Climate Change Adaptation: Climate Contracting & Policy Interventions in South Asia – Recording

GAIL regional event, hosted by GAIL Asia Pacific

Session Summary

On 2 August 2023, GAIL UK and GAIL Asia Pacific, organised a virtual panel focussing on legal tools for climate change adaptation in South Asia. The session was framed within the context of South Asia’s particular vulnerabilities to extreme temperatures and weather patterns, as we have seen bear out through the Pakistan Floods 2022 and other environmental disasters across the region. 

GAIL APAC Chair and panel moderator, Dr. Ammara Farooq Malik, set out the role that lawyers have a role to play in shaping future climate laws, engaging in the drafting of climate clauses and advancing the incorporation of climate change considerations in contracts and other non-legislative formats. Equally, lawyers can and should be informed by the regional local policy landscape. 

This session was intended to introduce South Asian lawyers and law students to climate contracting in the South Asian context, to bring allied regional bodies into the conversation and to provide a template based on similar interventions in Hong Kong and Singapore, that can help to provide a template for action in South Asia. The virtual session was followed by an in-person climate contracting workshop, hosted by AFMalik Law in Lahore. 

The speakers included: 

• Dr. Ammara Farooq Malik | Founding Principal Attorney, AFMalik Law – Attorneys & International Development Consultants and Chair, GAIL Asia Pacific.  
• Brian W Tang | Executive Director, LITE Lab at University of Hong Kong Faculty of Law. 
• Humzah Khan | Programme Manager, The Chancery Lane Project.
• Izabella Koziell | Deputy Director General, ICIMOD. 

Regional Context and Policy Interventions in South Asia

The International  Centre for Integrated Mountain Development (ICIMOD)  is a regional intergovernmental organisation set up by the eight member countries of Afghanistan, Bangladesh, Bhutan, China, India, Myanmar, Nepal and Pakistan, working to tackle the transboundary challenges of the Hindu Kush Himalayan region including climate change, water sacristy, biodiversity loss, and land and ecosystem degradation. 

Izabella Koziell, the Deputy Director General of ICIMOD, emphasised the role of the Hindu Kush Himalaya as the the source of the region’s ten largest rivers, four of the world’s global diversity hotspots and a resource on which between 2-3 billion of the global population relies.

The ‘quadruple planetary crises’ of  climate change, biodiversity loss, pollution and demographic change is manifesting in the region through the loss of some 50% of the region’s glaciers in the last 20 years and  predictions that on the current trajectory, there will will be no glaciers left within 77 years, by 2100, resulting in more floods, snowfall and permafrost. This is already bearing out, with examples such as the Chamoli disaster in India and the Melamchi disaster in Nepal in 2021. 

The impacts are manifold, including an impact on water and food security, agricultural loss, cultural and psychological impacts on communities and pervading natural disasters. Communities and governments in the region remain unprepared for the consequences. 

Relying on its roots in science and knowledge production, ICIMOD works in the regional and global arena, building informal mechanisms for cooperation that are reducing climate and environmental risks, shaping green mountain economies and enabling mechanisms for sustainable mountain development. This work includes working to bring regional protocols and developing an investment framework that brings scalable projects to the Hindu Kush Himalaya region. An element of this is pushing to get adaptation finance to those in the region who need it most. 

The role of commercial contract clauses in the climate crisis

The Chancery Lane Project (TCLP) is a global network of lawyers and business leaders using the power of climate contracting to deliver fast and fair decarbonisation. While an increasing number of companies have begun to declare climate commitments and science based targets, there is often a lack of substance behind those targets or an insufficient understanding of how to attain them. 

Commercial contracts are often a source of emissions and a barrier to achieving climate commitments. While legal responses including legislation and regulation have a role to play, often these solutions are too slow to address and impact the crises facing us. 

TCLP sees commercial contracts as an accessible, understandable, adaptable and easily enforceable delivery mechanism for reduced emissions. Adding climate-aligned wording to contracts mandates positive and systemic climate action at scale. Through a mechanism of climate contracting, legal professionals have the power to transform entire organisations and their value chains, across all sectors and to utilise commercial law as a hugely powerful lever in decarbonisation. 

Noting that TCLP originated in London with the majority of its climate clauses applicable under the laws of England & Wales, TCLP encourages lawyers to engage in a process of clause ‘transpositions’ or making clauses relevant and usable within other jurisdictions. While clauses in the Global North have tended to focus on mitigation and decarbonisation,  TCLP encourages lawyers across South Asia to be innovators in this space to create climate clauses that focus on adaptation, resilience and delivering a just transition.  

The role of lawyers in climate contracting: a case study and template 

Law societies around the world including the American Bar Association and the Law Society of England & Wales are focussed on climate conscious lawyering. Increasingly young lawyers and law students are choosing to join law firms based on their net zero commitments. 

In this context, Brian W Tang, Founding Executive Director of the Law Innovation Technology & Entrepreneurship Lab at University of Hong Kong Faculty of Law (LITELab @ HKU) provided a case study and template of their journey to involve lawyers (private practice, in-house and students)  in Hong Kong and Singapore in climate conscious lawyering, and more specifically, open-source climate contracting. The following LITE Lab@HKU x TCLP Climate Contracting Initiative case study provides a helpful outline of the steps that lawyers and law firms in South Asia and beyond may follow, and adapt to local contexts. 

