ISABELLA WIJNBERG IN THE FINANCIEELE DAGBLAD
16 September 2019
Joris Polman (reporter), Amsterdam
The Netherlands will increasingly be the battlefield for class actions on climate change
Top lawyers expect that Dutch courtrooms will increasingly be the battlefield where international court cases on climate change damage will be fought. Activist groups are not just focusing on the government. Rather, it is the business community that will have to deal with claims more often.
This is shown by a survey carried out by law firm Houthoff. Headed by Isabella Wijnberg, lawyer and class action expert, a team from the law firm in the Zuidas business district interviewed forty experts from eight different countries about trends around class action claims.
The Act on Redress of Mass Damages in a Collective Action, adopted in March, is what gave rise to this survey, says Wijnberg. Citizens and businesses affected by the same event, such as climate change, can use this to collectively claim damages in court. In a single procedure, a court will determine whether a company or organisation has committed an offence and what the compensation should be. This new act, the refined legal infrastructure and the reliability of the judiciary are what makes the Dutch legal system popular internationally, Houthoff concludes.
Houthoff lawyer Wijnberg points out that the rise of climate cases is "really an important trend" in this respect. Climate change is the kind of issue that will increasingly lead to class actions in the future. Climate change can lead to more extreme weather with, for example, extended periods of drought or more floods.
The action brought by the Urgenda foundation against the government is a high profile example of this. Urgenda took the Dutch state to court to force them to take the reduction of greenhouse gas emissions more seriously.
But the legal battle is not limited to the government. On the contrary, says Wijnberg. Rather, it is companies that increasingly have to deal with it. A quote from campaigner Laurie van der Burg of Friends of the Earth Netherlands (Milieudefensie) that Houthoff included in its survey, exemplifies this. "Where the first wave of climate litigation only focused on governments, this new wave will aim at companies and at the investors, directors, financiers and insurers behind these companies."
These cases will not be easy to win, Wijnberg thinks. "It is not easy to link climate damage to specific companies. Research into this is still in its infancy", she says. But such procedures are not just about compensation, they are also about reputation. Wijnberg: "Climate change is high on the social agenda. And with a court case, activists immediately get publicity that may harm the reputation of the company involved." The question is what this status of ‘claim paradise’ means for the business climate in the Netherlands. Several lawyers have warned in the Houthoff survey that the legislature and supervisory authorities should not forget to take the increased risks for the international business community into consideration.
Wijnberg, however, concludes that the new class action act is "well-balanced". "The possibilities to claim damages are enormous. But the court also sets higher demands on the admissibility of a claim." The question is whether going to court is actually preferable. Legal proceedings are time-consuming, surrounded by publicity and the outcome is uncertain. That’s why Wijnberg thinks it's time for "a culture change". The introduction of a specialised ombudsman, for example, may help to settle claims faster and more efficiently.