The Privatisation of Climate Change Litigation: Current Developments in Conflict of Laws

The purpose of this contribution is to analyse climate change litigation in an innovative way, considering it as an example of “privatisation” of international law, and unravelling the “ecological” side of conflict-of-laws climate change litigation. The paper will first explain the concept of privatisation of law as applied to international law and what it means in the context of climate change litigation, before moving to a landmark case, whose appeal is still pending in front of a domestic court in Europe: Milieudefensie et al. v. Royal Dutch Shell plc. The focus of the analysis of the cases will be limited to the use of the conflict-of-laws mechanism present in the Rome II Regulation, namely Article 7. The paper critically assesses the principle of ubiquity included in this provision, by looking at the concept of “event giving rise to the damage” as applied in CO2 reduction claims in the existing legal scholarship and using an underexplored ecofeminist perspective. Inspired by the work “A relational feminist approach to conflict of laws” by Roxana Banu (2017), the paper argues for a relational understanding of the concept of “event” and goes further to consider in an ecofeminist perspective the environment as composed of human, non-human beings and natural objects, and of their relations with each other. The article is meant to be a starting point for further research, which for the first time applies ecofeminist theories to private international law.