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  • Antara Dongre

ENVIRONMENTAL DISPUTE RESOLUTION AND ARBITRATION: LEGAL MECHANISM

Antara Dongre

G.H. Raisoni University

ENVIRONMENTAL DISPUTE RESOLUTION AND ARBITRATION

Abstract: 

Environmental disputes were formerly mediated inside the fields of land use, natural useful resource management, water resources, power, air quality, and pollutants. ADR has been used with various stages of success in policy-making, preferred setting, the determination of development choices, and in the enforcement of environmental requirements. In negotiated rule-making, a terrific deal depends at the contributors, the negotiating style, the notion of the business enterprise's function by interested parties, and other components of the system. the problem of consent decrees and settlement of clean up responsibilities beneath the comprehensive Environmental response, repayment and liability Act (CERCLA) is only in part a matter for ADR due to the fact the consent decree or agreement is the end result of earlier enforcement litigation which has defined and confined the areas for agreement and agreement. recurring problems of ADR are that it's miles a private in place of public method; there may be question of whether or not a negotiated rule carries the identical judicial deference as does an employer-made rule; the fact that the function of the everyday administrative groups has been displaced; and despite the fact that commonly legally enforceable, it isn't a manner which incorporates the attributes of legal decision making.

Keywords: ADR (alternate dispute resolution), Environmental Dispute, Climate change, Environmental conflicts 

Introduction: 

Environmental law is a broad and dynamic subject generally concerned with the impact of human activities on the environment. It is an area of law that provides a framework for responding to all problems arising from climate change, environmental pollution, and use of natural resources. Environmental disputes are very complex and difficult to resolve due to their wide-ranging impact on public interests. Individuals, communities, etc. However, the ADR process addresses this issue in a seamless and systematic manner. Environmental disputes typically involve a variety of parties, from individuals to the general public and various other communities, and can arise across multiple jurisdictions (both domestic and international). One person's environmental dispute may become another person's labour dispute, or it may affect the sovereignty of the country.

Environmental conflicts are reaching an all-time high due to the various international agreements signed by countries (e.g. the recent 2015 Paris Agreement) and their subsequent obligations, as well as the pressure of nongovernmental organizations to protect the environment and atmosphere. to change. They have evolved from interstate conflicts to capitalist-state conflicts and now to trade disputes.

Environmental Dispute Resolution (EDR)? 

 EDR is the shift we are seeing in decision-making management from command and control to a less discretionary approach to problem solving. Bad As a traditional process that often results in litigation with a final verdict by a judge or jury, EDR technology is used to help both parties reach agreement on their terms uses various communication services. Except for arbitration, the entire EDR process is based on the concept of negotiation, allowing conflicting persons who want to find solutions for many reasons. integration issues.

Why is EDR important? 

EDR is an important decision-making process that gives everyone a say. A “round table” approach often leads to more informed decisions that benefit not only the participants but also the health of the soil. Since these meetings will affect stakeholders, it is also important to work in coordination with different processes. It often leads to a broadening of their thinking as they are forced to consider the importance of other perspectives.

What is the point of conflict between the environment?

  • Environmental conflicts occur when two parties have persistent differences in values and attitudes regarding the environment, natural resources, and public lands. 

  • These conflicts often arise between many people involved in the decision-making process who disagree on one or another issue. Additional questions may follow regarding actions or policies that have an impact on the environment.

 Basis of EDR?

Environmental dispute resolution as a practical process developed from the Alternative Dispute Resolution (ADR) program initiated in the United States, which used the human mediation process, courts, nongovernmental organizations, non-profit organizations, and community-based mediation centres.  Applications of ADR technology driven more by environmental concerns.

What types of crashes are suitable for EDR? 

  • Environmental disputes can be divided into upstream and downstream.  

  • Upstream conflicts are conflicts related to planning or policy development, such as the implementation of government policies at the national, provincial, or local levels, land use practices, or distribution or distribution of natural resources. Depending on the level or site, such as the location of resources, industries and other large objects.

Advantages of the EDR:

  • EDR contrasts with traditional dispute resolution processes (especially litigation).

  • Proponents of EDR argue that there are many shortcomings in dispute resolution of environmental problems that lead to punitive solutions at the civil level. Decisions are heard. Because they do not have enough financial resources) They do not have enough financial resources, they do not have enough they don't have money RESOURCES The litigation process is very time consuming. Clinical trials usually take several months, with the entire process once a decision being made can take years. The litigation process takes a lot of time. The entire process can take years with appeal decisions What are the advantages of the EDR process commentators also believe that the informal negotiation process has many advantages. Compared to the uncertainty of losing the case, both parties face less risk, court costs are reduced and the time to resolve the dispute  is also shorter. Court fees are reduced and the time required for dispute resolution is also shortened, or stakeholders take something away from the meeting to ensure a better resolution, so  all conflicting persons or stakeholders leave the meeting. . The likelihood of reaching a definitive agreement increases. 

