ABSTRACT
The fifth chapter elaborates on various scenarios where international commercial arbitration will be the ideal means of dispute resolution in ESG/climate/CSDDD-related disputes involving multiple parties, contracts and different supply/value chain tiers. It is shown that arbitration could be in particular useful for (i) disputes arising from failed corrective action plans and remediations (the author proposes a template clause to be implemented in an arbitration agreement), (ii) recourse claims in connection with the CSDDD's civil liability and (iii) the enforcement of climate targets and ESG-related damage claims. Against this background, consolidation and joinder provisions of eleven leading international arbitration institutions are compared and analysed. Chapter 5 also includes the author's proposal directed at arbitration institutions to adopt a specific set of ESG-related arbitration rules offering, among other things, arbitrators’ panels composed of experts in the areas of human rights and environment/climate and provisions for the joinder of injured third parties to be represented by qualified entities listed in the annex of such arbitration rules. ESG-related conformity requirements and disputes in connection with defective goods under the CISG are addressed as well in Chapter 5. The chapter concludes with looking into the very specific legal situation in China distinguishing between domestic and foreign-related contracts and the potential impact of this Chinese legal peculiarity on consolidated arbitrations and joinder scenarios.