Step 1	Introduction to Climate Contracting: LITE Lab@HKU is first introduced to TCLP at a webinar event organised by GAIL Asia Pacific : Has Anyone Got a Precedent for This? Climate Contracting and Fostering Legal Innovation
Step 2	Jurisdictional scope: LITE Lab@HKU and TCLP initially discuss rolling out clause transpositions work in, Hong Kong SAR and China. LITE Lab@HKU decided to focus instead on common law jurisdictions Hong Kong SAR and Singapore and has left TCLP China transposition to another group.
Step 3	Lawyer outreach: Lawyers from 2 law firms who had previously worked with TCLP initially sign on. Outreach to lawyers through pro bono, impact and innovation networks in the region including LITE Lab@HKU, GAIL, PILNet and Asia-Pacific Legal Innovation & Technology Association (ALITA).
Step 4	Legal Design Thinking: Apply legal design thinking to expand beyond clause transposition to co-designing climate clauses and playbooks with in-house legal counsel, with an emphasis on clause usability by stakeholders.
Step 5	Organisational infrastructure and delivery:  LITE Lab x TCLP Climate Contracting initiative is currently organised across Hong Kong and Singapore as follows:  Monthly roundtable sessions that provide introductions to new lawyers and updates by coordinators from each of the Working Groups. Setting up Working Groups based on lawyer interests and skillsets, and new ones  launched upon a volunteer coordinator stepping forward: There are currently 4 working groups: (i) Green Loans (ii) Green Investment Funds (iii) Green Capital Markets (recently expanded from Green Bonds) (iv) Green Construction & Engineering. Creating a shared drive for collaboration on commenting on TCLP clauses and sharing of resources, including publicly available precedents. Outreach to relevant industry organisations to ensure efforts align with relevant sector industry initiatives, and for potential collaboration.
Step 6	Expanded scope for impact: Beyond clause transposition, LITE Lab x TCLP Climate Contracting initiative also seeks to  co-design climate clause playbooks to corporate stakeholders, and involvesinvolving interested law students in the clause transposition journey. LITE Lab@HKU has begun with students from University of Hong Kong, and intends to invite other law schools to participate in due course.   Playbooks are aimed to be helpful plain language resources for non-lawyer corporate  stakeholders to better understand the climate contractual obligations for the purpose of ensuring compliance, and pricing and allocation of the costs/risks between the contracting parties, and would include different conflicting contractual negotiating perspectives (eg, lender and borrower) . Drafting these playbooks on a multi-stakeholder non-deal basis enables a balanced approach where parties may sometimes agree to disagree. Discussions begin with Identifying relevant and interested TCLP clauses as a starting point, and the extent of APAC localization/ differentiation would evolve and be determined by each Working Group on a case-by-case basis.
Step 7	Grow awareness of approach: Participate in aligned events to socialise and publicise the work to inspire this approach to climate conscious lawyering and attract interested parties. Since the LITE Lab@HKU x TCLP Climate Contracting Initiative launched earlier this year, its approach has been share at:  GAIL Annual Summit (March 14-15 2023, London) WorldCC Sustainable Contracting Day (May 17 2023, virtual)NYU Grunin Legal Issues in Social Entrepreneurship & Impact Investing Conference (June 6-7 2023, New York)
Step 8	Grow lawyer participation: The LITE Lab x TCLP Climate Contracting Initiative May roundtable included 19 lawyers from 10 law firms and corporate counsel from 4 banks and 1 transportation company, and grows with the expanding Working Group work. Outreach and education constantly continues, such as on-boarding discussions with New York-based pro bono co-ordinators of large US firms for involvement of lawyers from their Hong Kong and Singapore offices.

The panel discussion was followed by an enthusiastic round of Q & A from the audience that consisted mostly of young lawyers and law interns from Pakistan and India. 

GAIL APAC Follow-Up In Person Workshop at AFMalik Law

A GAIL APAC follow-up in person workshop took place at the Lahore office of AFMalik Law . The event launched the Pakistan Transposition of Climate Clauses in partnership with The [Chancery Lane] Project (TCLP). This included a hybrid session with Humzah Khan and the AFMalik Law team at the Lahore office of AFMalik Law, chaired by Dr. Ammara Farooq Malik, with the team from AFMalik Law and interns from all across Pakistan including Islamabad, FATA, Peshawar, Lahore, Karachi, Hyderabad, Sialkot, Faisalabad, Rawalpindi and Multan joining the session.

As a broader platform for the Climate Clauses Pakistan Transposition, Dr. Malik suggested including the Seplaa Group and  Seplaa Consultants Canada Inc’s  Seplaa Global Impact Initiative (SGII) in the collaboration, which focuses on building partnerships between global and regional businesses and institutions through the promotion of sustainable business strategies, impact business, law and policy. 

Discussions around legal innovation are challenging yet exciting as they can create a number of opportunities for legal activism where governments may be slow to respond. After the session, the workshop participants held a discussion in the Lahore office and proposed to have the next meeting to draft a Pakistan Transposition Strategy in November, 2023.