 Member States that are parties to the Convention. And so, you know, we can expect to see, you know, we have certainly seen a huge growth over the last five to ten years in climate change litigation across Europe and this is certainly going to fuel that growth in litigation that provides from the perspective of campaigners who are bringing these claims, it provides a really useful sort of weapon in their armoury for this litigation. But I think also it’s been a question of the time is right, the case law has been developing. There have been a number of cases in the UK where this has been tested over recent years. But in fact, one of the key reasons those cases have failed is because the European Court of Human Rights has not made this step yet, and so one of the key principles under the Human Rights Act in the UK, which UK courts apply, is that they are not prepared to go further than the European Court in how they develop or interpret Convention rights and so they have been holding themselves back so indeed that kind of leads the question of now what will litigation in the UK courts look like now that the European Court has taken that step.

Matthew: Valérie says that the case has provided vital certainty on some contested issues that would trickle down into these national court cases having an impact on their outcomes.

Valérie: Because the beauty is it did not just tackle the infringement which is your private life, right, your family life, but is also said it is quite clear from scientific data that there’s a direct connection between that breach and so between the bridge of not putting in place proper climate policies, resulting in more climate change and the damages that individuals might suffer. So the causal link was the topic of health debate, but actually that hurdle has now been taken, so should indeed be much easier to say hello, dear government. Here I am. Have you seen this judgement? They will and I suppose more NGO's will actually take this route.

Matthew: So they're more likely to take these claims and you think after last week's ruling, more likely that they'll be successful.

Valérie: Yeah. And then so what that does is add an extra dimension, I suppose to what's happening in all national governments and parliaments. What is to be expected is that there will be more of these initiatives actually tell governments, but you can't get away with that. You have obligations in international law and you can't avoid them. So we had it already. Our Dutch Supreme Court had already accepted the fact that this is a human rights infringement and that the state has failed to make meet its obligations. But now we have a human rights court case where it's confirmed. So now all governments will have to answer.

Matthew: Well, that's it for now. Thank you for being with us again this week. We really appreciate your time and attention. Do share, review. Tell your colleagues. Tell your friends if you think they might be interested in business law news use from around the world and don't forget you can read new stories every day at pinsentmasons.com from our Outlaw reporting team, and you can sign up to be the first to hear about our stories at pinsentmasons.com/newsletter. But thanks for being with us and until next time, goodbye. The Pinsent Masons podcast was produced by Matthew Magee for international professional services firm Pinsent Masons.