Collaborate, not litigate: ClientEarth regional chief on why it has opted for a ‘less adversarial’ approach in Asia

ClientEarth’s work in Asia can be traced back to China eight years ago, when it was invited by the Supreme People’s Court to train judges in environmental justice at a time when hundreds of environmental courts were being set up to tackle the country’s air pollution problems. As the non-profit expands its efforts to use the law to create system change beyond China, including in Japan and Southeast Asia, it looks set to repeat the same modus operandi of focusing on capacity building, instead of litigation. 

The non-profit’s Asia regional director Dimitri de Boer, now based in China and who personally led the setting up of its China office, said ClientEarth also worked with the Chinese authorities on making its overseas investments greener. In 2021, Chinese president Xi Jinping made a promise that the country would no longer build coal-fired power projects abroad. For de Boer and his team who helped the government develop that specific policy, it was a “proud moment”. “This might have been one of the biggest good news stories for climate change since the Paris Agreement,” he said.

De Boer, who is fluent in Mandarin, thinks that a judge’s decision can be many times more important for the environment, as compared to other efforts, and it is that belief that underpins his work at ClientEarth. Speaking to Eco-Business on the sidelines of a judicial training programme for judges from Asia held in Indonesia, he elaborates on the role that ClientEarth hopes to play in Asia. 

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Bringing a case against a large company or a government department in Southeast Asia could backfire on us. 

Why choose a collaborative approach in Asia? 

We try to understand where we can be most effective in different jurisdictions that we operate in. We don’t have a one-size-fits-all approach. In Europe, our role as a litigator is perhaps one of our most important roles but we also try to advocate for better laws and regulations there and work on capacity building. 

When we started in China, it was very clear to us that the invitation was to work with the government authorities and the judiciary to help build systems for the environmental rule of law. Over the past few years, we have done that very effectively. Part of the reason why they asked us to work with them was because we are experienced in public interest litigation and it is this skills set that adds a lot of value. That is what we bring to the table. Public interest litigation is also a helpful way to understand how we can be most useful in Southeast Asia. A lot of the countries in this region are still developing their systems for environmental rule of law so it is the most effective way for us to operate.

Of course, there are also lower risks for us when we adopt this approach. I think it is more appropriate as a Western non-governmental organisation to be supportive and collaborative rather than choose a more adversarial approach. For example, bringing a case against a large company or a government department in Southeast Asia could backfire on us. “These Westerners don’t understand our country,” they would say. I think that risk would still be there if we were to support a local group to launch a lawsuit. 

There is a substantially large Chinese delegation of judges and representatives of the judiciary that is participating in the Asia Pacific Judicial Training Programme. What do you think is their approach towards participating in such exchanges with their Southeast Asian counterparts?

In China, we have been working with specialised environmental courts and judges and they also have specialised public interest litigation by prosecutors with specialised departments. It has been quite impressive how the courts and prosecutors have stepped up in using the law for environmental protection. I think the Chinese judges have a lot of interesting experiences to share. For example, in Asia, you might issue a ruling against a government department but be ignored – the department doesn’t follow the order. What do you do? China doesn’t have that problem. The most important change over the past few years in China is that the laws and regulations are now being implemented, whereas previously, perhaps they weren’t. Businesses at all levels in China understand that they now must comply with these environmental laws. You can see the difference. 

If you were to name a key development that has emerged in the climate litigation space in China in recent years, what would that be? 

Litigation really started because of China’s concern about air pollution. That was the overarching reason. In 2014, that came to a boiling point when public awareness around the issues and the mandate for the government to act on the issue became a national priority. Water pollution also then became a top prioriy. And in recent years, ecology protection, tackling wildlife trade and other biodiversity-related issues have gained traction. Climate change is not yet a big part of the work of the judges and the prosecutors but the courts are exploring it. In the next couple of years, that will become important. 

In Europe, we see ClientEarth bringing company directors to court and challenging them on their fiduciary duties when it comes to climate action, but in Asia, boards are just beginning to realise that they might bear liability if they fail to take action to address climate change risks. Are there limits to a collaborative approach if we want corporates in Asia to take responsibility? 

If you want a company to behave in a different way, you have to understand what drives its decisions. That can be very different (in different places). For example, a lot of companies in the region are state-owned companies, and the leverage for getting them to change will be quite different from private companies. So working with government departments to try to understand and develop policies that will compel state-owned businesses to move is, in my mind, a perfectly legitimate strategy. In fact, it is very effective. 

Of course there are also a lot of private companies in the region. The drivers for change could be a company’s concerns about profitability or risks. We’re talking about, for example, stranded asset risks. It could also be shareholder or consumer pressure, or government regulatory pressure, or the risk of litigation. We are not singling out any one of these approaches. We have developed a guide to advise companies on what greenwashing is, and it has been a very popular product in the region since the concept is still somewhat new. 

We also have a guide on shareholder resolutions, and we are bringing together central banks and financial regulators for capacity building work and exchanges on sustainable finance. They are trying to understand the type of policies that their counterparts in other regions have and the direction each country is moving in. This helps them become more confident in pursuing a similar step and convincing their colleagues or government that it is the right move. 

Judges from Asia were very interested in biodiversity-related litigation and nature rights at the training sessions. What are your views on using the law to protect nature? 

It would be helpful for NGOs or other public interest litigation if you could say that the interests of nature are being harmed and that can be a legal standing for a case. It is also helpful if a judge would want to rule in favour of nature, and if he or she could identify the protection of nature as an objective in itself. Currently, a lot of legal systems in the region still don’t recognise that but it is an interesting development. 

More concretely, we have been supporting efforts on biodiversity protection, including the new Kunming-Montreal global framework for biodiversity protection. We worked with Chinese and European authorities for about four years and negotiated with them on the sidelines for that. That has been tremendously valuable in terms of getting to a more robust outcome and we are happy with the progress made. Many countries have frameworks on biodiversity protection but the implementation is terribly weak. How do we change that? Can we make that shift? We are looking into the supply chains of various commodities and trying to see if different actors in the supply chain can do better in terms of eliminating illegal land use change and deforestation. We also do work around unregulated and illegal fishing, engaging with governments to get them to step up law enforcement. In terms of clamping down on the illegal wildlife trade, because China has been the largest market for many of these products, working with the authorities has triggered a shift and an improvement. 

Eco-Business’ participation in the Asia Pacific Judicial Training Programme and accommodation at the training centre were sponsored by ClientEarth.