  • Advocates also argue that the full participation of all stakeholders contributes to meaningful discussions and enables better environmental decision-making and balance is the basic element of establishing. Empower yourself to market better, create sustainable results and resolve to solve the problem of the problem.

Disadvantage of the EDR? 

  • Critics of EDR question it on several fronts: EDR images are exaggerated, the arguments are not entirely "sweet" and can lead to arguments and debates based on accurate EDR images. The arguments are not "emotional" at all  and can be grounded. Disputes and controversies under the Act have mandatory time for litigation compared to EDR  as most disputes are never brought to court. EDR  is faster or better at making good decisions, depending on the case, there is no evidence that EDR is faster or better at making good decisions, EDR can be  as expensive as going to Court Depending on the situation, EDR is something Doctors can "reframe" "People discuss issues, eventually intervening in issues. 

  • Mediators can "reframe" issues for disputing parties and ultimately reach compromise between issues. EDR is more dishonest than big politicians. Context in which conflict arises: Since many political processes are about power struggles, EDR cannot solve political problems. EDR is unfair because the main content of the dispute is revealed. Most of the policies are all kinds of opposition and EDR. The growing political problem cannot be solved.

ENVIRONMENTAL DISPUTE RESOLUTION AND ARBITRATION

Arbitration as a Dispute Resolution Method:  

Arbitration is a private dispute resolution process that gives the parties the opportunity to choose their own judge and keep their case confidential. The parties must agree to submit the dispute to arbitration for it to be binding. The decisions made are final and binding and can be reviewed on very few grounds (without regard to the merits of the case). Additionally, thanks to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or the 1958 New York Convention (New York Convention), awards can be enforced in more than 160 jurisdictions. Environmental disputes can only be arbitrated if previously agreed upon between the parties to an investment treaty, multilateral environmental agreement (MEA) or commercial agreement. As mentioned above, among the traditional methods of dispute resolution, the use of arbitration is also mentioned. The Permanent Court of Arbitration has made appropriate changes to its rules to include procedures for arbitral resolution of environmental disputes. However, in addition to this, professional ad hoc arbitration between government and n on-government private parties is also popular. Therefore, it can be said that parties can apply for arbitration of environmental disputes in the following ways:

1.  International Convention Providing for Compulsory Arbitration:

a. Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992

(OSPAR)

b. United Nations Convention on the Law of the Seas (UNCLOS)

2.  International convention providing for optional:

a. Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973 (CITES) and the Convention on Conservation of Migratory Species of Wild Animals, 11979

b. The Vienna Convention on Protection of Ozone Layer, 1985

3. Arbitration National Practices on Arbitration 

4. Commercial Agreements Providing for Binding Arbitration

Permanent Court of Arbitration: 

1899 Pacific Convention on the Settlement of International Disputes (Hague Convention) The Permanent Court of Arbitration was the first international organization to resolve and manage international disputes through judicial review and additional assistance in external proceedings. In the North Atlantic Coast Fisheries case, a state dispute arose between the United States and the Unit ed Kingdom, based on a special treaty signed in Washington that gave residents of the United States the same rights as those engaged in British fishing in various regions. United Kingdom. Coast of Newfoundland and Labrador. The arbitration rules determine the interpretation of Article 1 of the Convention and other environmental disputes decided by the Permanent Court of Arbitration.

Latest Example: 

The 2015 Paris Climate Change Agreement is the latest example of ADR being used to address environmental issues. At the United Na²tions climate change conference in Paris, 195 countries participated in negotiations on an emissions limits framework and took joint action to combat climate change. UN Secretary-General Ban Ki-moon described the adoption of the Paris Agreement on climate change by participating countries as “a monumental victory for people and the planet.” This was one of the most important steps towards making the planet greener and uniting the country on the same page.

Conclusion:

Recent research shows that although environmental lawyers' acceptance is growing, they still face challenges due to their reluctance to engage in EDR for fear of losing control of the process, as their strength lies in their training in adversarial processes. Appeared. In this sense, the most serious challenge facing the use of EDR as a tool for creating a sense of common purpose based on results is the understanding by its proponents that EDR is a viable conflict resolution tool that can be used to address environmental management issues. The point is that we cannot convince the officials. The fact is that the lack of serious conceptual research prevents proponents from answering questions and providing evidence to support their claims. Therefore, the future of EDR as a tool depends on researchers studying and documenting EDR in terms of its impact on decision-making in environmental conflicts.

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