This article takes stock of the many private and public instruments enacted transnationally to tackle the pressing problem of deforestation, ecosystem conversion, and associated human rights violations caused by international demand for and trade in agricultural commodities. The article argues that non-financial due diligence based on no-conversion criteria, and in line with the United Nations Guiding Principles on Business and Human Rights, holds considerable potential for ensuring deforestation-free value chains by enrolling and scaling up firm-level supply-chain management systems and private standards. The article introduces the main features of a possible European Union measure that disciplines via non-financial due diligence the placing on the market of commodities and products associated with deforestation, ecosystem conversion, degradation of forests and ecosystems, and associated human rights violations. Such a measure would also have the effect of streamlining initiatives enacted by private authority.

This article argues that banks should adopt animal welfare policies in the light of the growing acceptance of the need for ‘responsible banking’, which incorporates environmental, social, and governance analysis into credit risk and due diligence processes. The responsibility of banks for animal welfare is underscored by the drive towards greater investment in animal agribusiness, and the vicious cycle through which animal agribusiness can both contribute to, and be impacted by, climate disruption. The article evaluates, through a desktop review, how leading Australian retail banks and agribusiness lenders are addressing animal welfare and climate disruption in animal agribusiness lending. We find that although most banks have made a commitment to animal welfare and climate policies, these often amount to little more than greenwashing. We call for an ecosystem of industry, regulatory, and civil society action to address this danger.

The year 2020 proved to be a clarion call for global society. There is no longer doubt that increasingly we are experiencing unpredictable events, known as ‘black swans’, ranging from pandemics to financial meltdowns. One of the ’climate black swans’ against which experts have cautioned is the financial crisis caused by climate change. In this context, the Australian case of McVeigh v. Retail Employees Superannuation Trust for the first time tested climate risk and the fiduciary duties of retail pension funds. Settled in November 2020, the case has already raised the bar for climate risk practice in pension funds. In particular, McVeigh suggests that courts, as well as out-of-court settlements, may articulate a duty, rather than grant permission, for pension funds to consider climate-related financial risk in their investment decisions.

The article builds on McVeigh to ask two questions. Firstly, what is the role of climate change litigation in promoting climate regulation by pension funds? Secondly, what is the relative importance of pension funds for the risk management of climate-related financial risk via due diligence compared with risk assessment via disclosure? Fundamentally, the article explains climate-related financial risk as a cultural phenomenon and argues that a discussion on pension fund fiduciary duties must consider disclosure in addition to due diligence. It argues that McVeigh articulated the need for a normative approach to pension fund disclosure duties and an extension of the field of climate-related risk disclosure to embrace climate-related risk due diligence.

On 26 May 2021, the District Court of The Hague (The Netherlands) passed an innovative judgment in Milieudefensie v. Royal Dutch Shell. The Court interpreted Shell's duty of care towards the inhabitants of the Netherlands as requiring it to mitigate climate change by reducing the carbon dioxide emissions resulting from its global operations by at least 45% by 2030, compared with 2019. This case comment salutes the identification of a corporate duty of care for climate change mitigation but expresses scepticism regarding the Court's interpretation of this duty. The Court's reading of global climate mitigation objectives and climate science, which form the basis of its determination of Shell's requisite level of mitigation action, is plagued with inconsistencies. It is argued here that, in order to determine the standard of care applicable to Shell, the Court should have relied not only on a ‘descending’ reasoning as to what ought to be done, but also on an ‘ascending’ reasoning accounting for industry practices.

This invited response commentary engages with Benoit Mayer's case comment, published in this issue of Transnational Environmental Law, on the recent landmark decision by the District Court of The Hague (The Netherlands) of May 2021 in Milieudefensie v. Royal Dutch Shell. The Court ordered the oil giant Royal Dutch Shell to reduce at least 45% of its greenhouse gas emissions by 2030 compared with 2019 levels. In this response commentary I build on and contrast Mayer's examination of how the Court arrived at this target. In doing so, I discuss the normativity of tort law compared with international law against the background of the ideas of Martti Koskenniemi. I conclude that the District Court legitimately qualified Shell's business plans as tortious. The specific reduction target is the result of civil procedural rules on evidence and the debate between the parties. In the light of this analysis, I respectfully reject Benoit Mayer's suggestion that sectoral practices should play a more significant role in determining corporate climate mitigation obligations. In my view, such an approach would be dangerously apologetic and lead to dystopian outcomes.

A citizens’ initiative was launched in 2016 in the Swiss canton of Basel-Stadt, demanding that the rights catalogue in the Cantonal Constitution be complemented by a fundamental right to life and a right to bodily and mental integrity for non-human primates. This initiative became the subject of a three-year legal dispute that ended with a decision of the Swiss Federal Supreme Court in September 2020, ruling that the initiative is legally valid and must be put to the people for a vote. This case note discusses the key developments in the dispute, including the groundbreaking decision by the Constitutional Court of Basel-Stadt, which held that cantons are free to ‘expand the circle of rights holders beyond the anthropological barrier’. The authors, who were involved in the drafting of the initiative and acted as legal advisers in the judicial proceedings, offer first-hand insights into legal strategies and shed light on the importance of the case in the context of the ongoing efforts to secure rights for primates around the world.

This article addresses the impacts of the carding system (green, yellow, red) of the European Union (EU) Regulation on illegal, unreported and unregulated (IUU) fishing on the fisheries laws of third countries. Specifically, it analyzes Thailand's national legal reforms, which followed interactions between the EU and Thailand during the yellow card period. Building on past research on the EU's use of market power to exert regulatory influence on third countries, the article explores other factors that might encourage third countries to engage in national regulatory reforms: the EU's powers of expertise, monitoring, and agenda-setting. Finally, the article also considers the legitimacy of the EU's regulatory power over third countries.

Multilateral development banks (MDBs) are crucial in promoting economic growth through their project finance activities. Meanwhile, to address negative effects arising from their development projects, MDBs increasingly have focused their attention on the environmental and social impacts of their supported projects in recent decades. This article analyzes the relationship between the Environmental and Social Framework (ESF) adopted by the Asian Infrastructure Investment Bank (AIIB) and multilateral environmental agreements (MEAs). It argues that better compliance with MEAs by the AIIB and its borrowers in implementing AIIB-supported development projects will be achieved only if its independent accountability mechanism (IAM) can actively examine project compliance with the ESF in the light of MEAs. The AIIB has an opportunity to provide leadership in promoting the fulfilment of MEA obligations in development finance. However, this is contingent on ensuring effective oversight by its newly established IAM moving forward.

In her response to my case comment in this issue of Transnational Environmental Law, Laura Burgers purports to disagree with my analysis on two points. Firstly, she suggests that we disagree on the method that a court should use to interpret the duty of care of corporations on climate change mitigation. Secondly, she disagrees with each of the four inconsistencies that I identify in the decision by the District Court of The Hague (the Netherlands) in Milieudefensie v. Royal Dutch Shell. In this rejoinder, I respectfully disagree with her characterization of our disagreement.