In Conversation With Ipshita Chaturvedi, Partner, Dentons Rodyk

The Singapore Convention Week 2022 has just concluded. What would you like to say about the event and its objective?

I was part of a panel on dispute settlement and climate change. I would say that the focus was on mediation and Singapore's role as a provider in advancing mediation services. More and more people are now getting increasingly interested in mediation before they consider going into arbitration. The focus on the convention week was to examine mediation as a preferred ADR (Alternate Dispute Resolution) mechanism and the role Singapore can play in being the platform for mediation services. There was also a lot of interest on how climate disputes and ESG (Environmental Social Governance) disputes will shape up in the future. Because this is a relatively new area, the articulation of the nature of the dispute itself becomes relevant. For example, everyone knows what shipping disputes look like or what the contours of other commercial disputes are, but climate disputes is a completely new and different field. 

How can companies ensure, according to you, legal due diligence to decrease their carbon footprint?

The first step is to understand the motivation of a company to reduce their carbon footprint. Is it driven by the law or by a company’s internal voluntary covenants? Accordingly, a company will have to introduce due diligence mechanisms and disclosures to report (and offset) their emissions. A lot depends on the sector of the company and also the jurisdiction where the company is based. Decreasing carbon emissions, pollution reduction and ecosystem conservation are all very important angles for companies, both from an economic as well as environmental and societal sustainability standpoint. 

Where companies are required to reduce their emissions by law, you have to comply whether you like it or not. Other companies may want to comply in order to access preferential terms in “green/sustainable” finance or to get more investors or foreign investors. So companies want to be reputationally seen as entities with reduced emissions, sustainable supply chains etc. 

Sometimes, companies are made to comply by their trade or other business partners from other parts of the world who have mandatory laws. In Asia, companies are reluctant to pick the cost of climate change mitigation because of “common but differentiated responsibility” under international law. It basically means that countries that are responsible historically for climate change need to be funding the transition. In developing countries this is a challenge. Energy insecurity, particularly in rural areas, is a very real problem all over Asia and Africa. Therefore, carbon offsets become secondary to the human rights of access to energy and development. These are certain realities that you have to (sort of) recalibrate every time you're looking at any kind of emissions reductions programmes or arrangements. You have to understand what are the different development needs, the history, the international law angle, and the cost of climate mitigation. Once all stakeholders understand the entire chain, then companies can decide on where the cost of compliance must be put. 

How do you think the international law around environment can be made more potent to increase its enforceability?

International law by virtue of its being cannot be enforced in the way national laws are. The nature of public international law is one of prescription and not of direct enforcement. In the past, International Environmental law has proven to be very potent when required. To give you an example, the Montreal Protocol successfully slowed and reversed the increase of ozone-depleting gases in the atmosphere.

To discuss, carbon reduction I think it is important to talk about Glasgow and Article 6. Article six revives the international carbon markets, which means that every time a country offsets or sequesters carbon, either through nature based solutions or technology, or increases renewable energy, they generate credits. Once generated,  a country can either sell those credits in the international markets or the country can meet goals  under their own NDCs (Nationally Determined Contribution). International law, in this case, is woven into the international carbon markets. 

What do you think with reverse the effects of climate change? International law, markets or something else?

Honestly, the only way to stop climate change is if we look beyond our individual countries, organisations and vested interests and start thinking of ourselves as one species. Philosophically,  we need to remember our own mortality so we can make collective decisions that are beyond the money we make and the power we gain. 

How has the growth of India been in terms of environmental law jurisprudence?

In terms of jurisprudence, India has seen some cutting-edge judgments. Sadly, these have been reduced to paper tigers. India’s problem constantly and consistently is one of enforcement and implementation coupled with unclear laws and regulatory grey areas.

Take the example of the law on biodiversity in India. India was the first country to operationalise access and benefit sharing globally. But even after almost 10 years, implementation of the law remains low and most companies are non-compliant. Because of this, biodiversity protection is inadequately funded.    

Share your experience as an environmental lawyer.

When I started off about 14 years ago, no one knew how to articulate the commercial practice of environmental law. Environmental lawyers were either in advocacy or litigation. What I wanted to do was to bring the principles and opportunities of commercial law practice  into environmental law, so that the next generation of environmental lawyers can care for the planet and pay their bills. It has become slightly easier now, considering ESG and sustainability have become big talking points in the last two years. Shipping, oil and gas, construction companies are willing to invest in conservation projects to offset their emissions. This becomes an environmental transaction and the project size is increasing every year. So I'm hoping for the best going forward. 

Please tell us your most favorite book which has impacted your life.

Hermann Hesse's Siddhartha is my favourite book.